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As we have reported in the past, two of the five commissioner spots at the CPSC are currently vacant. The democrat that was nominated by President Obama for one of these open seats in January 2012 was re-nominated in January 2013, but so far, there has been no action on her nomination and the President has yet to nominate someone for the other vacant seat (which by statute, must be filled by a Republican so that there are no more than 3 commissioners of one party).
March 2013
Publications
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March 18, 2013
Publications
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This advisory discusses a class settlement worth $93 million that the West Virginia state court approved, addressing alleged contamination and personal injury claims filed on behalf of nearly 25,000 people and more than 8,000 properties in Bibb v. Monsanto Co., Circuit Court of Putnam Cty. W. Va. (2004). This class action is just one of many related civil actions filed against Monsanto in connection with its former chemical plant in Nitro, West Virginia.
February 21, 2013
Advisories
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The CPSC has filed suit against several manufacturers of high-powered magnet sets seeking to have the products declared “substantial product hazards” so that it may to force a recall of the products. Last week, the CPSC amended its complaint against Maxfield & Oberton to name the dissolved company’s former CEO as a defendant, both “individually and in his capacity as CEO.”
February 21, 2013
Publications
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On January 29, 2013, the California Department of Toxic Substances Control (DTSC) released a revised version of its regulations to regulate consumer products sold in California, “The Safer Consumer Products Regulations.” The proposed regulatory program has evolved through many iterations and revised draft regulations, including previous releases on July 27, 2012, and November 1, 2011. This advisory specifically focuses on changes to regulations relating to trade secret protection in the January 2013 release versus the July 2012 release.
February 7, 2013
Advisories
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As noted in our year-end review, there were 308 recalls in 2012 - a little over 25% of these recalls involved children’s products. In addition, the CPSC issued $4,275,000 in civil penalties, the vast majority of which were for failure to timely report a product hazard. In light of these numbers, and democratic majority on the Commission, businesses can expect the CPSC to continue to be very active in 2013.
January 31, 2013
Publications
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This advisory discusses the California Department of Toxic Substances Control’s (DTSC) revised version of its “Safer Consumer Products Regulations,” intended to regulate the contents and design of consumer products sold in California.
January 30, 2013
Advisories
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This advisory discusses Sargon v. University of Southern California, where the California Supreme Court affirmatively recognized that trial courts have a “gatekeeper” function in admitting expert testimony—signaling a small but important step away from California’s Kelly-Frye test and toward the federal Daubert test.
January 29, 2013
Advisories
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As we reported last month, the CPSC recently filed a suit against the makers of Nap Nanny infant recliners after the manufacturer would not agree to conduct a voluntary recall of the product. Earlier this month, the manufacturer of Nap Nanny filed a motion alleging that the CPSC’s press release incorrectly stated that it was illegal under federal law to sell the product. Although the CPSC had filed suit to stop the sale of the Nap Nanny, the manufacturer noted that the representation that it was illegal to sell the product was false because a court had not yet issued an order recalling the product. In response, the CPSC corrected the press release, but not until after 6:30, after the press release had been up for several hours and long after most media outlets had done their reporting for the day. Even though there has not been a ruling on the recall, several major retailers have voluntarily recalled the product.
January 2013
Publications
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Earlier this month, the CPSC filed a suit against the makers of Nap Nanny infant recliners after the manufacturer would not agree to conduct a voluntary recall of the product. The CPSC reported that it had received reports of four infants who died in the recliners and over 70 additional incident reports of children nearly falling out of the product. This suit comes on the heels of a similar suit filed by the CPSC against the makers of Buckyballs, a manipulative magnetic desk toy intended for adults, and is only the third time in the past eleven years that the CPSC has filed suit seeking a stop-sale order and mandatory recall.
December 2012
Publications
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The re-election of President Obama will have a significant impact on the CPSC. For the last year, only four of the five Commissioner spots have been filled and there has been an even split – 2 Democrats and 2 Republicans. At the end of October, the term of Republican Commissioner Northup expired. Thus, in the near future, President Obama will have an opportunity to appoint two new Commissioners – one to fill Northup’s spot and one to fill the spot that has been vacant for over a year. The terms of the remaining three Commissioners are set to expire during Obama’s second term so Obama will also have an opportunity to reappoint the three existing Commissioners or appoint three new Commissioners. This means that by the end of his second term, all five Commissioners will be Obama appointees. By statute, ”not more than three of the Commissioners shall be affiliated with the same political party.” Thus, even a completely Obama appointed Commission will have 3 Democrats and 2 Republicans.
