Advisory. Client. Consumer Product Safety Commission Key Topics.

Transcription

1 Client Advisory Consumer Product Safety Commission Key Topics Bicycles The Consumer Product Safety Commission s jurisdiction extends to bicycles as well as bicycle helmets. The bicycle regulations are intended to eliminate or reduce the severity of injuries due to mechanical and structural failures, including brake defects, wheel disengagement, steering, shifting, and chain problems. See 16 C.F.R. pt Under the regulations, the bicycle frame, steering system, wheels and brakes must meet standards and tests for safe construction, effectiveness, strength, and performance. Other provisions require protected edges on metal fenders and coverings for protruding bolts; chain guards for bikes that are not freewheeling; locking devices to secure wheel hubs to the bicycle frame; handlebar, seat and stem clamps; and adequate instructions for assembly and maintenance. There are also requirements for bicycles to include reflectors in order to improve night visibility. Bicycles that do not comply with the CPSC regulations are deemed to be banned toys or articles intended for use by children under the Federal Hazardous Substances Act, 15 U.S.C See 16 C.F.R (a)(12). In 1998, the CPSC added mandatory safety standards for bicycle helmets to its bicycle safety regulations. See 16 C.F.R. pt These mandatory standards replaced voluntary guidelines and apply to all helmets manufactured after March 10, They include requirements for impact reduction, chinstrap strength, helmet stability, and added head protection for children aged five and under. They also require manufacturers, importers and private labelers of bicycle helmets to perform tests to demonstrate that their helmets meet these requirements, to maintain records of those tests, and to affix permanent labels to the helmets stating that the helmet complies with the applicable standard. The Commission uses the records to obtain corrective actions if helmets fail to comply with the standard in a manner that creates a substantial risk of injury to the public. Flammable Fabrics All textiles used to manufacture clothing sold in the United States must meet the flammability standards enforced under the Flammable Fabrics Act ( FFA ). 15 U.S.C. 1191, et seq. The Consumer Product Safety Commission ( CPSC ) enforces FFA compliance. Manufacturers and vendors must ensure that the textiles they sell meet all applicable FFA requirements, 16 C.F.R Commonly used fabrics subject to these standards include rayon, sheer fabrics, and highly napped fabrics such as chenille, velour, and cotton terry cloth. Vendors should ensure that: fabrics have been tested and comply with flammability standards; a Continuing Guarantee of compliance has been filed with the Consumer Product Safety Commission; children s sleepwear meets all appli-

2 cable FFA care labeling requirements. Stricter flammability standards apply for fabrics used in children s sleepwear. 16 C.F.R. 1615, In the past several years, the CPSC has brought numerous enforcement actions against, and obtained significant civil penalties from, manufacturers and retailers who have violated the flammability standards and/or the children s sleepwear rule. Children s Toys The Consumer Product Safety Commission has focused considerable attention in recent years on child safety issues, and some of its highest profile enforcement and corrective actions have concerned defective children s toys. Specific CPSC regulations are in place governing children s cribs, rattles, pacifiers, baby walkers, electrically operated toys, dolls, stuffed toys, small balls, and any toys and products intended for use by children under three years old. Separate CPSC regulations govern children s sleepwear, bicycles and bicycle helmets and playground equipment. The CPSC has mandatory regulations in place governing many types of toys, including electrically operated toys, dolls, stuffed toys, and other products that may cause lacerations or punctures, baby walkers, bouncers and jumpers, rattles. and pacifiers. In addition to these specific regulations, the CPSC s lead paint regulations apply to children s toys and other products intended for children. Many of the regulations applicable to children s toys are intended to prevent choking and suffocation. The regulations for rattles, for example, require that a rattle stay in one piece after certain tests are performed on it and that the rattle be designed and constructed so that it cannot enter an infant s mouth and block his or her throat. The pacifier regulations are similar in that they specify requirements and testing procedures for a pacifier shield or guard to achieve this purpose. Separate from these regulations, the CPSC has implemented regulations governing toys and products intended for use by children under three years old. The focus of these small parts regulations is on toys and other articles intended for use by children that are or have parts small enough to create a risk of choking. Several other regulations applicable to children s toys focus on injuries caused by sharp points or edges. For example, the CPSC regulations ban dolls, stuffed animals, or other similar toys having internal or external components that have the potential for causing laceration, puncture wound injury, or other similar injury. Similarly, baby-bouncers, baby-walkers or other articles intended to support very young children while sitting walking, bouncing, jumping, or reclining must meet specific design standards that, among other things, require manufacturers to construct these items without exposed parts capable of lacerations, fractures, bruises, or other injuries to fingers, toes, or other parts of the anatomy of young children. Finally, CPSC regulations governing electrically operated toys are intended primarily to reduce the risk of injuries caused by contact with hot surfaces. The regulations apply to any toy, game, or other article designed, labeled, advertised, or otherwise intended for use by children if it is designed to be powered by electrical current from nominal 120 volt branch circuits. The regulations specify standards for electrical design and construction and define maximum acceptable material and surface temperatures.

