Welcome to Dorsey's Consumer Products Law blog. This blog provides visitors with informative, up-to-date and easy-to-understand commentary on consumer products matters. Our purpose is to help manufacturers, importers, warehousers, retailers, e-tailers, consumers, and lenders better understand the legal issues impacting the consumer products industry.
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August 26, 2010 | Posted by
Mark R. Kaster
The Flammable Fabrics Act (FFA), 15 U.S.C. 1191 et seq., was passed in 1953 in response to public concern over serious burn incidents involving brushed rayon high pile sweaters (referred to as "torch sweaters") and children's cowboy chaps which ignited easily and flash burned. The law prohibits the introduction into commerce of articles of wearing apparel and fabrics which are highly flammable. Wearing apparel means any costume or article of clothing intended to be worn by an individual, but it excludes hats, gloves and footwear.
The CPSC has adopted standards for the flammability of textiles, which are codified at 16 Code of Federal Regulations (CFR) Part 1610. The regulations apply to all adult and children's wearing apparel with the exception of children's sleepwear, which must meet more stringent standards. There are also separate standards for mattresses and other home furnishings (e.g., carpeting).
The purpose of this FFA is to reduce the danger of injury and loss of life by providing a national standard for testing and rating the flammability of textiles and clothing for textile use and to discourage the use of highly flammable clothing textiles. The testing specified in Part 1610 separates fabrics into three classes of flammability. Class 3 fabrics are considered dangerously flammable and may not be used in clothing textiles or items of wearing apparel. Class 2 fabrics are considered intermediate flammability. Class 1 fabrics are considered normal flammability.
The CPSC flammability standard is intended to remove from the market the small articles of wearing apparel and fabrics which are "so highly flammable as to be dangerous when worn by individuals."
The manufacture for sale, the sale, or the offering for sale in commerce of any product, fabric, or related material which fails to comply with an applicable standard or regulation issued or amended under Section 4 of the FFA, 15 U.S.C. 1193, is a prohibited transaction under section 3(a) of the FFA, 15 U.S.C. 1192.
If the CPSC determines that a product, fabric or related material does not comply with a flammability standard, it is authorized to pursue a variety of legal sanctions. Included among these is the authority to seek civil penalties of up to $6,000 per violation involved, and a maximum penalty of $1.5 million for any related series of violations against any person who knowingly violates a standard. Section 5(e)(1) of the FFA, 15 U.S.C. 1194(e)(1).
To determine if apparel meets the requirements of 16 CFR Part 1610, a retailer can request the results of tests conducted or a written guaranty from the garment supplier indicating that reasonable and representative tests have been made in accordance with procedures prescribed, and applicable standards or regulations issued, amended, or continued in effect, under the FFA as set forth in 16 CFR Part 1608.
For a guaranty to serve as a defense to liability and potential criminal prosecution under section 7 of the FFA, 15 U.S.C. 1196, the person issuing the guaranty must reside in the United States and must maintain records in this country of the test results which form the basis of the guaranty.
Under the requirements of the Consumer Product Safety Improvement Act of 2008 ("CPSIA"), manufactures and importers will be required to provide certificates of conformity documented that the products they sell comply with all applicable CPSC consumer product standards, including the FFA. Also, for children's products, the FFA standards will need to be certified under testing performed by a third-party laboratory that is accredited by the CPSC.
As a reminder, manufacturers, distributors and retailers of consumer products distributed in commerce are required to report certain safety information to the CPSC under Section 15(b) of the Consumer Product Safety Act, 15 U.S.C. 2064 if they obtain information which reasonably supports the conclusion that their product contains a defect which could create a substantial product hazard or creates an unreasonable risk of serious injury or death.
Please contact us for more information regarding the FFA and its implementing regulations and product guarantees.
August 11, 2010 | Posted by
Valerie Paula
On August 2nd, the Plaintiffs in a proposed class action filed an amended complaint alleging Toyota vehicle defects caused sudden and unintended acceleration problems. (In re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practice, and Products Liability Litigation, C.D. Cal., No. 8:10ML151) The complaint alleges that Toyota’s internal company documents show Toyota knew of the sudden acceleration problems as far back as 2003. Toyota disputes these claims and has stated that company engineers in over 10 years of testing have never found an incident where such a defect has caused unintended acceleration. Toyota maintains that the unintended acceleration was caused by defective floor mats and accelerator pedals – both of which have been addressed by safety recalls.
