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The CPSIA and Social Media Make Product Issues Public

By Jennifer Taggart

Historically, consumers have not been able to access complaints about products unless a recall was initiated. Consumers seeking information from the Consumer Product Safety Commission were routinely rebuffed because, under the provisions of section 6(b) of the Consumer Product Safety Act (CPSA), the commission was required to obtain prior approval from manufacturers before releasing any information to the public.[1] Accordingly, information was not released to the public until and unless a recall was initiated.


The CPSIA
The Consumer Product Safety Improvement Act of 2008 (CPSIA) seeks to remedy this secrecy by mandating the creation of an online public database of consumer safety complaints. This public database must be publicly available, searchable, and accessible through the Internet. [2] It will permit people to submit reports that must contain a description of the product, identification of the manufacturer or private labeler, a description of the harm, contact information for the person submitting a report, and verification by the person submitting the information that the information is “true and accurate to the best of the person’s knowledge.” Under the CPSIA, within five days of receiving a report, the commission must convey it to the manufacturer, to the extent practicable. The manufacturer then can submit comments to the commission and request that those comments appear in the database with the initial report. Within 10 days of providing the information to the manufacturer, the commission must post the report online.


Not surprisingly, manufacturers and the defense bar are concerned about the database. Comments and testimony submitted to the commission make it clear that manufacturers are concerned that inaccurate information will appear in the database, tarnishing their reputations and perhaps leading to litigation, especially in view of the fact that the database will be maintained by the commission.


Yet, other social media already discuss much of the same information. Social media have already bridged the gap by allowing users to share consumer product safety information quickly and effectively. On the one hand, the database may at least seem more credible than other social media because it will be administered by the commission, although the commission is to provide “clear and conspicuous” notice to database users that the commission does not guarantee the accuracy, completeness, or adequacy of the database contents. On the other hand, citizen enforcers and consumer activists are already using social media to educate and inform consumers about alleged problems with consumer products.


The Mr. Squiggles Saga
Take the sad case of Mr. Squiggles. On December 5, 2009, word that the wildly popular children’s toy Zhu Zhu Pets Mr. Squiggles was toxic and violated U.S. product safety standards spread like wildfire across social media networks during the middle of the frenzied holiday shopping season. Consumers’ elation that they had snagged one of the most sought after toys of the holiday season quickly turned to fear. Parents had waited in long lines to grab a Mr. Squiggles or one of his friends, and the toys sold for substantial premiums on secondary markets such as eBay and Craigslist.


Early in the morning of December 5, 2009, GoodGuide, Inc., a for-profit consumer group, issued a press release stating that Mr. Squiggles’ fur and hard plastic pink nose contained toxic antimony. [3] In animal studies, ingestion of low levels of antimony is linked to liver damage and blood changes. Inhalation of antimony is linked to skin and respiratory irritation, cancer, heart and lung problems, and reproductive toxicity. [4] Antimony is also a skin irritant.


The story that the hottest toy of the year was toxic spread quickly, especially following the enactment of the CPSIA, which was supposed to eliminate toxic toys. News outlets widely distributed the story on television, radio, online, and in print. But what really spread the story was Web 2.0—the web applications that facilitate information sharing across the Internet, such as social networking sites and blogs. Influential bloggers posted stories regarding poor, toxic Mr. Squiggles. Facebook users linked to GoodGuide’s press release in their status updates. Concerned parents and others tweeted the information. Over and over, tweets stated “Mr. Squiggles is TOXIC!” and urged parents to toss the ones that they had purchased. Discussion boards, primarily mom-oriented, analyzed GoodGuide’s results, wondered about antimony’s effects, and consulted on how to return Mr. Squiggles.


