House approves consumer protection reform bill

On December 19, the House of Representatives, by a vote of 407 to 0, passed legislation reauthorizing the Consumer Product Safety Commission (CPSC) and included statutory language specifically prohibiting the CPSC from issuing any rule or regulation that expands the scope of federal preemption of state law. The measure — officially called the Consumer Product Safety Commission Modernization Act of 2007, H.R. 4040 — was rushed along through a procedural maneuver that let Congress vote before leaving town for the holiday recess. The text of the bill can be viewed by clicking here.

The legislation creates the toughest lead standard in the world, as well as significantly increase funding and staffing for the Consumer Product Safety Commission (CPSC). “This legislation is a common-sense solution to our national consumer safety crisis,” said Rep. John D. Dingell (D-MI), Chairman of the Committee on Energy and Commerce and an original sponsor of the bill. “The American people and, especially, American parents are demanding swift action to protect children from dangerous imports and contaminated toys. This legislation creates the toughest lead standard in the world for children’s products and I’m proud that policymakers, consumer advocacy groups and industry leaders have worked together to move this bill forward. I look forward to supporting H.R. 4040 on the House floor and hope to see it approved as quickly as possible.”

H.R. 4040 increases funding for the CPSC, giving them more resources to conduct better oversight of consumer products, especially those imported from abroad. This year the CPSC’s budget was a mere $62 million even though the agency regulates a $1.4 trillion industry. H.R. 4040 increases the budget of the CPSC to $100 million in fiscal year 2011. This increased funding will allow the CPSC to employ more product inspectors and investigate more reports of injuries and deaths caused by consumer products.

The Public Affairs lobby team of the American Association of Justice worked successfully with the House Energy and Commerce Committee and Democratic Leadership to include terrific language in the Committee Report, which is the official statement of congressional intent. The Committee Report language formally and specifically disapproves the CPSC’s effort to override state common law by including preemption language in preambles to its proposed rules and final rules. Specifically with regard to preemption language in the preamble to a recently issued rule on mattress flammability, the Report states “this preamble should not be accorded deference by State or Federal Courts.”

The Report also specifically identifies the importance of “tort actions based on negligence” which the Committee says “are predicated on procedures and standards developed over hundreds of years of American and English jurisprudence.” And it says this about the preservation of common law remedies generally: “The preemption provisions of the statutes under the jurisdiction of the CPSC are clear, and State common law actions and standards are not preempted.”

This is a tremendous victory for consumers and for our clients.

Health panel votes to ban child cold medicines

Federal heath advisers voted Friday to halt the sale of over-the-counter cold and cough medicines for children under the age of 6. Click here to read the FDA patient safety news on the topic.

The Food and Drug Administration panel based its ruling on findings that the medicines were ineffective for children in the age group. In rare cases, the medicines may be harmful to children, advisers concluded. Last week manufacturers of the medicines withdrew more than a dozen products labeled for toddlers and babies.

To view the full New York Times report, click here.

Consumer protection agency not what it seems

Most consumers still believe that if a product is on the shelf of a reliable store like Home Depot, somebody has tested it and proved it safe. At the least, they assume they would have heard about any dangers, the way they know about toxic substances in Chinese toys and toothpaste. But as Eric Lipton reported in The New York Times Times this week, that can be a dangerous assumption to make. Lipton reported on a dangerous sealer that sat on store shelves even after a recall. To view that article, click here.

In an editorial in The Times, it is pointed out that the agency charged with monitoring products – the Consumer Product Safety Commission (CPSC) – has been severely hampered. As the piece noted: “Under the Bush administration’s ideological drive to weaken agencies that regulate business, the commission has been “hollowed out,” in the favorite Washington phrase, to less than half its former strength. Its staff, which was 978 strong in its heyday, now numbers only 401. It has outdated laboratory equipment, and in another sign of neglect, the Bush administration has failed for months to appoint one of the commissioners.”

The Times calls for a stronger CPSC and better protection for consumers. To read the full editorial, click here.

 

Fisher-Price Recalls Licensed Character Toys Due To Lead Poisoning Hazard

The U.S. Consumer Product Safety Commission, in cooperation with Fisher-Price, announced a voluntary recall of its Sesame Street, Dora the Explorer, and other children’s toys. Consumers should stop using recalled products immediately unless otherwise instructed. For additional information contact Fisher-Price at (800) 916-4498 anytime or visit the firm’s Web site at www.service.mattel.com.