The amended complaint alleges Toyota knew about the sudden acceleration problems and failed to install a brake override system that it knew could have prevented accidents. The first amended complaint was filed in the U.S. District in Southern California on behalf of nearly 40 consumers and businesses. This past April, the Judicial Panel on Multidistrict Litigation transferred the federal suits for consolidated pretrial proceedings. This amended complaint proposes a nationwide consumer class action seeking economic damages, including diminished car values, on behalf of owners of various models of Toyota and Lexus vehicles. According to BNA, a second complaint was filed on behalf of rental car companies, auto dealers, and other non-consumer entities alleging financial harm due to the defects. A third complaint was filed seeking damages for foreign owners of Toyota vehicles. Additionally, Toyota shareholders have also filed a separate case which is before the Southern California District court.
The Plaintiffs allege that Toyota vehicles were flawed due to the incorporation of an electronic throttle control system. The amended complaint says the number of unintended acceleration complaints increased nearly five-fold for the Lexus ES luxury sedan in the first year that Toyota introduced the throttle control system. The number of complaints also jumped once the Toyota Tacoma pickup included the system. Toyota has responded that the Plaintiffs have yet to point out any specific defect in the electronic throttle control system.
Toyota has actively disputed all the defect claims to date, other than the floor mat and sticking accelerator pedal. Toyota has conducted an internal investigation and taken steps to improve safety and quality, including:
- allowing for additional testing and customer feedback during the development phase of new vehicles;
- dedicating 1,000 additional engineers to quality activities;
- “actively seeking input from respected independent experts in Japan, the United States and elsewhere” to improve quality assurance procedures;
- conducting faster and more aggressive recalls in North America and localizing manufacturing and engineering leadership; and
- expanding the Product Quality Field Office program throughout the United States and Canada.
Valerie Paula is an Associate in the Regulatory Affairs Department at Dorsey & Whitney, LLC. Please see our web site at www.dorsey.com.
July 30, 2010 | Posted by
Kurt Whitman
A group representing various sectors of the wireless industry has filed a lawsuit in the Northern District of California challenging San Francisco’s new ordinance requiring retailers to disclose radiation levels of the mobile devices they sell. San Francisco Mayor Gavin Newsom signed the “Cell Phone Right-to-Know Ordinance” (“the Ordinance”) into law on July 1, 2010. It will take effect beginning in February 2011. The plaintiff, CTIA—The Wireless Association® (“CTIA”), is a Washington D.C. nonprofit membership organization that advocates for many of the wireless industry’s largest manufacturers and retailers . CTIA initially protested the new ordinance by pledging to move its wireless trade show from San Francisco–the show’s location for five of the past seven years. The lawsuit reflects an even stronger move on the part of the wireless industry to combat local cell phone regulation.
The CTIA Complaint
In its complaint, CTIA asserts in three counts that San Francisco has violated the Supremacy Clause of the U.S. Constitution by attempting to preempt federal law:
• First, CTIA claims that federal law impliedly preempts the Ordinance because the regulatory field of wireless communications belongs exclusively to the federal government.
• Second, CTIA asserts that the Ordinance conflicts with federal law by challenging the FCC’s past determination that FCC-compliant wireless handsets are safe and do not require emission warnings. This claim also states that the Ordinance disrupts Congress’s goal of uniform regulations for wireless communications and upsets the carefully balanced mandated goals of the current standard: (1) to encourage rapid deployment and increased usage of wireless communications within an efficient U.S. telecommunications infrastructure and (2) to protect public health and safety. CTIA argues that the FCC has adopted a safe standard for radio frequency emissions when it set the Specific Absorption Rate limit, and disclosure of already-safe levels would only confuse and mislead consumers.
• Third, CTIA asserts that the Ordinance is in clear violation of the Communications Act because the Act explicitly prohibits States from regulating the “entry of . . . any commercial mobile service.” 47 U.S.C. § 332©(3)(A). This prohibition includes state-imposed warning and label requirements.
CTIA seeks a declaration that the Ordinance violates the Supremacy Clause and is preempted by federal law; an injunction prohibiting San Francisco from implementing, enforcing, or threatening to enforce the Ordinance; and costs, attorneys’ fees, and other expenses.
