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Just in Time for Thanksgiving:  Britax Settlement Signals Common-Sense Thinking at CPSC

 

At this time of year, we celebrate blessings large and small. For product sellers, consumers, and others who are interested in both product safety and the administrative process, the new make-up of the CPSC is one of those blessings worth celebrating. The agency has reassessed its approach to its mission of protecting consumers. It is allocating its scare resources on addressing defective and non-compliant products that actually can hurt consumers rather than trying to push the legal envelop with expansive theories that enhance the agency’s power to dictate consumer choice.

Let me give you an example.  The CPSC has now announced that it is settling the administrative case that it brought against Britax Child Safety Inc. earlier this year. Among other products, Britax makes jogging strollers with a front wheel quick release function which is very popular with consumers.  The CPSC alleged that the strollers were defective because some consumers “may not read, may fail to follow or may misunderstand the instructions” on how to use the quick release mechanism and, as a result, the front wheel could detach during use.  Note that the agency did not allege that the instructions were inadequate or confusing but rather that some consumers did not properly follow them and, as a result, suffered injury when the wheel detached.  The CPSC was especially concerned that if the quick release was not properly engaged, the jogging stroller could still operate with no clue to the user of the problem until the wheel fell off.

This settlement is noteworthy for several reasons. First, the case presented a very expansive interpretation of what is “reasonably foreseeable consumer misuse.”  The concept is addressed in the CPSC’s own regulations in only a cursory manor.  The regulations note that inadequate instructions that lead to consumer misuse of a product, resulting in injury, can be a product defect.  However, that is not the situation in the Britax case, at least as it is described in the agency complaint.  The agency did not allege that the instructions were confusing or inadequate, only that some consumers might not follow them.

The role of consumer misuse and the foreseeability of such misuse is also a consideration when assessing whether a risk of injury renders a product defective.  In other words, in assessing the utility of the product verses injury risks that may be presented, anticipating how consumers could misuse a product should be part of the analysis. However, the regulations cannot be read to require that every misuse must be anticipated as part of the product design process.  Nor can they be read to mean that the fact that consumers may ignore clear instructions renders a product defective.

It is significant that the stroller met CPSC safety standards applicable to this product, including the quick release mechanism. Given this and the scant support in the regulations, the case, as brought, suggests that the Commissioners wished to push the definition of consumer misuse to the point that product makers must be the guarantors of the safety of the products they sell regardless of circumstances.  The circumstances of this case, as brought, suggest that if there is the potential for a consumer to assemble a product improperly, even with adequate instructions and warnings, then that product can be considered defective.  Such a result would have a profound impact on today’s marketplace. Given all this, it is wise that the Commission, with new Commissioners taking another look, now has decided to settle the case.

In addition, the settlement is noteworthy for other reasons. The settlement does not acknowledge that a defect exists or that a recall is being done.  Instead it states that the company, among other things, will undertake an information campaign to try to educate customers on the proper use of the quick release function including a video with incentives being offered to promote viewing.  This is a departure from past commission practice insisting on calling every negotiated remedy a recall even if it was not. (See the Lumber Liquidators “Recall to Test” for one example.)

Because no recall is taking place, the product can continue to be sold on the secondary market.  Had the company agreed to call this a recall, the Consumer Product Safety Act would penalize a seller of a product recalled by the manufacturer.  Certainly, this is good news for consumers who wish to buy this product used and who are able to follow instructions on the proper use of the quick release feature.

More broadly, this settlement offers an opportunity for the CPSC, safety professionals and others with a stake in advancing product safety to begin a more thoughtful and productive conversation about reasonably foreseeable consumer misuse of products.  The Britax case, as brought, pushed the definition of consumer misuse to a point of meaninglessness—it would mean whatever a majority of commissioners decided on any given day.  Putting some better-understood bounds around the term would provide helpful clarity. And that would turn a turkey of a decision to sue into something we could all be thankful for.

 

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Saying It’s a Recall Doesn’t Make It So

With the CPSC’s blessing, a large furniture company recently sent out wall anchors for its children’s dressers to address a tipping hazard and the accompanying CPSC press release did not refer to the activity as a recall. Subsequently a child was killed when one of the dressers fell. Chaffing under criticism from its decision to allow the company to do a “non-recall recall”, the powers-that-be at the CPSC have now apparently decided that every corrective action or other announcement about a product must be labeled a “recall.”  Commissioner Buerkle has pointed out why this rigid adherence to labels is bad policy.  And this past week we have seen why her concerns are well-founded.

The issue involves the agency’s investigation of flooring made in China and sold by Lumber Liquidators, which allegedly emitted dangerous levels of formaldehyde. After the issue was described in a 60 Minutes segment in March, 2015, the company responded by agreeing not to sell the Chinese flooring and to test the flooring of those consumers who so requested. After over a year of extensive study, testing and investigation by several different agencies, no formaldehyde emissions above government guidelines were found.

Rather than announce this good news and put consumers’ minds at ease, last week the CPSC instead chose to cast the announcement in terms of a “recall.”  The “recall” that the agency announced is a first ever “recall to test”, with the company agreeing to continue what it has been doing from the beginning–that is, test for formaldehyde emissions the flooring of consumers who request that.  No promises of a refund, a repair or return of the flooring are made (although the release does hint that a consumer maybe, possibly could get some replacement flooring under undescribed circumstances at the company’s discretion). Buried in the press release is the admonition that consumers are not to pull up flooring they may be concerned about because that action could be dangerous.

I saw many press stories reporting that the investigation did not find a problem with the company’s product.  I did not see stories that discussed the fact that the company was doing a “recall” (although perhaps I may have missed some). This is a good thing since, by trying to unnaturally shoehorn the announcement of the investigation results into the concept of a recall, the release is both confusing and misleading to consumers.   And it belies the agency’s oft-stated notion that the press will ignore releases that do not include “recall” in the headline. It is an example of what happens when, like a myrmidon, the agency insists on rigid adherence to rules without concern as to appropriateness under the circumstances.  As Commissioner Buerkle notes, the CPSC should never say never.


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