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Congressional Response to the "Year of the Recall"
By A. Marvin Quattlebaum, Jr. and Dowse B. "Brad" Rustin IV
In 1972, Congress passed sweeping legislation creating the Consumer Products Safety Commission (CPSC), which was established in 1973. The CPSC, an independent federal agency, was charged with protecting the public from unreasonable risks of serious injury or death associated with consumer products. Since that time, the role of the CPSC has gradually evolved. However, in the wake of a number of high-profile recalls and product scares, Congress passed the most dramatic regulatory regime for consumer products since 1972. With the Consumer Products Safety Improvement Act of 2008 (CPSIA or the Act), Congress has again introduced sweeping reform targeted at manufacturers, distributors, and retailers of consumer products

What Is Affected?
The CPSC defines "consumer products" as "any article or component part thereof produced or distributed (i) for the sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise." The CPSC's jurisdiction covers thousands of consumer products that are produced or sold by manufacturers, distributors, and retailers. Despite its expansive regulatory territory—covering over 15,000 types of consumer products—CPSC has been limited in its enforcement ability by its small agency of only 400 to 500 employees, small budget, and disjointed enforcement. To fill these gaps in regulation, a number of states have gone so far as to promulgate their own safety standards, regulations, and testing protocols. These differing standards have been particularly onerous on businesses operating in multiple jurisdictions. These companies must comply not only with federal regulations and testing, but also with the relevant state regulation and testing regime. As would be seen in a number of high-profile recalls, this two-layer process left a number of gaps.

The "Year of the Recall"
The year of 2007 will be remembered as the "Year of the Recall." During this one year alone, there were 20 million toys recalled in the United States, most of which were manufactured in China and recalled due to the use of lead paint. Some of the more high-profile recalls involved the RC2 Corporation, which recalled over 1.5 million Thomas & Friends wooden railway toys, and Mattel, which recalled over 1.5 million Fisher-Price toys followed by an additional recall of 9 million more toys. All of these toys had been manufactured in China. As the number of recalls continued to rise, consumers and politicians began seriously questioning manufacturers' reliance on the overseas manufacture of U.S.-destined consumer goods.

While the Year of the Recall may have motivated sweeping legislation, the legal response has been slower. Immediately in the wake of these recalls, there was significant class action litigation. Somewhat surprisingly, to date there have been no earth-shattering rulings or large awards of punitive damages. This largely can be attributed to problems establishing causation and injury to a particular plaintiff. Instead, the most significant outcome of the Year of the Recall was the passage of CPSIA. The CPSIA has largely been Congress's attempt to avoid a recurrence by enacting stricter rules and stiffer penalties for those companies that fail to comply with CPSC standards. In addition, it increases consumer protection legislation, particularly in the area of children's products.

The CPSIA of 2008
The CPSIA is the strongest single piece of consumer protection legislation since the creation of the CPSC in 1972. It significantly increases CPSC's staff, funding, laboratory facilities, and the number of commissioners. The Act imposes new, stricter limits on consumer products containing lead, specifically children's products containing lead or phthalates (substances that are added to plastics to increase their flexibility, and recently linked to health issues such as autism). Affecting businesses more than any other piece of the legislation, the CPSIA bolsters CPSC enforcement procedures and powers through significant increases in civil fines, criminal penalties, and ease of conviction. Now, a director, officer, or agent of a manufacturer, distributor, or retailer can be convicted of violations of CPSC standards even if he or she has no knowledge of noncompliance with the CPSIA from the commission. It establishes whistle-blower protections and an online CPSC database of reported product hazards and increases state attorneys general enforcement power. Information on violations will be shared by CPSC with other federal, state, local, or foreign governmental agencies. These new requirements and penalties significantly increase the CPSC's power, and as the CPSC continues to implement regulations, the cost and complexity of doing business for sellers of consumer products will continue to increase.

Perhaps the greatest focus in CPSIA pertains to children's products. Though the Act goes into greater detail, a children's product is any consumer product designed or intended primarily for children 12 years of age or younger. In determining whether a product will be classified as a "children's product," the CPSC will examine (1) a manufacturer's statement of intended use of the product, including the label; (2) whether the product is represented as being appropriate for use by children, including its packaging, display, promotion, and advertising; (3) whether consumers commonly recognize the product as being intended for use by children; and (4) whether the product is covered by the Age Determination Guidelines issued by the commission in September 2002. When the product is a "children's product," the CPSIA requires that the product be tested and certified by an approved third-party laboratory. The testing must strictly comply with CPSIA testing protocols, including full destruction lead content testing (the entire product must be tested as one). More importantly, children's products (including clothing, shoes, and toys) must now contain permanent tracking labels to identify the manufacturer, date of manufacture, source of the product, and a batch or run number.

All children's products must now be tested. The CPSC (or a designee) will accredit third-party testing laboratories. In the event a manufacturer uses a proprietary laboratory, the laboratory must be inspected and certified by the CPSC. The third-party testing certification requirements are based on a rolling implementation program.

Certificates to Accompany Products
A certification is applicable to a finished product. Unlike most European testing regimes that allow the certification of individual components, components cannot be manufactured, certified, and incorporated into a number of different products. The certificate must state which CPSC regulations apply to the product. The importer or domestic manufacturer must certify the product. The certificate must identify the location of testing records, as well as the testing date and testing laboratory. This certificate must accompany every import shipment or domestic manufacturer's shipment. The CPSC has promulgated regulations that allow for the use of electronic certificates. It must be supplied to all distributors and retailers of the product. The certificate does not have to be filed with the government, but must be available upon demand.