3 Choking Hazards In addition to its regulations governing specific types of children s toys such as rattles and pacifiers, the CPSC has mandatory regulations in place that apply to any toys and other products intended for use by children under three years old. The regulations apply to a wide range of products from toys, dolls, and puzzles, to infant furniture, playpens, and strollers. These small parts regulations are intended to prevent injuries to children under three caused by choking on, inhaling, or swallowing small objects. In general, the small parts regulations ban toys and other articles that have small parts or that produce small parts when broken. The regulations specify certain testing procedures for toys with small parts. A small part is any object that fits completely into a specially designed test cylinder that measures 2.25 inches long by 1.25 inches wide. The cylinder approximates the size of the fully expanded throat of a child under three years old. A small part can be a whole toy, a separate part of a toy or game, or a piece of a toy that breaks off during testing that simulates use by children. The regulations also identify guidelines for determining what toys and products are intended for use by children under three. These factors include the manufacturer s stated intent (such as the age stated on a label); the advertising, promotion and marketing of the product; and whether the toy is commonly recognized as being intended for children under three. Certain products are exempt from the small parts regulations. Balloons, books, and other articles made of paper, writing materials (such as crayons, chalk, pencils and pens), modeling clay, and paint sets are exempt because they cannot be manufactured in a way that would prevent them from breaking into small parts when subjected to abuse and testing. Children s clothing and accessories (such as shoelace holders and buttons) and grooming and feeding products (such as diaper pins, clips, barrettes, toothbrushes, and eating utensils) also are exempt because they need to be small to perform their intended purpose. Lead Paint The Consumer Product Safety Commission s ( CPSC or Commission ) jurisdiction extends to lead-containing paint and certain consumer products bearing lead containingpaint. Specifically, CPSC regulations impose a strict ban on paint or any other similar surface coating (such as pigments for plastics) that contain more than 0.06% lead. See 16 C.F.R In a brief summary of these regulations, the CPSC s Office of Compliance has indicated that the ban is intended to minimize the risk of children being poisoned when they eat paint chips containing lead or lick their fingers after they play with or touch products that are coated with lead paint. The CPSC s ban also covers toys, furniture, or other articles intended for use by children that are coated with lead-containing paint. Pieces of furniture such as beds, bookcases, chairs, dressers, tables, and console televisions are covered by the regulations. While paints for items such as boats and cars are not subject to the ban, products that consumers use inside their homes or in schools, hospitals, and playgrounds must comply with the regulations Certain products are exempt from the lead paint ban as long as they contain specific warning labels disclosing their lead content. Coatings used to refinish industrial or agricultural equipment and products marketed solely