GoodGuide claimed that Mr. Squiggles was toxic based on its conclusion that the levels of antimony it detected in Mr. Squiggles violated U.S. consumer product safety standards. But GoodGuide was wrong. On Sunday, December 6, 2009, this author first published in a blog post that GoodGuide used X-ray fluorescence (XRF) analysis, a method that detects total antimony, to test Mr. Squiggles. The CPSIA does not, however, have a standard for total antimony in children’s products that can be measured by XRF analysis. For products under the Consumer Product Safety Commission’s jurisdiction, the sole standard for antimony is a soluble standard for paints and coatings used on children’s toys. [5] Mr. Squiggles’ fur and nose did not, however, appear to have any paints or coatings. Nonetheless, for antimony, the paint and coating standard is a soluble standard of 60 parts per million (ppm). [6] The soluble level is to be determined by dissolving the contained solids in an acid solution. However, XRF technology cannot be used to determine the soluble portion of elements in consumer products. This analysis should not have been used to determine whether Mr. Squiggles complied with the paint and coating standard, assuming the paint and coating standard was even relevant.


Thus, while GoodGuide’s XRF analysis of Mr. Squiggles may have detected the presence of total antimony, GoodGuide was wrong to assert that Mr. Squiggles’ antimony levels violated a U.S. consumer safety standard for antimony. In fact, on Monday, December 7, 2009, GoodGuide issued a “clarification” explaining that it had used XRF analysis, admitting that the only relevant U.S. consumer safety standard involved a soluble, and not total, limit for antimony, and conceding that it should not have compared its testing results with the federal standard. [7] This statement was cold comfort for Mr. Squiggles’ manufacturer, Cepia LLC, which faced decreased sales and a damaged reputation from GoodGuide’s admitted error.


Fueled by Web 2.0 and the Zhu Zhu Pets’ incredible popularity, the Consumer Product Safety Commission investigated the matter with unprecedented quickness. Just two days after GoodGuide issued its press release declaring Mr. Squiggles to be toxic, the commission found that Mr. Squiggles was safe. In fact, in addition to more traditional press interviews, the commission used social media to make the announcement. Late Monday, December 7, 2009, via the online microblogging site Twitter (as @onsafety on Twitter), the commission broke the welcome news that Mr. Squiggles violated no U.S. safety standard and was, in fact, safe.


Mr. Squiggles’ toxic story is instructive for a variety of reasons. Clearly, a social media strategy is important for product liability issues, including the CPSIA. It illustrates that citizen enforcers are using Web 2.0 to distribute their messages effectively and quickly. It also illustrates that government agencies are using Web 2.0 to inform interested parties. Most important, it demonstrates that companies must monitor social media networks to identify potential product liability issues.


Citizen Enforcers, Consumer Activists, and Concerned Parents’ Use of Social Media
Mr. Squiggles is just one of several products involving potential CPSIA violations or other product liability concerns that have been widely disseminated by social media. Recently, social media networks have discussed stories regarding children’s products with rhinestones and crystals, raising potential CPSIA violations; lead in a wide variety of children’s products, primarily polyvinyl chloride products tested with XRF analysis, raising potential CPSIA violations; lead in purses, raising potential violations under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65); [8] and cadmium in jewelry, raising potential Proposition 65 violations and even more. [9]


For example, blogs by concerned parents, published throughout the social media, complained about alleged skin irritation and burns from certain “tagless” tags in children’s clothing well in advance of reports made to the commission and the company’s customer service department. [10] The reach of blogs and social media permitted the concerned parents to form a unified, collective voice about the problem that would not have happened prior to the advent of Web 2.0. These efforts resulted in the commission and Carter’s finally issuing an advisory on tagless tags months after the concerns were aired.


Some citizen enforcers also perform their own testing and publish the results on the Internet. Some, such as HealthyStuff.org and HealthyToys.org, create product and testing databases that may give rise to claims of liability and are searchable by consumers, regulatory agencies, and plaintiffs’ attorneys. Others, such as the Center for Environmental Health, use the test results to form the basis of lawsuits, particularly Proposition 65 lawsuits in California. Other citizen enforcers are just trying to level the playing field and tweet about companies that may not be complying with the CPSIA. Certainly, the portability and simplicity of XRF analyzers has enabled citizen enforcers to check quickly and easily for lead, cadmium, and chromium in consumer products. These results can then be quickly published and distributed through the social media.