Recent Cell Phone Safety Trends
San Francisco’s Ordinance arrives in the midst of a recent trend to acknowledge a possible link between cell phone use and health risks. In May, the World Health Organization released its Interphone Study , which analyzed cell phone use and its link to brain cancer. Eleven European nations, Japan, and New Zealand participated in the study. Although the decade-long research did not show a conclusive link between cell phone use and cancer, “suggestions” did exist that heavy cell phone use could increase the risk of brain tumors. Researchers concluded that further research is merited.
In response to the Interphone Study, CTIA issued a statement advocating continued research but verifying the FCC’s currently safe standards. CTIA’s Vice President of Public Affairs John Walls stated, “Interphone’s conclusion of no overall increased risk of brain cancer is consistent with conclusions reached in an already large body of scientific research on this subject.”
Some nations have not waited for definitive results—France has passed legislation that requires cell phones to be sold with an earpiece or headset and forbids advertising to young children or providing cell phones to children under six. In the U.S., both Maine and California have considered legislation requiring warning labels on cell phones.
In June, Ohio Congressman Dennis Kucinich pledged to propose a federal law that would require cell phone warning labels. Kucinich acknowledged the lack of a definitive connection between cell phone use and cancer but claimed that studies funded by the telecommunications industry—like the Interphone Study—were “significantly less likely to find a link between cell phones and health effects.” Kucinich called for a “first-class research program” in the U.S. to find answers and in the meantime a federal labeling law to err on the side of protection.
CTIA’s current lawsuit has the potential to help guide government agencies and legislative bodies in their continued concern about cell phone radiation. With more than 285 million mobile phones in the U.S. and 4.5 billion mobile phones globally , the lawsuit will certainly be an interesting development in the months to come.
July 19, 2010 | Posted by
Elizabeth Gray
On Tuesday, July 13, the U.S. Consumer Product Safety Commission (CPSC) issued a voluntary recall in cooperation with Tween Brands, Inc. of about 137,000 pieces of children’s jewelry containing high levels of cadmium, a toxic heavy metal. Tween Brands owns Justice, the clothing store for preteen girls formerly known as Limited Too. The recall is the sixth in a series of recent product callbacks due to hazardous levels of cadmium. Cadmium, a naturally occurring metal, ranks 7th on the Center for Disease Control’s priority list of the 275 most hazardous substances in the environment. It is carcinogenic, and can cause bone softening, brain damage, and kidney failure. Children can be exposed if they bite, suck on, or swallow cadmium.
The Tween Brands recall was prompted by test reports submitted by the company. A Tween Brands spokeswoman, Carrie Bloom, said the recall was decided "out of an abundance of caution." The recall involves 19 different styles of metal necklaces, bracelets and earrings. Customers can return the jewelry to Justice stores for a full refund. View the CPSC’s press release announcing the recall.
Similarly, on June 30, the CPSC issued a recall of 66,220 children’s bracelets and 2,220 rings distributed by SmileMakers, Inc, citing high levels of cadmium in the products. The jewelry was distributed for free at doctor and dentist’s offices, and the recall instructs parents to simply discard the products. The CPSC also issued a recall on June 8 in cooperation with McDonald’s. The agency recalled over 12 million “Shrek” movie-themed drinking glasses that were sold at restaurants nationwide. The paint on the glasses contained elevated levels of cadmium, and the CPSC was concerned that children would touch the paint and put their hands in their mouths. McDonald’s offered a $3 refund for the glasses, which is $1 more than their purchase price.
Product manufacturers, most in Asia, have begun using cadmium in products more frequently due to the Consumer Product Safety Improvement Act of 2008 (CPSIA), which set a new, stringent standard for lead in children’s products (read more in Scott Peterkin’s May 24 post and Nena Street’s February 22 post). Cadmium prices have recently plummeted, so the metal provides a convenient and inexpensive substitute for lead. Though the CPSIA contains some regulation of cadmium, the standards limiting its use are significantly less strict than those regulating lead, and only apply to painted toys, not jewelry.
