In a step it rarely takes, the CPSC recently initiated separate administrative enforcement proceedings against two manufacturers of desktop magnets alleging that its products contain defects that can pose serious risk of injury. The CPSC sued the makers of Buckyballs and Zen Magnets seeking an order from an Administrative Law Judge directing them to cease all manufacture and distribution of their products (and other relief) after discussions with the companies failed to result in a voluntary recall plan.

The core issue is that these magnets can be dangerous if swallowed because the magnets can bind together and become lodged in the body, posing a risk of harm and perhaps a need for surgical intervention.  The companies currently have warnings stating, among other things, that the products are not for use by children and that they should not be swallowed, but the CPSC alleges that the warnings and labeling do not effectively communicate the hazard associated with ingestion of the product.  The CPSC continues to receive reports of injuries involving use of the product by children.  

Given that most CPSC actions (e.g., recalls, civil penalties) are the result of agreements reached with manufacturers, these matters provide the public a rare opportunity to get a glimpse of a contested lawsuit regarding the justification for a recall.  This case sets up as a classic battle that features competing themes of child protection vs. personal responsibility.  On the one hand, the manufacturers say that the CPSC’s actions raise questions about when the government has the authority to stop companies from selling products that are reasonably safe if used properly.  On the other hand, the CPSC alleges that injuries continue to occur, which suggests that the warnings in place are inadequate – and that perhaps no warning is adequate.  For more information, click on the links below.





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On March 11, 2011, after much anticipation, and while vigorous debate about it continues, the CPSC went live as scheduled with its Publicly Available Consumer Product Safety Information Database  (the "database"), known on the web as www.SaferProducts.gov.   The Database is not a new idea.  Congress required that it be established when it passed the Consumer Product Safety Improvement Act of 2008, and set the timetable for its implementation and rollout.  Nevertheless, it has garnered a great deal of attention of late.  The passing of the Pompeo Amendment in the House, which would withhold additional funding for the Database, created a media stir.  Consumer and industry groups have been making their cases to Congress regarding the perceived risks and benefits of the Database.  Many of these same arguments had already been made to the Agency during its rulemaking process.  

Manufacturers have legitimate reasons to be concerned about the Database.  Many of them already have reliable systems in place to investigate reports of incidents involving their products.  It is potentially problematic that the definition of who can file a report is not limited to persons who actually have first-hand knowledge of the reported incident.  There is a concern that the Database will lead to a flood of inaccurate and unfounded incident reports that will leave manufacturers with some tough choices.  Do they devote their resources to investigating each of these incident reports in the ten (10) business days they are allowed submit comments to be included when the incident report is published on the Database?  Or do they choose not to devote resources to these incident reports, handle investigations through existing channels, and risk potential negative publicity (and brand damage) from an inaccurate incident report that may have been prevented had they interfaced with the CPSC prior to publication?   Will persons driven by their own motives push incident reports into the system to manufacture the appearance of an issue?  Will trial attorneys be monitoring the site to look for the next class action?  These are good questions, and it will be very interesting to see how things play out in the coming weeks and months.

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Today the CPSC voted, 3 to 2, to approve a final rule establishing the CPSC's Publicly Available Product Safety Information Database ("Database").  The Database was mandated by the Consumer Product Safety Improvement Act of 2008, and it will place significant burdens on product manufacturers.  Once the CPSC notifies a manufacturer of an incident, it has ten business days to investigate and decide whether and how to respond.  In a joint statement issued today, Chairman Tenenbaum and Commissioners Adler and Moore called this "a major step toward empowering consumers," further stating:

Today's vote represents a major victory for consumers and supporters of open government because it will provide the public access to critical product safety information that, due to statutory restrictions on the open flow of information, the CPSC was previously required to keep behind closed doors until it had been cleared with manufacturers. Through SaferProducts.gov, when the Database debuts on March 11, 2011, the CPSC will share more information about dangerous products than we have been allowed to in years past―a change that we believe will lead to safer products and, therefore, safer consumers.

The Database should be welcomed not just by those with a mission to protect consumers but also by companies that produce consumer products. We believe that responsible companies that produce or sell consumer products will have the opportunity to use this new resource to inform their quality control programs and ensure that safer products are available on store shelves.

This vote approves a plan that was opposed by many industry groups.  "The plan was opposed by business groups such as the U.S. Chamber of Commerce and the National Association of Manufacturers. The agency rejected an alternate proposal from its two Republican commissioners to narrow the scope of information gathered at the site, established in response to a 2008 law beefing up the agency's product-safety oversight." 

One of the main areas of disagreement between the competing proposals was the scope of the definition of "consumers" who may submit an incident report.  The Draft Final Rule Section 1102.10(a)(1) defines “consumers” as including, but not limited to, users of consumer products, family members, relatives, parents, guardians, friends, attorneys, investigators, professional engineers, agents of a user of a consumer product, and observers of the consumer products being used. Many commenters opined that the definition of “consumer” should not be so broad as to include those persons who were not injured by the product or who are not reliable reporters of the incident, such as those persons lacking firsthand knowledge of the product, its manufacturer, or the injury.   In its Response to the comments the CPSC Staff stated that "The plain statutory language does not require a submitter of a report of harm to have “firsthand knowledge.” We have chosen an interpretation of “consumer” that comports with our experience in maintaining a database of consumer product incident reports."

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Internet Reserach by Jurors

Posted on November 12, 2009 02:53 by John Kuppens

Here is a link to a very interesting case out of South Dakota in which a defense verdict in a wrongful death case was vacated because of juror misconduct involving internet reserach. I invite you to share your comments about the best way to prevent these types of problems.

http://www.sdjudicial.com/opinions/downloads/y2009/24726.pdf

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