4 for use on billboards, road signs, or similar products are exempt. CPSC Organization and Personnel The Consumer Product Safety Commission ( CPSC or Commission ) is an independent federal regulatory agency headed by three Commissioners, nominated by the President and confirmed by the Senate, each serving a seven-year term. The President chooses one Commissioner to act as Chairman. The work of the CPSC is divided among numerous offices, including the Office of the General Counsel and the Office of Compliance. The Office of Compliance handles reporting and recalls under Section 15(b) of the Consumer Product Safety Act. To report by telephone under Section 15(b), manufacturers, distributors, and retailers can contact a general number at the CPSC, , extension 15. Alternatively, reporting entities may contact the individual who is most likely responsible for the subject product. The CPSC has established a toll-free hotline, CPSC, that individuals may call to report unsafe products and product-related injuries or to hear a variety of recorded messages on product recalls, consumer products, and product safety. The CPSC s mailing address is U.S. Consumer Product Safety Commission, Washington, DC It is located just outside of DC at 4330 East-West Highway in Bethesda, Maryland. The Commission also has regional centers in Oakland, Chicago, and New York. Playground Equipment The Consumer Product Safety Commission ( CPSC or Commission ) has issued a Handbook for Public Playground Safety that presents safety information applicable to public playground equipment. The handbook, which is a collection of voluntary guidelines for playground design, installment and oversight, is intended for use by parks and recreation personnel, school officials, equipment purchasers, and installers. Because many factors affect playground safety, the CPSC believes that guidelines, rather than a mandatory rule, are appropriate. The CPSC has similar voluntary safety requirements for home or backyard play equipment such as swing sets, slides, and climbing apparatus. It also has issued several publications directed at parents and school playground supervisors that contain tips to encourage safe use of home and public playgrounds. The CPSC s lead paint regulations also apply to playground equipment. These regulations ban the sale of paint containing in excess of 0.06% lead that is intended for consumer use. They also ban toys and other articles intended for use by children, such as playground equipment, that contain paint with a lead content in excess of 0.06% because they present a risk of lead poisoning in young children. Testing by CPSC staff and some state and local jurisdictions has shown that many school, park, and community playgrounds across the United States have painted metal or wood playground equipment that present a potential lead paint poisoning hazard for young children. Lead paint will, over time, deteriorate into chips and dust containing lead, which can be ingested by young children who put their hands on the equipment while playing and then put their hands in their mouths. Painted playground equipment is especially susceptible to such deterioration as a result of its exposure to sunlight, heat, moisture, and normal wear

5 and tear. CPSC staff has recommended a strategy for identifying and controlling the lead paint hazard that is particularly associated with older public playground equipment. Appropriate measures will be determined on a case-by-case basis and will consider such factors as condition of the paint; the percent of lead present; the playground equipment s age, location, use, and overall safety; the financial resources available to address this and other lead paint hazards; the relative costs of control measures; and the regulatory requirements of individual states, cities, Referral to the Department of Justice for Civil/Criminal Prosecution Following a CPSC investigation under Section 15(b) or Section 37, if the CPSC pursues enforcement and no agreement is reached between the manufacturer and the CPSC staff, the matter is forwarded to the three CPSC Commissioners for a vote on a referral to the Department of Justice ( DOJ ). The CPSC Commissioners have access to all of the information previously provided to the CPSC staff. There is no bar to any ex parte discussions between the staff and the Commissioners. The company can, and in most cases should, prepare a written submission to the individual Commissioners prior to the vote. The proceedings during which a vote is taken are not open to the public. There are no formal procedures for the company to discuss the proposed penalty action with any of the individual Commissioners or their staffs. Some Commissioners will meet with company prior to a vote, others will not. If such a meeting is held, it is likely that a member of the CPSC Office of General Counsel will be present. The Commission does not have the authority to force companies to pay civil penalties. It must institute penalty proceedings in a United States District Court. Athlone Industries, Inc. v. US, 707 F.2d 1485 (D.C. Cir. 1983); Advance Machine Co. v. CPSC, 666 F.2d 1166 (8th Cir. 1981). It is up to the court to determine the amount of the penalties. U.S. v. Shelton Wholesale, Inc., 34 F. Supp.2d 1147 (W.D. Mo. 1999); U.S. v. Advance Machine Co., 547 F. Supp (D. Minn.1982). CPSC penalty proceedings are handled by the Office of Consumer Litigation at the Department of Justice ( DOJ ). This Office, which is responsible for civil and criminal litigation, also represents the Federal Trade Commission, the Food and Drug Administration, and the National Highway Traffic Safety Administration in enforcing consumer protection statutes. The CPSC refers approximately six to eight cases per year, but it is extremely rare that these cases actually go to trial. There is no formal method of tracking how many cases are referred nor the result of the referral. Scope and Use of CPSC Subpoena Power While the CPSC prefers to obtain information on a voluntary basis, when it is unable to do so, it issues subpoenas or general or special orders. The CPSC subpoena can require the production of documentary evidence (subpoena duces tecum) or the attendance and testimony of witnesses (subpoena ad testificandum). 15 U.S.C. 2076(b)(3); 16 C.F.R (a)(4), The CPSC also has the power to issue general or special orders requiring the submission of written reports or answers to questions. Recipients of subpoenas may file a motion to limit or quash

