Children's Product Recalls: Identifying Reportable Defects
The U.S. Consumer Product Safety Commission ("CPSC" or the "Commission") is the regulatory agency responsible for protecting the public from unreasonable risks of injury and death associated with consumer products. Pursuant to the Consumer Products Safety Improvement Act ("CPSIA") and Child Safety Protection Act ("CSPA"), manufacturers, importers, distributers, and retailers of all consumer products, including children's products1, have an ongoing obligation to report certain safety-related information to the Commission. This article provides an overview of the reporting requirements for potential product defects2.
When is a Potential Defect Reportable?
Companies are required to report consumer products they manufacture, distribute, import, or sell that are potentially defective or hazardous, or that do not comply with federal safety requirements. See15 U.S.C. § 2064(b). Specifically, if a business obtains information which reasonably supports the conclusion that its product is defective, it must report the information to the CPSC within 24 hours.
A defect is a "fault, flaw, or irregularity that causes weakness, failure, or inadequacy in the form or function" of a product. See16 C.F.R. § 1115.4. It can arise in a variety of circumstances: 1) as a result of a manufacturing or production error; 2) because of a flawed design of, or faulty materials used in, a product; or 3) because it contains inadequate labeling, packaging, warnings, and/or instructions. The following are some examples of how products may be potentially defective under these scenarios:
- A full-size baby crib is manufactured with wood screws on certain structural elements, but contains no lock washers even though they are called for in the design. Therefore, the crib fails to conform to its design, and as a result, its structural components may be weaker than they should be. This particular crib may be defective as a result of a manufacturing or production defect.
- A kite made of electrically conductive material presents a risk of electrocution if it is long enough to become entangled in power lines and is within reach from the ground. The electrically conductive material contributes both to the beauty of the kite and the hazard it presents. The kite contains a design defect.
- A toy containing a small part3 does not warn of a potential choking hazard, even though it is marketed for use by children six years of age or younger. A young child may reasonably put the toy in his or her mouth, which could result in a choking incident. Even if there are no reports of injury, the product contains a defect because of the inadequate warnings and instructions.
See 16 C.F.R. § 1115.4 for more examples of potential defects in consumer products.
In determining whether a company has obtained information that reasonably supports the conclusion that its product contains a defect, the CPSC suggests that companies consider the following:
- What is the utility of the product? What is it supposed to do?
- What is the nature of the risk of injury that the product presents?
- Is the risk obvious to the consumer?
- What is the need for the product?
- To what is the population exposed in the product and what is its risk of injury?
- Are there adequate warnings and instructions that mitigate the risk?
- What is the Commission's experience with the product?
- Is the risk of injury the result of consumer misuse and is that misuse foreseeable?
- What other information sheds light on the product and patterns of consumer use?
CPSC Recall Handbook, p. 12-134; see also 16 C.F.R. § 1115.4.
If upon weighing these considerations a company determines that a potential defect in a children's product exists, it should immediately report to the CPSC. The easiest way to file a report is through the CPSC website at SaferProducts.gov. A company in doubt as to whether a defect exists should only fail to report to the CPSC if it is certain that there is no substantial product hazard.
Reporting a potential product defect does not necessarily mean that the CSPC will require a recall or other corrective measures. Rather, the CPSC will evaluate the report and work with the reporting company to determine if a corrective action plan is necessary. The CPSC's stated goal in evaluating the report is to determine whether the defect creates a substantial product hazard.
Companies involved in the manufacture, importation, distribution, or sale of children's products should develop a system for maintaining and reviewing information about their products to determine if any of its products has a defect in its manufacture, design, warnings or labeling, or poses an unreasonable risk of serious injury or death to children. This information may include consumer complaints, warranty returns, insurance claims or payments, product liability lawsuits, reports of production problems, product testing, industry literature, statutes and regulations, ASTM, ISO and other standards, and other critical analyses of products.
For additional questions, please contact Julie Scheipeter, or the Stinson Leonard Street attorney with whom you regularly work.
1"Children's products" are those designed or intended for use by children twelve (12) years of age and younger. 15 U.S.C. § 2052.
2 The Commission also requires reporting of child choking incidents, as well as the reporting of certain types of settlements or judgments. For more information on reporting to the CPSC under these sections, see 16 C.F.R. § 1117 and 15 U.S.C. § 2084.
3 A "small part" is any object that fits completely into a specially designed test cylinder approved by the CPSC that is 2.25 inches long by 1.25 inches wide. 16 CFR § 1501.4
4 The Recall Handbook can be found on the CPSC's website.