Consumer Product Safety

Overview

The Consumer Product Safety Commission (CPSC) has jurisdiction over the safety of more than 15,000 types of consumer products, wielding significant influence over thousands of businesses. The CPSC enforces various federal safety laws, including the Federal Hazardous Substances Act, the Flammable Fabrics Act, the Poison Prevention Packaging Act, the Refrigerator Safety Act, and the recently enacted Consumer Product Safety Improvement Act of 2008 (CPSIA), which significantly overhauls product safety regulation in the United States. We have expertise in all of these areas.

Arent Fox has represented clients before the commission since it was established more than 30 years ago, and we provide counsel on all aspects of consumer product safety regulation and product recalls. Arent Fox represents importers, manufacturers, distributors and specialty retailers of children’s products, small appliances, toys, clothing, household furniture, candles, office furniture, household appliances, children’s furniture, cookware, electronics, cosmetic and drug product packaging, exercise equipment, children’s sleepwear, computer products, and video game consoles.

Arent Fox specializes in advising clients on all aspects of the laws and regulations noted above, including the CPSIA. We extensively counsel our clients on the compliance certificates that certain companies must issue for a broad array of products, the new restrictions on lead and certain phthalates in children’s products, the third party testing requirements for certain children’s products, and the labeling requirements for toy and game advertisements. We also draft company and vendor compliance policies to assure corporate oversight and compliance with the CPSIA. Arent Fox actively monitors and prepares comments on its clients’ behalf to CPSC rulemakings, requests for comments, and policy interpretations and participates in public meetings. As an example of its extensive involvement with the CPSIA, please refer to the “Related Articles” Tab on the left for additional information we’ve prepared on CPSC activities.

Toys and Children’s Products

The CPSC regulates all children’s products, such as toys and games, balloons, small balls and marbles, children’s clothing and sleepwear, bicycles and bicycle helmets. Recent matters handled include:

• Managing recalls of baby cribs involving distribution of reconditioning kits to consumers to address defective parts.
• Managing a recall of lead-containing children’s products.
• Evaluating potentially dangerous products, such as yo-yo waterballs.

Children’s Apparel and Sleepwear

Regulation of children’s apparel and sleepwear falls under the Flammable Fabrics Act. Arent Fox has counseled manufacturers on a range of related issues, including:

• Negotiating with the CPSC for use of a new flame retardant on children’s sleepwear.
• Counseling on the development of a new hypoallergenic standard for children’s products.
• Managing an extensive recall of children’s sleepwear.

Household Consumer Goods

Arent Fox represents manufacturers of a wide variety of household products.

Examples of matters we have handled for these clients include:

• Counseling a maker of brand-name cookware on product assessment and providing recommendations for product redesign to minimize regulatory risk.
• Managing recalls of leading brands of fragrant decorative candles due to flame performance and fragrance load.

Home and Office Furniture

Arent Fox advises clients on home and office furnishings. Examples of matters include:

• Consulting with the CPSC on an investigation of potential noncompliance of a line of office chairs with federal structural load standards.
• Advising clients on CPSC rulemaking regarding mattresses.
• Monitoring household furniture flammability standards.

Electronics and Electrical Products

Arent Fox has expertise on safety issues with electronics and electrical goods.

Examples of matters include:

• Evaluating regulatory and enforcement risks associated with electric air fresheners.
• Managing a recall program for electrical pottery-throwing kits and other types of electrical home-use items.
• Counseling a Fortune 100 company on development of safety labeling for in-car portable DVD consoles.
• Conducting product assessment using National Electronic Injury Surveillance System data to evaluate whether a leading video game platform induced epileptic seizures.

Product Liability Actions

Arent Fox has expertise in devising regulatory compliance strategies to reduce product liability risk and to best position companies to avoid or defend against potential tort litigation. We have experience evaluating the likelihood of liability litigation arising from a consumer product recall or other voluntary action taken to address a consumer product safety issue. We are also experienced in handling products liability actions.

Recalls

Arent Fox assists clients in all aspects of product recalls, including the scope of products to be recalled, the potential remedies offered to consumers, determining the need to file reports with the CPSC or other government agencies and the procedures for implementing and tracking a recall and the media impact of a product recall. We also counsel management on the strategic options for their brands when a potential recall arises.