6 the subpoena within ten days of receipt. All motions to limit or quash are ruled upon by the CPSC. See 16 C.F.R The CPSC may negotiate and approve the terms of satisfactory compliance with subpoenas and general or special orders, or extend the time for compliance. See id According to a special report by the Bureau of National Affairs, the CPSC s use of its subpoena power to obtain information about substantial product hazards has increased significantly since 1994 from an average of three industry subpoenas per year, to an average of more than eight industry subpoenas per year during Chairman Ann Brown s term. BNA Special Report (Vol. 27, No. 17 (Apr. 23, 1999). An industry subpoena is typically issued to all manufacturers that make the product that the CPSC is investigating. Thus, one industry subpoena may be issued to many different manufacturers. The failure to permit access to records or to provide requested information may subject a business to civil penalties, criminal sanctions, and individual liability. 15 U.S.C. 2068(a)(3); 16 C.F.R Any person who knowingly violates the CPSA provisions relating to inspections or subpoenas is subject to a civil penalty not to exceed $7,000 for each violation. Each failure to comply constitutes a separate violation. If the violation is a continuing one, each day constitutes a separate offense, except that the maximum civil penalty shall not exceed $1,650,000 for any related series of violations. 15 U.S.C. 2068(a)(3), 2069; 16 C.F.R (Legislation is pending to lift this $1,650,000 cap.) A willful violation can result in a fine of up to $50,000, or imprisonment for up to one year, or both. 15 U.S.C. 2068(a)(3), 2070; 16 C.F.R Any individual director, officer, or agent of a corporation who knowingly and willfully authorizes, orders, or performs any acts or practice constituting a violation of these sections, is individually liable for such violation. 15 U.S.C. 2068(a)(3), 2070(b); 16 C.F.R About Kelley Drye Collier Shannon Kelley Drye Collier Shannon, the Washington, DC office of Kelley Drye & Warren, is an international, multidisciplinary law firm that solves competitive problems for Fortune 500 companies, privately-held corporations, government entities, and trade associations. Founded more than 170 years ago, Kelley Drye & Warren has more than 400 attorneys and professionals practicing in eight locations around the world and specializing in: Advertising and Marketing; Antitrust and Trade Regulation; Corporate; Employee Benefits and Executive Compensation; Environmental; Government Contracts; Government Relations and Public Policy; Homeland Security; Intellectual Property; International Trade and Customs; Labor and Employment; Litigation; Private Clients; Real Estate; Restructuring, Bankruptcy, and Creditors Rights; Tax; Technology; Telecommunications; and Trade Associations. New York Washington, DC Tysons Corner Chicago Stamford Parsippany Brussels AFFILIATE OFFICE Mumbai