Archive for the 'Recalls' Category

Killer Coffee Mugs?! Really?!

Did anyone else notice CPSC’s recall last week of ceramic mugs?  The agency is concerned about 4400 mugs with hairline cracks.  The hazard is not that they break and cut the user, or that there may be sanitary issues with germs being trapped in those cracks, but that hot liquids might seep through the cracks and cause a burn—not that any burns have been cracked holiday cupreported.

I am a potter.  I have a pottery studio and on most weekends you can find me at my pottery wheel.  But I am not a very good potter and I have made my share of ceramic mugs with hairline cracks.  The problem comes about when a pot that is not fully dried is put into the kiln or when the kiln temperature is either too low or too high for the type of clay and glaze being used.  And although, in those circumstances, it is possible to get small cracks in the surface, it is not possible for liquid to quickly flow out through those cracks. As the agency says in its press release, liquids can seep through, and by the time they get to the outer wall, it is just not possible for those liquids to be so hot as to cause a burn.  An annoying moisture ring on your table, yes, but a burn, no.

This is another example of the agency conflating product quality issues with product safety issues.  In this case, presumably the manufacturer reported the issue in an abundance of caution, probably under the agency’s Fast Track program. It used to be that not every report resulted in a recall and that the agency compliance staff was encouraged to exercise judgment and common sense in determining whether a recall was warranted.  But the position of Director of Compliance has gone unfilled for over three years so it is not surprising that leadership direction to the staff is lacking and staff may not feel empowered to make the sensible judgment calls without risking criticism.

As I have written before, when the agency turns a quality issue into a safety issue, it is wandering way outside its mandate.  Unfortunately, the agency has generated such confusion—and fear–in the regulated community with its enforcement policies that companies feel compelled to report things like mugs with hairline cracks.  That the agency compounds the problem by agreeing to a recall in such a case means that the definition of a safety hazard is totally unpredictable.  Apparently a hazard is whatever the agency says it is. Objective indicators, such as the existence of injuries, have no place in that calculation, replaced instead by speculative conjecture.

It is not clear how consumer safety is furthered by this result.  Perhaps it is time to change the agency’s name from the Product Safety Commission to the Product Quality Assurance Commission. It seems as if that is what the agency is trying to do.

If the Public Doesn’t Buy it, Keep Selling it Anyway

Today, the CPSC is reannouncing a recall because the original announcement garnered such a low response rate—under one percent.  Today’s action and the original recall – done in May, 2014—illustrate how the agency overuses and misuses the recall system.

Here’s the background.  In May, 2014, the agency announced a recall of portable adult bed handles used to assist getting in and out of bed.  According to the agency release, the bed handles could shift and create a gap with the mattress; three individuals in adult care facilities became entrapped and died in the gap between the mattress and the handle.  The agency is concerned about 113,000 bed handles manufactured between 1994 and 2007.  The remedy that the agency proposed is for those who have the bed handles to contact the company to get a set of straps (and 3 pages of instructions) to use to hold the handles in place.  And, yes, did I mention that they also get a sticker to put on the handle to remind them to use the straps?

The agency has taken a business-as-usual, cookie-cutter approach to a problem that needs more creative thinking to solve.  The home health care and adult care industries have traditionally not been ones that have had to deal with the CPSC. And while greater availability of products in the general marketplace makes for greater responsibility on the part of providers, safety regulators also have a role to play in reaching out to those it newly seeks to regulate.  Efforts to craft a safety standard for this product have now been over two years in the making, so writing a standard apparently is not necessarily an easy undertaking.  In the meantime efforts to encourage an industry safety campaign to educate caregivers—perhaps even giving out safety straps where needed–could go a long way to addressing the risks the agency has identified. But up to now the agency has been absent on that front. [Commission Adler and I will be on a program before the home health care industry next month addressing some of these issues.]  My point is that such an educational program would reach more caregivers in a more effective way than the 2014 press release and today’s reannouncement.  Yet, the CPSC is wedded to the notion that only a recall and press release will suffice, in spite of evidence to the contrary.

The recall is trying to reach products that are quite old.  The newest bed handles subject to the recall have been in the market for at least eight years and who knows how many are still being used.  The remedy that is proposed also appears to be somewhat hard to accomplish and that may also explain why so few people have responded. The statute states that a recall remedy shall be a “repair”, a “replacement”, or a “refund”; it does not say a “re-jiggering.”  Yet, that is what this feels like.

The CPSC has overused the recall device to the point that even when the agency yells, often people don’t listen.  It has underused its ability to take on safety campaigns, either solely or in cooperation with other allies who could help it leverage its resources and broaden its reach.  That is too bad.

Shihan vs Goliath, Addendum

It is nice to know that folks out there read what I write.  When I started this blog I really wanted to have a conversation with people who are impacted by the actions of the CPSC, both positively and otherwise.  In response to my last blog post, I got a response from Shihan Qu, among others, and I thought I would share his comments.