Regulatory Agencies’ Use of Social Media
The Consumer Product Safety Commission’s recent report to Congress on the implementation of a searchable consumer product safety incident database specifically incorporates the use of social media. The commission promises that it will implement initiatives to “dramatically increase the public’s engagement with CPSC through use of social media/networking.” [11] The commission has already moved into the social media space. As discussed previously, in the Mr. Squiggles’ saga, the commission used Twitter to announce its conclusion that Mr. Squiggles was safe. With respect to the more recent story regarding cadmium in children’s jewelry, the commission used both social media and traditional vehicles to respond to concerns regarding cadmium in children’s jewelry. The commission also collaborated with its stakeholders using social media by soliciting information on instances of cadmium in children’s jewelry, to work together to reduce the new potential threat to children’s health.


The Role of Social Media
The lesson is that companies must monitor social media for product liability issues and not just brand awareness or promotion. Companies have been willing to promote their brands through social media in a one-sided conversation, but the vast majority have been reluctant to participate fully in social media because they cannot control the conversation.


Traditionally, companies have directed the conversation about their products through advertisements or focus groups, surveys, and polls. For the most part, the only user-generated content they may have received about their products was from toll-free calls and letters. But that has changed with Web 2.0. With Web 2.0, the conversation about a company’s product happens with or without the company. And the conversation is a user-generated conversation.


  • A mommy blogger reviews one of a client’s toys and posts on her blog that the hard plastic nose fell off within five minutes of her two-year-old son playing with it and he almost choked on it.
  • An environmental activist tweets that his testing of your client’s fake leather (vinyl) purses purchased in California indicate elevated detectable lead levels and no Proposition 65 warning.
  • A Facebook user posts that her daughter cut herself on an exposed point in your client’s backpack.

These social media conversations happen daily, and each of these examples could result in liability for a company. The mommy blogger’s review may suggest a violation of the CPSIA’s small part requirement and the distribution of a banned hazardous substance under the Federal Hazardous Substances Act (FHSA). The tweet (the Twitter mention) could signal a violation of Proposition 65 and perhaps also the CPSIA if the purses are children’s products. The Facebook update may claim a violation of the CPSA.


Social media users share their experiences with products, positive or negative. Social networking platforms and applications such as Facebook and MySpace, blogs, microblogging sites like Twitter, Internet forums, and other social media all facilitate the conversations between users. According to a recent National Retail Federation study, moms use social media more than the average adult. And moms like to talk, especially about the products they use. According to the survey, 97.2 percent of moms said they regularly or occasionally give advice to others about products or services. [12] Moms also seek advice, with 93.6 percent saying they regularly or occasionally look to others before making a final decision.


As of September 2009, just over 15 percent of all moms maintained their own blog. The mommy blogging phenomenon includes an expanding plethora of mommy product review blogs—blogs that may identify potential problems with consumer products. But even without maintaining product review blogs, mommy bloggers tend to talk about products and services in their blogs. If those moms are talking about actual or potential product liability issues involving a client’s products, that client needs to know.


The Possible Effect of Social Media on Product Manufacturer’s Potential Liability
This exchange of information in the social media may actually increase a company’s liability exposure. The Consumer Product Safety Commission has jurisdiction over more than 15,000 consumer products. Under the various federal rules enforced by the commission—the CPSA, the FHSA, and the Flammable Fabrics Act (FFA)—civil and criminal penalties up to $15 million can be sought against any person who “knowingly violates” the relevant portions of these laws. For the purpose of the CPSA, FHSA, and FFA civil penalty statutes, the term “knowingly” means “(1) the having of actual knowledge, or (2) the presumed having of knowledge deemed to be possessed by a reasonable person who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations.” [13] If, for instance, a company fails to monitor social media and continues to sell a product that violates any of these acts, the commission may be able to find the company “knowingly violated” the law. Monitoring social media may well be deemed reasonable and due care.


In addition, in the recently published Interim Final Interpretive Rule on civil and criminal penalty factors, [14] one of the additional factors that the commission can consider when assessing a penalty is a company’s safety/compliance program or system:


The Commission may consider, for example, whether a violator had at the time of the violation, a reasonable program/or system for collecting and analyzing information related to safety issues, including incident reports, lawsuits, warranty claims, and safety-related issues related to repairs or returns; and whether a violator conducted adequate and relevant premarket and production testing of the product(s) at issue. [15]


While the commission has not outlined what an adequate safety/compliance program should look like, certainly a program that includes monitoring social media for potential issues would be considered as potential mitigation factor to reduce a penalty.


