Arent Fox assists clients in all aspects of product recalls, including the scope of products to be recalled, the potential remedies offered to consumers, determining the need to file reports with the CPSC or other government agencies and the procedures for implementing and tracking a recall and the media impact of a product recall. We also counsel management on the strategic options for their brands when a potential recall arises.
Negotiating with the CPSC and developing a recall program for a programmable massager
Counseling on a recall of lead jewelry products popular among young consumers.
Counseling Regulatory Risk & Product Assessment
In evaluating the likelihood of injury from a product, the CPSC relies on information in its national databases, such as the National Injury Information Clearinghouse. Arent Fox uses the Freedom of Information Act to gain access to information in CPSC databases when products may incur heightened regulatory or enforcement risks. Examples include: Consulting on an appropriate product testing strategy for specialty fragrance candles and the regulatory risks associated with their promotion. Advising on appropriate use of lead content in various consumer products and assisting clients in developing guidelines on using lead in future product development.
Enforcement Actions & Civil Penalties
Arent Fox’s more than 30 years of experience before the CPSC and our familiarity with commission personnel provide clients with insights on how to manage inspections, investigations, and agency proceedings and prosecutions. Arent Fox has successfully handled many CPSC civil penalty negotiations, many of which resulted in CPSC’s decision not to proceed with a penalty action. In cases where a civil penalty could not be avoided, Arent Fox skillfully negotiated a much lower civil penalty than what was originally proposed by CPSC and helped identify mitigating circumstances that facilitated the Commission’s concurrence that a lower civil penalty was, in fact, warranted. Arent Fox has substantial experience in helping companies identify relevant mitigating circumstances that could mean the difference of millions of dollars in the ultimate penalty that is levied. Our experience ranges from penalty matters involving failure to report allegations to allegations involving the sale of recalled goods, both of which carry significant penalties under the Consumer Product Safety Act.
Product Liability Actions
Arent Fox devises regulatory compliance strategies to reduce product liability risk and to best position companies to avoid or defend against potential tort litigation. We have significant experience evaluating the likelihood of liability litigation arising from a consumer product recall or other voluntary action taken to address a consumer product safety issue. We are also experienced in handling products liability actions.
Product Development & Design Consultation
Arent Fox counsels clients on ways to reduce regulatory risk associated with new product concepts and designs. Examples include: Consulting on suitable designs for household catalytic fragrance diffusers. Advising on redesign and reformulation of toy products featuring small parts, lead content, or sharp edges.
The CPSC enforces a strict notification requirement when a manufacturer suspects a consumer product defect creates a substantial risk of injury to the public. Failure to notify the CPSC in a timely manner can result in significant civil and criminal penalties. Arent Fox helps clients evaluate the risks of reporting potential defects.
Safety Compliance Counseling
Arent Fox counsels companies on the best regulatory compliance policies and helps clients develop guidance manuals for management and employees and primers on regulatory concerns. In this area we work closely with the firm’s Litigation and Food and Drug practices.