In February 2018, at the International Consumer Product Health and Safety Organization’s (ICPHSO) Annual Meeting, the U.S. Consumer Product Safety Commission (CPSC), the Department of Health of Canada (Health Canada), and the Consumer Protection Federal Agency of the United Mexican States (PROFECO) signed a trilateral Memorandum of Understanding (MOU) committing to increasing cross-border cooperation. The MOU was “intended to memorialize cooperative efforts already underway, as well as to facilitate future joint activities,” all with the goal of advancing the flow of consumer products throughout North America.

As a follow-up to the MOU signing at ICPHSO, the CPSC hosted the 4th North America Consumer Product Safety Summit (Summit) on May 3 and 4, 2018, at CSPC headquarters in Bethesda. Previous summits were held in 2011 at the CPSC, 2013 in Ottawa, and 2015 in Mexico. The goal of the 2018 Summit was to build on the momentum of trilateral cooperation among the three product safety regulators. On May 3, closed-door meetings were held between the government representatives of the three nations, while the meetings on May 4 were open to the public. The May 4th public Agenda included sessions on: North American regulatory cooperation; e-commerce challenges and opportunities; updates on high-energy Lithium-Ion battery hazards and risks; and a final panel soliciting feedback from North American stakeholders. Presenters included: various representatives from the CPSC, Health Canada and PROFECO, as well as industry representatives.


Continue Reading North American Product Safety Summit: The real deal? That’s up to stakeholders.

kids and laptopsLast week the International Consumer Product Health and Safety Organization (ICPHSO) and ASTM International held a workshop to discuss the recently-updated age determination guidelines from the Consumer Product Safety Commission (CPSC). The age determination guidelines are a resource provided by the Commission to help manufacturers and consumers understand the age ratings on children’s products and toys and to ensure that products are properly labeled. CPSC staff perform age determinations on toy samples to determine the age group for whom the product is commonly recognized. The Commission then devises a categorical list of recommended age ratings. The recommended ratings are used by manufacturers and help determine the type and severity of tests products undergo to detect hazards prior to market release.

The workshop featured remarks from Acting Chairwoman Buerkle as well as other leadership from the Commission and key industry stakeholders. In her opening remarks, Acting Chairwoman Buerkle stressed the importance of receiving comments on the draft guidelines from the public and particularly from those engaged in the marketing and/or manufacture of children’s products and toys. These statements underscore the Chairwoman’s commitment to increasing CPSC’s engagement with the broad stakeholder community.


Continue Reading CPSC’s Revision of Age Determination Guidelines: Updates, New Technology, Enforcement, and Possible International Consequences

Over the past few years, class action plaintiffs have filed a slew of lawsuits against online retailers under the New Jersey Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), which prohibits a seller from offering or entering into consumer contracts that contain any term that violates a “clearly established” New Jersey or federal law. Violations are punishable by a maximum civil penalty of $100, actual damages, or both, and private actions can be brought by “aggrieved consumers” (more on that later).

TCCWNA has been around for years, but class action plaintiffs started using the statute to sue online retailers based solely upon their website terms and conditions without suffering any other injury. From what many retailers can tell, the plaintiffs did this by searching for and then challenging indemnification clauses, limitations of liability, and disclaimers of warranties in website terms of use and terms of sale, merely for the purpose of filing lawsuits.


Continue Reading New Jersey Truth in Consumer Contract Warranty and Notice Act: New Jersey Supreme Court Holds That Injury Is Required

On April 2, 2018, the Consumer Product Safety Commission (CPSC) announced a $27.25 million civil monetary penalty (CMP) settlement agreement with Polaris for failure to report to CPSC immediately when it became aware of defects in certain models of RZR and Ranger Recreational Off-highway Vehicles (ROVs).

At the same time, CPSC and Polaris jointly announced the recall of more than 100,000 Polaris Model Year 2014 to 2018 RZR XP 1000 ROVs. According to CPSC’s press release, “if the exhaust silencer fatigues and cracks, the heat shield may fail to manage heat, which may lead to melting of nearby components or fire.” This is yet another recall to repair additional models of ROVs for potential fires.

Everyone always says that product safety should be nonpartisan. But as evidenced by CSPC actions, there are often votes on key policy and enforcement actions that fall right down party lines. Recently, some have even suggested that the current Democratic voting majority is heavily influencing enforcement and compliance efforts. Acting Chairwoman Buerkle has, in fact, been the lone holdout in a recent provocative vote. In February, CPSC commissioners voted 3-1 to sue Britax to recall its jogging strollers. Acting Chairwoman Buerkle voted against suing for the recall. Before the Britax case, the last time the CPSC sued for a mandatory recall was in 2012, and thus the Britax case was a surprise to many stakeholders. Moreover, Acting Chairwoman Buerkle is on record as opposing record-high CMP settlements. (See Statement of Commissioner Ann Marie Buerkle on the Commission’s Growing Civil Penalty Settlements.)


Continue Reading Is Product Safety a Partisan Issue? CPSC Announces $27.25M Penalty Settlement with Polaris and an Additional Polaris Recall of More than 100,000 ROVs

Internet connected devicesOn May 16, 2018, the Consumer Product Safety Commission (CPSC) will hold a public hearing on the Internet of Things (IoT) and consumer product hazards. The CPSC has previously voiced concern about (or, at least the need to evaluate) the harms IoT technology and smart products may cause to consumers.

In 2016, former Chairman Kaye asked “CPSC technical, compliance, and information technology staff to research what new and potential consumer products may become available, or gain wider use, in the next 3 to 5 years, and to identify potentially new, increased, or decreased consumer hazards associated with these emerging technologies.” The result of that project was published in a January 2017 staff report, Potential Hazards Associated with Emerging and Future Technologies, which discussed the possible harms from IoT products. In the summer of 2017, Commissioner Robinson traveled to Israel to discuss with academic experts, business leaders, and industry stakeholders the “many possible consumer product safety consequences to new, innovative, and technologically advanced products” including smart technology. Her goal was to inspire Israeli scientists and technologists to find technical solutions for many of the emerging product safety hazards resulting from IoT and smart technology. In February 2018 at both the International Consumer Product Safety and Health Organization’s Annual Symposium and The New York Toy Fair, Acting Chairwoman Buerkle further reiterated the CPSC’s commitment to figuring out solutions to the potential hazards that connected products bring to the marketplace by working with CPSC stakeholders.

This upcoming hearing presents an opportunity for all stakeholders to help shape CPSC’s policy related to IoT and smart technology products. CPSC has broad jurisdiction over 15,000 product lines, including toys, cribs, power tools, ATVs, cigarette lighters, small appliances, furniture, electronics, and household products. For companies that sell, manufacture, or import consumer products connected to the Internet, the CPSC is requesting your direct input in this process. CPSC views concerns related to consumer products with IoT capability in two categories:


Continue Reading IoT and Smart Technology: CPSC Wants to Connect with Stakeholders about Connected Products