Testing Requirements
Each regulated or banned substance has individual testing protocols promulgated by the CPSC. Given the reaction by business groups to the testing requirements, the CPSC has somewhat relaxed its testing requirements. Testing, however, still requires that the "sample" in the test be representative of the entire finished product. For example, if a producer manufactures a rocking horse, the entire horse must be mill ground and blended into a homogenous mixture; then a representative sample of the entire horse would need to be tested. The testing procedures for lead paint, for example, have been somewhat relaxed. Paints may now be tested in groups (e.g., mix blue, red, and yellow together in the test sample) if the final test can conclusively determine that no individual paint could exceed the parts per million (ppm) limits under CPSIA. These testing regimes, however, are still quite involved for most manufacturers and may not be familiar to small producers of children's products.

Temporary Stay of Enforcement
The temporary stay provides limited relief from the testing and certification requirements that went into effect on February 10, 2009, for new total lead content limits (600 ppm), phthalates limits (1,000 ppm), and mandatory toy standards. The testing and certification requirements were stayed until February 10, 2009, pending a follow-up vote by the commission as to the possible extension of the stay. Even though manufacturers and importers will not need to test or certify to these new requirements, they must still meet the lead and phthalates limits, mandatory toy standards, and other requirements as set forth in the CPSIA.

Home-Based Business Challenges
The new CPSIA regulations affect not only large manufacturers of products but also apply across the board to small and home-based businesses. Regardless of the size of the manufacturer (a multinational company or an individual), the new requirements will apply. The limitations apply to resellers of children's products as well, though the regulations are slightly relaxed. A reseller of products may not sell products that he or she has reason to believe may contain a prohibited material. Otherwise, the requirements, including all third-party testing requirements, are required of every product.

This has provoked a strong reaction by small business advocacy groups. There are few CPSIA certified labs, and those currently certified tend to be in Asia. The "total destruction" testing is particularly expensive and can be cost prohibitive if the producer makes a few, large children's products. Though the CPSC attempted to relax some of the more onerous testing requirements, the overall effect has been a particular burden placed on small businesses. As the Washington Post pointed out in a December 21, 2008, article, manufacturers are reporting that testing of a single product can run as much as $24,000. A number of small manufacturers have already pulled out of the domestic toy market given the costs of compliance. These responses from small business groups represent the ongoing tension created by CPSIA between consumer advocates and manufacturers of small, historically safe products.

Retroactive Effect
The most controversial portion of CPSIA may not be contained within the Act, but within an interpretation letter issued by CPSC's general counsel. By letter dated September 12, 2008, CPSC's general counsel issued an interpretation stating that the limits and bans under the CPSIA apply not only to the manufacture of goods, but also apply to all products currently in the supply chain or on retailers' shelves. The retroactive effect of the CPSIA has been upheld by courts, including the Southern District of New York. This interpretation has been particularly difficult on some retailers, as they have no ability to pass the costs of compliance back to manufacturers or distributors. Rather, the costs of compliance must be absorbed or passed on to the consumers.

The CPSIA of 2008 represents one of the most comprehensive pieces of legislation since the creation of the Consumer Product Safety Commission. Only through careful attention to the new regulations and bans can a manufacturer (whether a multinational company or home-based, handmade producer) meet the various obligations imposed by the Act. Manufacturers should determine immediately whether any of these new provisions apply to their products. While the testing and certification requirements currently are stayed, manufacturers would be well advised to begin their third-party testing programs for the creation of the mandatory shipment certificates. Though the debate continues over the implementation and regulation of the CPSIA, the CPSC has shown a willingness to impose strict and immediate guidelines following the high-profile recalls of 2007.

More information regarding the CPSC can be obtained from its website, www.cpsc.gov.

A Brief Overview of CPSIA's Impact

Areas of increased and/or new regulation
· Children's products containing lead
· Standards regarding lead paint
· Standards and consumer registration of nursery products
· Labeling requirements for advertising toys and games
· Toy safety standards (choking, small parts, etc.)
· Products containing certain phthalates
· All-terrain vehicles (ATVs)
· Use of proprietary laboratories
· Information identifying supply chains

Enhanced oversight
· Mandatory third-party testing of children's products
· Required use of tracking labels for children's products
· Enhanced recall authority and corrective action plans
· Heightened penalties
· Increased enforcement powers by state attorneys general
· Whistle-blower protections
· Interagency cooperation
· Preemption of other state and local regulations

CPSC Publishes Accreditation Procedure
Third-Party Testing Required
Lead paint (600 ppm) September 2008 December 2008
Cribs and pacifiers October 2008 January 2009
Small parts November 2008 February 2009
Metal jewelry (600 ppm lead) December 2008 March 2009
Baby bouncers, walkers, and jumpers March 2009 June 2009
Quattlebaum is a managing partner and Rustin is an associate at Nelson Mullins Riley & Scarborough LLP in Greenville, South Carolina. Their respective e-mails are marvin.quattlebaum@nelsonmullins.com and brad.rustin@nelsonmullins.com.

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