Archive for February, 2013

Recalling the Meaning of Recall

When the CPSC issues a product recall, we are using the loudest megaphone we have to alert consumers of the need to take action.  Consumers know what the term “recall” means: that recall blog imagethere is a safety problem with a product and there is a responsible party who will correct that problem with a repair, replacement, or refund, the options our statute provides. However lately, we have been redefining the term “recall” to mean something rather different from what all of us understood it to mean.

For example, we have devised the concept of the “recall to warn,” which uses our recall mechanism to get businesses in touch with their customers to provide a warning, possibly  offering a warning label for consumers who wish that. Using the term “recall” is unnecessary to convey the message, and dilutes the word’s strength. But if this usage were not enough of a departure, we have added another flavor to the recall menu: a “recall to inspect.” We recently issued such a “recall” for an infant sleeper regarding mold growth.

Note well: This is not mold that was on the sleepers when they left the factory. Rather, we’ve had reports that the sleeper’s soft base and covering can grow mold if not properly cleaned after getting soiled. The thrust of our “recall” was to ask purchasers to check their products, clean up any mold, and keep the products clean. I don’t necessarily object to alerting consumers to the need for hygiene; I object to our using the recall device to do so.

Recalls suggest a product’s design or manufacture has a problem and consumers need to get the product fixed or return it. This case does not fit those criteria. The risk of mold growing in or around damp cloth is neither unique to this product, nor a flaw.  The “remedy” the consumer was offered through this recall was a reminder to clean the product thoroughly if it gets damp and dirty.  An instruction to clean a soiled product is not a manufacturer-delivered remedy like a return, a refund, or a repair.

This isn’t just semantics. When parents see headlines about recalls of baby products, they worry a manufacturer’s mistake could harm their children. They expect they’ll need to contact the manufacturer for a fix to the mistake—a repair kit, a new unit, or their money back. When consumers see this doesn’t fit their expectations for a recall, they may feel that our warning doesn’t match the label attached to it—that we cried, “Wolf!” At the next recall, they may assume it, too, is just a reminder about good habits and disregard it or file it away as something to check when they get around to it.

I understand and share the desire to make sure this information gets out, but doing so in a way that risks blunting our sharpest tool does not help consumers. If people are unaware of the risk of mold when this or any product is not properly cleaned, maybe we have a role to play in changing that. But that role is not “recalling” a product. Recalls are not warnings, and they are not inspections; they are recalls.

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It’s He-ere . . .

Today, the CPSC’s children’s product periodic testing and certification rule goes into effect. Perhaps the most sweeping rule in the agency’s history, it was spurred by 2008’s Consumer Product Safety Improvement Act. Even before becoming effective, it has substantially affected the agency, the regulated community, and consumers. Starting today, those effects will grow.

After much debate about its details (more on that shortly), the rule is now the law. It sets massive new requirements for the CPSC’s regulated community. To comply with it, companies and labs should have developed systems and procedures to comply with the new requirements and these should all now largely be in place.

Even so, tweaks to those systems will, of course, be necessary. Some of those changes are things that manufacturers and labs can take care of on their own. Others, however, will probably require attention from agency staff and from the Commission. As you encounter problems with this rule, make sure that the agency and I hear about them. Your voice can make a difference. Already, based on pre-implementation concerns, both Congress and the CPSC have made changes to the rule. And as the rule now goes into effect, we can only expect more concerns to be revealed. When they arise, let us know about them.

Of course, as readers of this blog already know, this rule is not my ideal rule. During the many debates leading up to today, I have already filled enough of this space discussing my disagreements with the Commission’s decisions to belabor them here in any detail. To sum it up, I believe we overstated the necessity for third-party testing, ignored opportunities to make the rule more effective, created “gotcha” traps for companies, and paid lip-service to Congress’s demands that we look to make it less expensive. The result is an unwieldy rule that (because of its name) might make consumers feel safer, but holds only speculative hopes of actually making them safer. All the while, they now have the certainty of fewer choices at higher prices.

Yet, though I remain concerned about the unnecessary damage this rule threatens—and as I continue to work to improve it—make no mistake: It is the law. Companies must heed it even where they disagree with it, and violators should expect a visit from our compliance staff. We have lots of resources for helping businesses understand this rule and how to meet its demands, especially for small businesses. If you have not already figured out your plans for complying with the rule, hurry up and fix that. We surely will all learn a lot along the way, but there is no more time for waiting.

A Matter of Trust

How does an obscure provision of law—§ 6(b) of the Consumer Product Safety Act, which tells the CPSC to make sure that the information it released about specific products is accurate and fair—help the agency, businesses, and consumers? RegBlog, published by the University of Pennsylvania Law School, has posted an article that shows just how. You can check it out here


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