About 967,000 units, which were manufactured in China, are involved in the recall because surface paints on the toys could contain excessive levels of lead. Lead is toxic if ingested by young children and can cause adverse health effects.

The recall involves various figures and toys that were manufactured between April 19, 2007 and July 6, 2007 and were sold alone or as part of sets. The photographs show examples of the products involved in this recall. The model names and product numbers for the recalled toys, which are all marked with “Fisher-Price,” are listed below at the CPSC site which can be viewed by clicking here. The toys may have a date code between 109-7LF and 187-7LF marked on the product or packaging. They were sold at retail stores nationwide from May 2007 through August 2007 for between $5 and $40.

Consumers should immediately take the recalled toys away from children and contact Fisher-Price. Consumers will need to return the product and will receive a voucher for a replacement toy of the consumer’s choice (up to the value of the returned product).

CPSC to stiffen regulations on imports

The Consumer Product Safety Commission announced proposed plans Thursday to stiffen government regulation on products imported into the United States and broaden safety standards across the board. The proposed regulations follow widespread uproar over imports from China and other consumer safety issues. You can view the New York Times report by clicking here.

Segway recall

Segway Inc., in cooperation with the U.S. Consumer Product Safety Commission (CPSC), is voluntarily recalling Segway PT(s) to install revised software. All owners should stop using the Segway PT immediately and call 800-750-6557 (toll-free) between 8 a.m. – 8 p.m. ET, Monday through Friday, or visit www.segway.com to register for a free software upgrade.

This voluntary recall applies to all i Series (i167, i170, i180), e Series (e167), p Series (p133), XT (cross-terrain transporter), GT (golf transporter) and Segway i2 models sold through mid-September, 2006. This voluntary recall does not apply to the Segway x2 model.

A condition has been identified in which the Segway PT can unexpectedly apply reverse torque to the wheels, which can cause a rider to fall. This can occur when the device is tilted back by the Speed Limiter and the rider comes off and then back onto the device within a short period of time. Segway Inc. has received six incident reports with event logs of the personal transporter not operating properly, resulting in injuries to the head and wrist of users.

Segway is offering a free software upgrade to address this issue. In the meantime, please do not ride a Segway PT(s) until after the revised software is installed. Even after receiving the revised software upgrade it is important to use safe riding practices as described in the Safety Video and Riders’ Guide/Getting Started Manual.

Proposed defect reporting rules opposed

Section 15(b) of the Consumer Product Safety Act establishes reporting requirements for manufacturers, importers, distributors and retailers of consumer products. Each must notify the Commission immediately if it obtains information which reasonably supports the conclusion that a product distributed in commerce (1) fails to meet a consumer product safety standard or banning regulation, (2) contains a defect which could create a substantial product hazard to consumers, (3) creates an unreasonable risk of serious injury or death, or (4) fails to comply with a voluntary standard upon which the Commission has relied under the CPSA.4 Companies that distribute products that violate regulations issued under the other laws that the Commission administers — the Flammable Fabrics Act, 15 U.S.C. § 1193-1204; the Federal Hazardous Substances Act, 15 U.S.C. § 1261-1278; the Poison Prevention Packaging Act, 15 U.S.C. § 1471-1476; and the Refrigerator Safety Act; 15 U.S.C. §1211-1214 — must also report, if the violations may also constitute product defects that could create a substantial risk of injury to the public or may create an unreasonable risk of serious injury or death. The Commission has issued an interpretive regulation, 16 C.F.R. Part 1115, that further explains a reporting company’s obligations.

The CPSC has proposed changes to the interpretative regulations surrounding this rule. Our trial lawyer association opposes these changes. ATLA respectfully requests that the CPSC withdraw its proposed revisions to the interpretative rules advising manufacturers, distributors, and retailers how to comply with Section 15(b) of the Consumer Product Safety Act, 15 U.S.C. § 2064(b). The CPSC has not articulated any compelling need for these changes which will lead to reduced hazard reporting and possibly fewer or delayed recalls of defective products. The current “when in doubt, report” approach better achieves the Commission’s goals of achieving clarity and transparency in the hazard reporting process. The use of additional factors to define a “defect” only adds to the confusion and ambiguity to the process and the addition of Section 1115.8 can even amount to a safe harbor protection for corporate wrongdoers.

For the complete text of the letter to the CPSC click here.