Fashion industry representatives are calling for a review of national cadmium standards in consumer products. Responding to this concern, the CPSC has started a scientific literature review of cadmium and other heavy metals, and is developing a highly protective standard for cadmium in children’s products. Currently, the agency applies a legal guideline that allows action against “hazardous levels” of cadmium without setting specific allowable levels. Earlier this year, CPSC Chairwoman Inez Tenenbaum publicly warned manufacturers in Hong Kong not to replace lead with cadmium or other toxic metals. The agency reiterated its warning to Asian manufacturers during the announcement of Tuesday’s Tween Brands recall. Some American companies have started voluntarily testing for cadmium in their children’s jewelry as a preventative measure. To read more about recent cadmium-related recalls, see http://www.themonitor.com/articles/jewelry-40761-cadmium-children.html.
Identical bills are pending in the U.S. Senate and House of Representatives that prohibit the sale or distribution of children’s jewelry containing cadmium, barium, and antimony. (S. 2975, the Safe Kids’ Jewelry Act, and H.R. 4428, the Children’s Toxic Metals Act). As well, several states have passed legislation limiting or banning cadmium in children’s products. (See Scott Peterkin’s May 24 post and Nena Street’s February 22 post.) Recent actions include:
• Connecticut: H.B. 5314 (signed into law June 4, 2010) prohibits the manufacture, sale, and distribution of children’s jewelry that contains more than 75 parts per million of cadmium, beginning July 1, 2014.
• New Jersey: S-1636 (introduced in the Senate March 4, 2010) prohibits the manufacture, sale, distribution, and importation of products intended for children under 6 that contain any lead, mercury, or cadmium.
• New York: S-9561 (introduced in the Senate January 19, 2010) prohibits the sale of children’s jewelry that contains over 0.5 parts per million leachable cadmium. As well, A-9771 (introduced in the Senate January 26, 2010) bans the use of any cadmium in products made for children under 12.
Elizabeth Gray is a Summer Associate at Dorsey & Whitney LLP. Please see our web site at www.dorsey.com.
July 16, 2010 | Posted by
Valerie Paula
On June 9th, Canada introduced the Canada Consumer Product Safety Act (bill C-36) in the House of Commons. The bill would modernize Canada’s 40 year-old existing consumer product laws and would give the government more oversight and enforcement power.
Bill C-36 amends the schedule of prohibited products to include Bisphenol A in polycarbonate baby bottles. The new law would also prohibit products deemed to be unsafe, prohibit labels with false or deceptive health and safety claims, and give authority to Health Canada to recall dangerous products. The key provisions proposed include:
• A General Prohibition against the manufacture, importation, advertisement or sale of consumer products that pose an unreasonable danger to human health or safety.
• Orders for Corrective Measures, including Recall. This allows for quicker government response to address an emerging health of safety problem.
• Mandatory Reporting of Incidents. Industry must report when they have knowledge of a serious incident, or death, to provide an early warning to the government.
• Ministerial Orders for Test/Study Results. Manufacturers or importers must provide information on products when so ordered to verify compliance or prevent noncompliance.
• Document Retention by Industry. This facilitates product tracing throughout the supply chain, in particular in situations where a consumer product would need to be recalled.
• Increased Fines and Penalties for Violations.
• Administrative Monetary Penalties. Penalties will be allowed to deal with noncompliance, including criminal prosecutions.
• Scope. The new law expands the scope of consumer product laws to cover the manufacture of consumer products.
• Packaging and Labeling. New prohibitions are placed on packaging, labeling or advertising that is false, misleading or deceptive, as it relates to health or safety.
Bill C-36 contains significant differences from a previous product safety bill (C-6) that was introduced in January 2009. Bill C-6 passed the House of Commons, but died in the Parliament. New changes contained in bill C-36 include, but are not limited to, authorizing the Minister to order product recalls, adding specific time frames for a review officer to complete recall orders, and eliminating an exemption from liability for inspectors entering onto or crossing over private property during an inspection.
As noted above, the new law would require industry to provide information to the Minister of Health. Such reporting will be required for any of the following consumer product safety incidents, including near misses:
• An occurrence that resulted or could reasonably be expected to have resulted in death or serious adverse health effects;
• A defect or characteristic that may reasonably be expected to result in death or serious adverse health effects;
• Inadequate labeling or instructions that could lead to such results; and/or
• A recall order or other corrective measure initiated for human health or safety reasons.
Valerie Paula is an Associate in the Regulatory Affairs Department at Dorsey & Whitney, LLP. Please see our web site at www.dorsey.com.
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