Examples include:

• Negotiating with the CPSC and developing a recall program for a programmable massager
• Counseling on a recall of lead jewelry products popular among young consumers.

Reporting Requirements

The CPSC enforces a strict notification requirement when a manufacturer suspects a consumer product defect creates a substantial risk of injury to the public. Failure to notify the CPSC in a timely manner can result in significant civil and criminal penalties. Arent Fox helps clients evaluate the risks of reporting potential defects.

Enforcement Actions

Arent Fox’s 30 years of experience before the CPSC and our familiarity with commission personnel provide clients with insights on how to manage inspections, investigations, agency proceedings and prosecutions.

Consumer Product Safety Improvement Act of 2008

The CPSIA significantly overhauls product safety regulation in the United States. This sweeping legislation, which came into effect on August 14, 2008, affects an extremely broad array of products, including children’s jewelry, toys and child care articles, apparel and children’s sleepwear, prescription and Over-the-Counter drugs, carpets and rugs, and refrigerators, and imposes additional obligations on manufacturers, importers, private labelers, and specialty retailers.  Congress created an ambitious schedule for company compliance with the CPSIA, and we counsel clients on all aspects of the new legislation. Examples include:

• Drafting certificates of compliance for importers and domestic manufacturers to provide to distributors and retailers for products subject to a CPSC rule, standard, regulation, or ban in accordance with Section 102 of the CPSIA.
• Creating corporate compliance policies to assist companies in identifying products that are subject to the various rules, regulations, standards, and bans that CPSC enforces to ensure compliance with the CPSIA.
• Drafting comments on behalf of clients with respect to the CPSIA requirements for compliance certificates.

Arent Fox actively monitors CPSC rulemakings, requests for comments, public meetings, and policy interpretations with respect to the CPSIA. Please refer to the “Related Articles” Tab on the left for additional information we’ve prepared on CPSC activities and below for links to some of the guidance documents the commission issued in this area:

• Consumer Product Safety Improvement Act (CPSIA) Frequently Asked Questions
• Children’s Products Containing Lead; Lead Paint Rule Timetable
• Section 101 Children’s Products Containing Lead; Lead Paint Rule Frequently Asked Questions
• General Certification of Conformity: Sample, Instructions, and Frequently Asked Questions (FAQs)

Packaging and Safety Labeling Consultation

We are experts in the Poison Prevention Packaging Act, which mandates certain packaging requirements designed to protect children from serious personal injury or serious illness resulting from handling or swallowing household substances, and offer advice on regulations and other CPSC policies to assist companies in designing or redesigning safety packaging or labeling.

Product Development and Design Consultation

Arent Fox counsels clients on ways to reduce regulatory risk associated with new product concepts and designs.

Examples include:

• Consulting on suitable designs for household catalytic fragrance diffusers.
• Advising on redesign and reformulation of toy products featuring small parts, lead content or sharp edges.

Counseling Regulatory Risk and Product Assessment

In evaluating the likelihood of injury from a product, the CPSC relies on information in its national databases, such as the National Injury Information Clearinghouse. Arent Fox uses the Freedom of Information Act to gain access to information in CPSC databases when products may incur heightened regulatory or enforcement risks.

Examples include:

• Consulting on an appropriate product testing strategy for specialty fragrance candles and the regulatory risks associated with their promotion.
• Advising on appropriate use of lead content in various consumer products and assisting clients in developing guidelines on using lead in future product development.

Proposition 65 and Toxic Tort Cases

Arent Fox represents clients in cases involving California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”). Proposition 65 cases may arise as enforcement actions by state authorities but, more frequently, are initiated by plaintiffs’ law firms. Proposition 65 cases raise a number of public and private liability issues as well as civil and criminal law concerns. We are experts in managing these matters and handle other toxic tort litigation throughout the country.

Safety Compliance Counseling

Arent Fox counsels companies on the best regulatory compliance policies and helps clients develop guidance manuals for management and employees and primers on regulatory concerns. In this area we work closely with the Litigation and Food and Drug groups.