November, 2012
Advisories
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Over the last year, we have reported on a suit filed under seal by a company challenging the CPSC’s decision to publish a complaint on the CPSC’s saferproducts.gov database that the company alleged was materially inaccurate. This week, the U.S. District Court for the District of Maryland published its highly anticipated opinion on the issue. In a very lengthy and detailed 78 page opinion, the Court chastised the CPSC for its continued efforts to publish the report and granted the company’s motion for summary judgment, thereby permanently preventing the CPSC from publishing the report. The Court also granted the company’s right to proceed under seal and heavily redacted its opinion so that neither the plaintiff nor the product that was the subject of the report could be identified. Further information on this important case is contained in the following Law 360 article, which came out last week.
October 2012
Advisories
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There is no way around it—the CPSIA’s periodic testing requirements for children’s products are burdensome. The regulations require manufacturers to conduct “periodic testing” of a “sufficient number of samples” to provide a “high degree of assurance” that the tests conducted demonstrate the ability of the product to meet all applicable standards. There are a lot of unanswered questions as to what this all really means, but this article will help shed some light on some of the most significant requirements of the new regulations.
Fall 2012
Publications
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As consumers have become more environmentally conscious, manufacturers have increasingly used environmental benefit marketing claims to promote sales of their products. The Federal Trade Commission (FTC) has created guidelines, known as the Green Guides, to aid marketers in properly utilizing environmental benefit claims, out of concern that consumers’ perceived environmental benefit may exceed the actual environmental benefit provided by the manufacturer. On October 1, 2012, the FTC released its final revisions to its Green Guides after a multiyear investigatory process, which included reviewing comments submitted by companies, trade organizations, government entities and individuals. This advisory outlines the major changes contained within the final revisions to the Green Guides.
October 2, 2012
Advisories
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Last month we told you about two administrative complaints the CPSC filed against manufacturers and distributors of high-powered magnet sets. The CPSC has since continued its efforts to reduce what it calls “the serious risks posed by hazardous, high-powered magnet sets” by voting to promulgate rules governing them. The Commissions’ objective is to create a standard that would set performance requirements for magnet sets based on their size and strength. Those who wish to submit rulemaking comments must do so by mid-November 2012.
September 2012
Advisories
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The CPSC recently filed an administrative complaints against two manufacturers and distributors of magnet desk sets/novelty items that are marketed and intend for adults. This is only the second time administrative complaints have been filed by the CPSC in over a decade. According to a recent article, “the suits are so rare that the agency will have to borrow an administrative law judge from another agency to oversee them.” And in case the administrative complaints were not enough, the CPSC staff issued a recommendation that the CPSC ban the products, similar to the 1998 ban of lawn darts.
August 2012
Advisories
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The CPSC has continued its trend of increasing regulations of children’s products. Recently, by a vote of four to zero, the CPSC approved a new mandatory federal safety standard for play yards. The mandatory requirements include latch and lock mechanisms to prevent the play yard from folding, as well as minimum side height requirements. Several tests are also required including a stability test to prevent tipping, entrapment tests for play yard attachments, floor strength tests, and a test to prevent head or neck entrapment by a play yard’s top rails. According to the CPSC, there were more than 2,100 reported incidents with play yards between November 2007 and December 2011. This new mandatory play yard standard will go into effect six months after the final rule is published in the Federal Register. The CPSC’s press release on the new standard can be found
here.
July 2012
Advisories
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Last month’s recalls of 12 children’s products represents the most recalls in a single product category in the past year. This dramatic increase in children’s products recalls may certainly lead to recall fatigue among parents who are already inundated with information on child product safety.