What Product Manufacturers Can Do
Thus, it is critical that companies develop an effective social media monitoring program designed to identify potential product liability issues. The program should involve marketing/public relations and customer service personnel or contractors but must also involve risk managers or counsel, as appropriate. Marketing/public relations and customer service personnel and contractors should be trained to identify and forward potential problems to the appropriate risk manager or counsel.


In addition, marketing/public relations and customer service personnel should be trained to respond to consumer inquiries consistently. Several popular consumer safety blogs collect and aggregate inconsistent information received from customer service personnel, highlighting inconsistent responses. For example, in connection with bisphenol A (BPA) in infant feeding and mouthing items, several companies were exposed on the Web for their repeated inconsistent and contradictory statements to bloggers and social media users.


For the near future, social media are here to stay. The applications may evolve, but the online conversations will continue. Attorneys must advise their clients of the importance of monitoring social media to identify potential product issues early to reduce liability.


Keywords: Litigation, products liability, Consumer Product Safety Improvement Act, social media


Jennifer Taggart is with Demetriou, Del Guercio, Springer & Francis LLP.


This article appears in the Spring 2010 issue of Products Liability from the Products Liability Committee.


 

End Notes


  1. 15 U.S.C. § 2055(a)(3).
  2. Consumer Product Safety Improvement Act of 2008  § 6A (a)(1).
  3. Press Release, GoodGuide, Inc., Hottest Holiday Toys High in Hazardous Chemicals: GoodGuide Finds Levels of Antimony & Chromium above Legal Limits in Some of Season’s Most Popular Toys (Dec. 5, 2009, 6:00 a.m. EST) (accessed Feb. 7, 2010).
  4. Agency for Toxic Substances and Disease Registry, ToxFAQs for Antimony and Compounds, Sept. 1995 (accessed Feb. 6, 2010).
  5. Solubility is the property of a solid, liquid, or gaseous chemical substance to dissolve in a liquid solvent to form a homogenous solution. A soluble standard specifies the maximum concentration of the chemical that dissolves in a specified solvent in a specified time period.
  6. ASTM Standard F963-07, Standard Consumer Safety Specification for Toy Safety, pt. 4.3.5.
  7. Press Release GoodGuide, Inc., GoodGuide Issues Correction about Its Toy Testing Methodology (Dec. 7, 2009, 14:24 p.m. EST) (accessed Feb. 7, 2010).
  8. Cal. Health & Safety Code §§ 25249.5—25192.
  9. Companies and counsel must realize that federal and state regulations are not the exclusive concern for product safety. For example, although there is no CPSIA standard for cadmium in children’s products except for a soluble standard for cadmium in paints and coatings used on children’s toys, the Consumer Product Safety Commission nonetheless took action to recall certain cadmium-containing children’s jewelry under the Federal Hazardous Substances Act (FHSA). Under the FHSA, the commission can act to address “banned hazardous substances” and did so with respect to children’s jewelry containing high levels of lead before the CPSIA was enacted, and appears prepared to do so with respect to cadmium-containing jewelry items until legislative action is taken.
  10. See, e.g., for example, a posting by Jeremiah to Z Recommends, Carter’s Responds to ZRecs Inquiry, posted Sept. 12, 2008 (accessed Feb. 7, 2010).
  11. U.S. Consumer Prod. Safety Comm’n, Report to Congress Pursuant to Section 212 of the Consumer Product Safety Improvement Act of 2008—Implementation of a Searchable Consumer Product Safety Incident Database 10 (accessed Feb. 7, 2010).
  12. Retail Advertising & Mktg. Ass’n, All About Moms: A RAMA/BIGresearch Initiative, Sept. 2009 (accessed Feb. 9, 2010).
  13. 15 U.S.C. §§ 1264(c)(5), 2069(d), 1194(e)(1).
  14. CPSC Civil Penalty Factors Interim Final Interpretive Rule, 74 Fed. Reg. 45,101, 45,107 (2009) (to be codified at 16 C.F.R. pt. 1119).
  15. Id. at 45,105.

 
 
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