The Consumer Product Safety Commission (“CPSC”) has jurisdiction over the safety of more than 15,000 types of consumer products, wielding significant influence over thousands of businesses. The CPSC enforces various federal safety laws, including the Consumer Product Safety Act (as amended in 2008 by the Consumer Product Safety Improvements Act), the Federal Hazardous Substances Act, the Flammable Fabrics Act, and the Poison Prevention Packaging Act, to name a few. We have significant experience in all of these areas.
Arent Fox has represented clients before the Commission since it was established more than 30 years ago, and we provide counsel on all aspects of consumer product safety regulation and product recalls. We represent importers, manufacturers, distributors, and specialty retailers of toys and other children’s products, furniture (including children’s furniture, and household and office furniture), small appliances, clothing (including children’s sleepwear), candles, commercial appliances, kitchen and dining products, electronics (including computer products and video game consoles), lighting, cosmetic and drug product packaging, jewelry, and exercise equipment. At some point, even the most diligent consumer products company with a stringent commitment to distributing high quality, safe products may face the need for corrective action or, at a minimum, investigate whether corrective action may be necessary and appropriate. Indeed, when corrective action such as a product recall becomes necessary, Arent Fox assists clients in effectively and efficiently meeting all legal requirements while limiting the recall’s economic and reputational impact.
In recent years, the CPSC has dramatically stepped up enforcement efforts and, in particular, has extracted multi-million dollar civil penalty settlements from an increasing number of companies for either selling recalled goods or failing to report hazards in a timely fashion pursuant to Section 15(b) of the CPSA. The decision as to whether a problem with a distributed product requires a Section 15(b) Report can be a difficult one, since the filing of such reports often leads the CPSC to request a product recall, while failing to timely file a Section 15(b) Report can trigger a civil penalty investigation. We regularly assist clients in sorting out their reporting obligations, as well as advising companies that have filed such reports as to whether to agree to conduct a product recall, negotiating the terms of such a recall if one is necessary, and disputing the need for a recall when a reasonable basis exists to do so. Arent Fox attorneys also have had success negotiating reasonable civil penalties when such penalties cannot be avoided. We also have significant experience representing manufacturers and retailers who face civil penalties for inadvertently distributing previously recalled products. Ideally, of course, responsible companies seek to minimize the need to recall products and/or report hazards to the Commission. Arent Fox regularly advises clients proactively on the content and scope of federal, state, and international product safety and chemical content requirements so that products can be sold throughout the United States and worldwide, including premarket review of product concepts to help identify applicable regulatory requirements as well as explain the significance of any “voluntary” industry standards.
We are also highly experienced in the Poison Prevention Packaging Act, which mandates certain packaging requirements for drug products and dietary supplements so they can protect children from serious personal injury or illness resulting from handling or swallowing household substances. We also offer advice on regulations and other CPSC policies to assist companies in designing or redesigning safety packaging or labeling.
In addition to assisting our clients in complying proactively with consumer product safety laws and zealously representing them when necessary in enforcement actions and recalls, we have extensive experience counseling companies in all related areas, including compliance certificates required under the CPSIA for a broad array of products, restrictions on lead and certain phthalates in children’s products, third-party testing requirements for certain children’s products, and the labeling requirements for toy and game advertisements, managing reports concerning their products in the CPSC’s public database, and drafting company and vendor compliance policies to assure corporate oversight and compliance with the CPSIA. Arent Fox actively monitors and prepares comments on its clients’ behalf to CPSC rulemakings, requests for comments, and policy interpretations and participates in public meetings.