June 2012
Advisories
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May 2012
Advisories
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The CPSC and U.S. Customs are increasingly coordinating efforts to prevent unsafe products from entering the U.S. Earlier this month, the CPSC announced that CPSC port investigators and U.S. customs agents “prevented more than 647,000 units of about 240 different noncomplying products from reaching consumers between October 1, 2011 and December 31, 2011.” The report further stated that the most common products identified during the ports of entry screenings were “children’s products containing levels of lead exceeding the federal limits, toys and other articles with small parts that present a choking hazard for children younger than 3 years old, and toys and child care articles with banned phthalates.”
April 18, 2012
Advisories
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February might be the shortest month of the year, but that did not stop the CPSC from announcing more recalls in February than any other month over the past six months — 35 recalls to be exact. In addition, February was the first time in the past six months that child/infant products were not the most frequently recalled product category. That distinction went to housewares, which had nine recalls last month. Over the past six months, housewares have averaged 2 – 4 recalls per month, making the nine recalls in February a significant increase in the monthly average for housewares recalls. Below is a table displaying the total number of recalls announced by the CPSC in each product category over the past six months.
March 20, 2012
Advisories
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As mentioned in the introduction to the November Snapshot, the CPSC’s new regulations on testing of children’s products take effect on February 8, 2013. One of the little-known provisions of the new regulations is that manufacturers and importers of children’s products must have a written policy against exercising undue influence on third-party testing laboratories. The “undue influence” provisions of the new regulations also require employee training on each company’s “no undue influence policy.” This is just one example of the many new requirements in the third-party testing regulations for children’s products.
February 16, 2012
Advisories
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The CPSC Recall Snapshot is a monthly review of consumer product recalls and civil penalties announced by the CPSC
January 2012
Advisories
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January 17, 2012
Advisories
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In addition to announcing the voluntary recalls summarized in the Snapshot, the CPSC announced significant changes to the way it notifies manufacturers of complaints about their products. In the past, the CPSC mailed complaints to manufacturers; now, if a manufacturer has registered for the SaferProducts.gov database, it will receive both SaferProducts-eligible reports and reports not eligible for publication on the database electronically via a manufacturer-only tab on the database. The CPSC also announced that it is enhancing the Business Portal of the database so that businesses will eventually be able to add brand names for their products and the time periods during which they sold the products. These enhancements should lead to a reduction of manufacturer misidentification in reports published on the database.
December 2011
Advisories
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In addition to announcing the voluntary recalls and civil penalties summarized in the Snapshot, the CPSC in October approved extensive independent third party testing protocols for domestic manufacturers, importers and private labelers of children’s products. The regulations, which impose significant new testing and documentation requirements, will go into effect on February 8, 2013.
November 2011
Advisories
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In addition to announcing the voluntary recalls and civil penalties summarized in the Snapshot, the CPSC in October approved extensive independent third party testing protocols for domestic manufacturers, importers and private labelers of children’s products. The regulations, which impose significant new testing and documentation requirements, will go into effect on February 8, 2013.
November 9, 2011
Advisories
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November 1, 2011
Advisories
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Welcome to the inaugural edition of Alston & Bird’s CPSC Recall Snapshot. Each month, the Snapshot will
provide an overview of recalls and civil penalties announced by the CPSC during the prior month, as well as a
brief update on current trends in consumer product recalls. The Snapshot will complement our periodic CPSC
client advisories on consumer product regulations and the CPSC’s new SaferProducts.gov database.
October 2011
Advisories
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August 24, 2011
Advisories
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August 9, 2011
Advisories
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June 29, 2011
Advisories
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Spring 2011
Publications
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2 May 2011
Advisories
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February 9, 2011
Advisories
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February 3, 2011
Advisories
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February 2, 2011
Advisories
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January 20, 2011
Advisories
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January 14, 2011
Advisories
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January 5, 2011
Advisories
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December 1, 2010
Advisories
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November 12, 2010
Advisories
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November 3, 2010
Advisories
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October 18, 2010
Advisories
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October 8, 2010
Advisories
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September 15, 2010
Advisories
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March 8, 2010
Advisories
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Winter 2009
Publications
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May 2009
Publications
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March 12, 2009
Advisories
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February 2009
Publications
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December 3, 2008
Advisories
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November 24, 2008
Advisories
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November 24, 2008
Advisories
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October 7, 2008
Advisories
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26 September 2008
Advisories
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21 July 2008
Advisories