Shihan takes issue with my notion that the magnets rule applies only to magnet sets that are intended to be used as adult desk toys and manipulatives.  He reminds me that the final rule blew a hole through this interpretation when the Commission added the phrase “commonly used” to the definition of magnet set.  The definition states “magnets sets are aggregations of separable magnetic objects that are marketed or commonly used as a manipulative or construction item.”  By expanding the definition this way, all powerful small magnet spheres may well end up within this definition since it is the end user, not the manufacturer, who determines whether the product is regulated or not.  One problem is that US based industrial magnet companies who never considered themselves within the definition may well be in for a nasty surprise if their products fall into the hands of the wrong user.

In response to my observation that magnets are easily available for sale online, Shihan responds, “Indeed you can still purchase magnet spheres easily by searching “neocube” or “buckyball” online. The rest of the companies are based in China, and are not easily targeted by the CPSC like we are. As long as there is demand, there will continue to be suppliers who will provide them. What can the CPSC do about them, if anything?”

Finally, I again emphasize that, in its latest action, the CPSC has targeted Mr. Qu personally, as it did when it went after Craig Zucker, in his individual capacity, in the Buckyballs matter.  It seems that the agency is really prickly when it comes to young entrepreneurs who still think that they can challenge the government.  Oh, when will they grow up?!

However, for those who are not willing to accept the notion that the government is always right, this is a troubling development.  And for CPSC attorneys who represent small companies, best let your clients know that, apparently if you want to fight the CPSC, be prepared to put your entire bank account on the line.

Shihan vs Goliath

As the saga of the magnets ban continues to unfold, last week another chapter was added when the CPSC brought yet another action against Zen Cartoon David and GoliathMagnets, the one company that has refused the CPSC’s demand to do a recall.  But this time the agency sued not only the company but also its young founder, Shihan Qu, in his personal capacity.  The CPSC alleges that Zen purchased, and then illegally resold, the inventory of a competitor, Magnicube, that was negotiating a recall with the CPSC.

The law is pretty clear—it prohibits the sale of a product which a manufacturer (including an importer) has recalled.  However, Mr. Qu argues forcefully in the attached newsletter that the products were totally fungible, one magnet being indistinguishable from another, and it was still legal for him to sell magnets identical to those sold by his competitor.  Mr. Qu argues that Magnicube could have sent its remaining inventory back to the factory in China to be comingled with other identical magnets and then shipped to Zen–a more complex transaction but achieving the same result.

In raising this latest action by the federal government against tiny Zen Magnets, it is not my purpose to argue the merits of the case being brought.  Instead, I raise it because, to me, it poses questions of proportionality and discretion. I have repeatedly expressed my concerns about the agency’s troubling willingness to disregard fair process in an “ends justifies means” mindset, at least with respect to this product.   This latest action seems to smack of a vendetta against the one company that did not give in to the agency’s demands, especially since the issue of whether Zen’s magnets should be recalled is well into the latter stages of litigation and, presumably, will be resolved soon.

The government is no doubt arguing that its latest action is needed to keep products it sincerely believes are unsafe out of the hands of consumers.  However, as noted above, the exact same magnets were easily available to Zen from China at the time so the agency’s action would not accomplish this purpose.   Further, with a ban on prospective sales of these products now going into effect (unless it is overturned by judicial review at some point down the road), consumers seem to be protected.

Recalls—the remedy the agency was originally ostensibly seeking from Zen—have been totally ineffectual in getting this product out of consumers’ hands. (It seems consumers like the product and do not want to hand it over, even for money.)  And remember, in spite of the CPSC’s rule banning magnet sets sold as adult desk toys, it is possible to go online to buy sets of magnets, like those at issue here.  I did so this morning.  As long as they are not advertised as having entertainment value, they can be sold.

I wonder whether this latest action, rather than making the government appear strong, makes it appear vindictive and petty, given the force the federal government can bring against a tiny company that dares to challenge it.  I wonder whether the government could not have advanced whatever safety purpose it had in a less Goliath-like way. I am curious what you think.

Note to CPSC: You Really Dropped a Stitch Here!

I am a knitter.  Knitting teaches patience and is a great way to pass time on an airplane.  While traveling, I missed a recent CPSC recall and am thankful to my friendclip-art-knitting-981445 Lenore Skenazy, the author of the blog Free Range Kids, for bringing to my attention important information about a silent killer—yarn.  Since she said it better than I could, the following is from her blog post:

Gracious me! This brand of yarn can unravel! Have you ever heard of such a thing? It’s just too scary! How irresponsible can a yarn maker be? No wonder the Consumer Product Safety Commission just issued this dire warning:

Name of Product: Bernat Tizzy Yarn

Hazard: In finished knit or crochet items, the yarn can unravel or snag and form a loop, posing an entanglement hazard to young children.

Incidents/Injuries: Bernat has received two reports of children becoming entangled from unraveling or snagging yarn blankets. No injuries have been reported.

Remedy: Consumers should immediately stop using the yarn or finished yarn projects, keep them out of the reach of young children, and contact Bernat for a full refund.

