The new year ushered in a series of warnings from the CPSC about inclined infant sleepers posing suffocation risks and dressers posing tip-over risks to consumers. Both products have been under scrutiny by the CPSC over the past year.
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A new bill introduced in Congress earlier this month could increase litigation risk for the retail industry by leaving companies unable to prevent the Consumer Product Safety Commission (CPSC) from disclosing inaccurate or premature information about potential product hazards. The Safety Hazard and Recall Efficiency (SHARE) Information Act, introduced on January 9, 2020, by U.S. Representative Bobby L. Rush (D-IL), would also increase the maximum civil penalty for violations of the Consumer Product Safety Act (CPSA) from $15 million to $50 million. Largely seen as a response to public criticism over the perceived delays in the CPSC’s disclosure of hazards associated with infant inclined sleepers over the last year, the SHARE Information Act would allow the CPSC to tell the public that a product may pose a safety issue before the hazard has been confirmed.
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Innovation and developments in technology bring both opportunities and challenges for retailers, and Hunton Andrews Kurth has a sophisticated understanding of these issues and how they affect retailers. On January 23, 2020, our cross-disciplinary retail team, composed of over 200 lawyers, released our annual Retail Industry Year in Review.
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The theme for this Recall Roundup is effectiveness of recalls. In October, the US Senate Committee on Commerce, Science, and Transportation released an investigative report criticizing the CPSC’s data-handling breaches from the spring. This month, the Office of Oversight and Investigations Minority Staff from the same US Senate committee released a report criticizing the CPSC’s handling of three “high-profile failures to effectively recall dangerous products” last year.
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The Ninth Circuit Court of Appeals dismissed a consumer-fraud class action lawsuit against Diet Dr Pepper maker Dr Pepper/Seven Up, Inc., holding that use of the word “diet” in the product’s name was not false or deceptive advertising in the proper context of the soft drink market.
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Last month, the CPSC and three affiliated retailers issued a joint warning to consumers after the retailers discovered they sold nearly 1,200 units of 19 previously recalled consumer products between 2014 and 2019. The range of products at issue varied, including infant sleepers, scarves, portable speakers, barstools, children’s cardigan sets, hoverboards, beer mugs, coffee presses and infant rattles. It remains to be seen whether any further CPSC action, such as a civil penalty or a requirement to implement stronger recall systems and protocols, will be taken with respect to these three retailers.
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This month, our recall roundup includes an update on the US Senate Committee on Commerce, Science, and Transportation’s investigation into the CPSC’s data breach; guidance on the use of inclined infant sleep products; a warning about liquid nicotine; and information on 18 product recalls.
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With Acting Chairman Ann Marie Buerkle’s earlier announcement that she will leave the CPSC this fall, this month the commissioners elected Commissioner Robert Adler as the new acting chairman. Adler has been affiliated with the CPSC for more than 40 years. He has served as a commissioner since 2009 and previously served as the acting chairman from December 2013 through July 2014.
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This month serves as a reminder to manufacturers, distributors, retailers and importers that consumer products carry strong liability risks when they pose risks of serious injury or death. Steps should be taken to reduce that liability, including the issuance of alerts and recalls to remove the products from the stream of commerce.
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With summer in full swing, several U.S. senators have taken a public step to focus the CPSC’s efforts on dangers at the beach. Airborne umbrellas have become a serious hazard to beachgoers. In fact, CPSC data indicates that there have been over 31,000 beach umbrella-related injuries from 2008 to 2017, including the death of a vacationer after she was struck in the torso and killed by a rogue umbrella in Virginia Beach in 2016. In an unusual move, four senators recently issued a letter urging the CPSC to be more proactive about addressing the dangers posed by beach umbrellas. The senators requested more detailed information about umbrella-related injuries, asked about safety standards to prevent such injuries, and encouraged the creation of a public safety campaign to educate the public about the dangers of beach umbrellas.
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