Consumer Products Law: How to Protect Your Business from Recall Risk

A substantial product hazard under Section 15(b) of the CPSA is either a product defect that creates a substantial risk of injury to the public or a product that fails to comply with an applicable consumer product safety rule, and a manufacturer, importer, distributor, or retailer that obtains information reasonably supporting the conclusion that a product creates a substantial product hazard must report that information to the CPSC within twenty-four hours, and the duty to report is self-executing.

Consumer product injuries and regulatory compliance counsel can advise on whether the specific product defect triggers a substantial product hazard and a duty to report under Section 15(b) and develop the CPSC notification and response strategy.

The Consumer Product Safety Improvement Act requires manufacturers and importers of children's products to have their products tested by a CPSC-accepted third-party testing laboratory to verify compliance with all applicable CPSC and ASTM standards before importing or distributing the products in the United States, and to issue a children's product certificate certifying compliance with all applicable rules, bans, standards, and regulations. CPSIA also established specific limits on the amount of lead in children's products, limits on phthalates in children's toys, and requires that every children's product bear a permanent mark identifying the manufacturer.

Consumer product injuries and regulatory risk management counsel can advise on the federal product safety statute most applicable to the specific product and develop the product safety compliance and reporting strategy.

Product liability and business compliance counsel can advise on the CPSIA testing and third-party certification requirements applicable to the specific consumer product and develop the CPSIA compliance strategy.

A reasonable testing program under the CPSIA is a documented system for testing consumer products against the applicable CPSC safety standards and for ensuring that the testing is sufficient to provide a high degree of assurance that the product complies with all applicable rules, bans, standards, and regulations. The CPSC has issued guidance indicating that a reasonable testing program should include initial product testing before the product is introduced into commerce, periodic ongoing testing of production samples, and testing of any component or material that could affect compliance.

Consumer product injuries and corporate compliance and risk management counsel can advise on the reasonable testing program requirements and develop the testing program documentation strategy.

A certificate of compliance is a written or electronic document issued by the manufacturer or importer that certifies, based on a test of each product or a reasonable testing program, that the product complies with all applicable rules, bans, standards, and regulations administered by the CPSC, and the certificate must identify the product covered, the date and place of manufacture, the date and place of testing, and each applicable rule, ban, standard, or regulation. A manufacturer whose product fails testing after a certificate has been issued must stop distribution and take corrective action.

Product liability and regulatory compliance counsel can advise on the certificate of compliance requirements applicable to the specific consumer product and develop the certificate of compliance program and remediation strategy.

Strict liability holds manufacturers, importers, distributors, and retailers liable for injuries caused by defective consumer products regardless of the care exercised, and a product can be defective because of a design defect, in which the entire product line is unreasonably dangerous, a manufacturing defect, in which a specific unit deviates from the intended design, or a warning defect, in which the product is dangerous in a way that is not obvious and the manufacturer has failed to provide an adequate warning, and a retailer may be strictly liable even if it had no knowledge of the defect.

Products liability and defective products counsel can advise on the strict liability exposure applicable to the specific consumer product and develop the product liability litigation defense strategy.

A latent defect is a defect that is not apparent upon reasonable inspection and that may not cause injury until the product has been in use long enough for the defect to manifest, and latent defects create particularly significant product liability exposure because the statute of limitations typically does not begin to run until the injury occurs or until the plaintiff discovered or should have discovered the defect under the discovery rule. A manufacturer whose product contains a latent defect may face claims from consumers who purchased the product many years before the injury occurred.

Product liability and civil litigation evidence counsel can advise on the latent defect issues applicable to the specific consumer product liability case and develop the latent defect defense and expert strategy.

A product recall is initiated either voluntarily by the manufacturer or mandatorily at the direction of the CPSC, and the manufacturer must work with the CPSC to develop a corrective action plan that specifies the scope of the recall, the method of notifying consumers, the remedy to be provided, and the steps to prevent the same issue in future production. A US importer of consumer products manufactured in foreign countries is responsible under US law for ensuring that the imported products comply with all applicable CPSC requirements and cannot rely on representations by the foreign manufacturer.

Consumer product injuries and international trade law counsel can advise on the recall strategy most appropriate for the specific product safety issue and develop the recall management and global compliance strategy.