Remember! Children are only safe near items that can never unravel or make a loop. Kindly avoid all necklaces, ponytails, jumbo rubber bands, snakes, shoelaces, licorice whips, octopi, thread, phone cords, scarves, kites, jump ropes, taffy (long form), fishing line, string cheese, and, of course, marionettes. – L.

What is the agency thinking?  While unraveling yarn may be a quality problem (for the company to address with unhappy customers), turning a quality problem into a safety issue takes the agency way outside its mandate.

In an earlier post I addressed my concern that silly recalls can serve to make consumers stop listening.  This certainly qualifies as a silly recall. Consumer safety is not advanced by such a result.  However, if the agency persists in pushing its mandate so that product quality problems are viewed as safety issues warranting a recall, what unravels is any predictable definition of a safety hazard and then safety becomes what the agency says it is at any given time. Now that is a snag folks should be worried about.

Shopping the Global E-Mall, Round 2

In my last post, I discussed the growing phenomenon of e-commerce sales directly to consumers from foreign (Chinese) manufacturers. My concern is that the regulatory stance of the CPSC—asserting that a foreign manufacturer is legally responsible for compliance with all U.S. safety standards when a U.S. consumer buys a product directly from that manufacturer—is both naïve and unenforceable.

Therefore, I was interested to see the announcement last week from the CPSC that it has entered into a voluntary agreement with Alibaba, the Chinese e-commerce direct sales company, to work with the agency to try to monitor its platforms for dangerous products.  Kudos to the agency for negotiating this agreement, as modest as it is.

According to press reports, Alibaba handles more e-commerce business than and eBay Inc. combined and, as a platform for third parties, it controls as much as 80 per cent of the Chinese e-commerce business.  Obviously, Alibaba can be a potent ally in policing the marketplace for unsafe products.

Looking at the reported details of the agreement, it is not clear whether it will prove to advance consumer safety in the global e-mall or merely serve as a fig leaf to which the parties can point to show they are doing something.  Alibaba has apparently agreed to block sales of up to 15 recalled products upon request from the CPSC.  Since a substantial number of the over-400 recalls the CPSC does each year are of products from China, there should be no problem finding candidates for this list.  All concede that this agreement is not enforceable. It remains to be seen how aggressive Alibaba will be carrying it out over time.

More interesting is the company’s agreement to make available information about safety requirements to importers into the United States.  U.S. safety requirements are not easily understood, especially those issued since 2009 in response to the CPSIA—see the labyrinthine regulations dealing with testing and certification for examples. Any way to get information to those who are honestly trying to comply can do nothing but help.

Whether this agreement is a modest, but effective first step or just another counterfeit product remains to be seen.  Stay tuned.

Questionable Recalls–Will Consumers Just Tune Out?

Through all the controversial statutory and regulatory changes that have occurred at the CPSC over recent years, the product recall has remained the most reliable mechanism to provide consumers protection from hazardous products that find their way into the marketplace and into their homes.  When I was a commissioner, I was both impressed and proud of the herculean work that the agency compliance staff did to identify the true hazards warranting recalls and to winnow out the incidents that did not warrant further investigation or action.

But a recall will not accomplish its purpose unless the consumer pays attention and either takes advantage of the remedy being offered or otherwise alters behavior to avert the risk.  And consumers will not pay attention if they think that recalls do not affect them, are of no consequence, or, worse, are just silly.  And, if they think that, they will be less likely to pay attention in the future.

This past week, I was traveling abroad, and being stuck in an airport with limited reading material, I read the recent CPSC recall press releases.  One caught my eye, but because I was several time zones away from Bethesda, MD, I could not call anyone at the agency or any practitioners in Washington to ask about it. In other words, I was just an average consumer reading the recall notice.

The recall involved a small folding table that was being recalled because it collapsed when sat upon. The company reported that four consumers sustained injuries after the tables collapsed when the consumers sat on the table tops.  Note that the recalled products are tables, not chairs or benches; they are designed to hold plates and glasses, not people’s derrieres.  From the picture in the press release, these are the kind of small tables that are pulled up beside a chair to hold a plate or glass and then are folded away when not needed.

Apparently four consumers misused the product and were injured as a result.  Foreseeable consumer misuse can be a justification for a recall.  The agency has not really defined when consumer misuse will justify a recall but hauls that rationale out when needed.  Is four consumers being injured by sitting on what is clearly a small table foreseeable consumer misuse or is it just four consumers acting without care or perhaps negligently?  Does this matter in the agency’s eyes?

And why would the company agree to do such a recall?  Perhaps given the hostile climate at the agency right now, it is easier and cheaper to just do a recall than to risk an investigation and the threats of seven or eight figure penalties because four people were injured sitting on a table you sold.  But while this rationale may be understandable, it leads to recalls of dubious merit.  And consumers may stop listening.

It used to be that the agency did not accept such recalls but times have changed.  With this recall, it would appear that now almost any misuse can justify a recall and this seems to be a pretty broad expansion of the notion of foreseeable consumer misuse.  But that is only how it looks to this average consumer.

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