Friday Links

  • “It is not always sunny in Philadelphia for product liability lawyers – especially defense lawyers like us,” – Jim Beck, writing in this post, entitled “It’s Sunny in Philadelphia,” at the Drug and Device Law blog. How can you not read a post with that introduction? (Unfortunately, however, there is no mention of Green Man in this particular post.).

  • Brian Comer at the South Carolina Products Liability Law Blog has a nice post analyzing South Carolina warning law and how it might be applied in the context of cell phone use while driving cases. We previously posted on that topic here. In his post, Comer concludes:
    [T]his is the area of law that is applicable to cell phones and whether there is a duty to warn about cell phone use while driving. It is pretty obvious (and a matter of common sense in my opinion) that there is a risk associated with looking at a cell phone, fumbling with it, holding it, trying to press those small numbers on it, or otherwise trying to use it while doing a dangerous activity, such as driving. Why? Because the user is devoting attention to the cell phone instead of the potentially dangerous activity in which they are engaged: driving a 4,000 pound vehicle at a rate of speed and on a road with other vehicles, cyclists, etc.

    So, is there a duty to warn a cell phone user not to use their cell phone while driving, or to use caution? Though I am sure that someone may try and make this argument (if they have not already), this seems to be a classic case of “obvious risk.”

    He may be right. As commonplace as cell phones are today, it is difficult to imagine a jury of 12 individuals (all of whom likely have cell phones themselves) abandoning the common sense idea that a driver is responsible for his own actions while on the roadway. Cell phone providers would have a strong argument that the driver’s actions at least were a superseding cause of the injury-producing activity. However, the common sense approach to refuting liability may not be as convincing against a manufacturer of new age, interactive, electronic devices designed specifically for installation directly in the driver’s dashboard.

  • “We hold that the limitation on noneconomic damages in medical malpractice actions set forth in section 2-1706.5 of the Code violates the separation of powers clause of the Illinois Constitution and is invalid. Because the Act contains an inseverability provision, we hold the Act invalid and void in its entirety. ” Lebron v. Gottlieb Memorial Hosp., — N.E.2d —-, Nos. 105741, 105745., 2010 WL 375190 (Ill. Feb. 4, 2010) (citations omitted) [PDF]. The Illinois Supreme Court found that the $1 million limits for hospitals and their personnel and $500,000 limits for doctors operated as an “unconstitutional legislative remittitur.” (Link courtesy of the Mass Tort Litigation Blog by way of the In the Jury blog).
  • The WSJ Law Blog reports on Merck’s recent settlement of shareholder lawsuits arising from its withdrawal of Vioxx from the market.

Hoteliers ≠ "Suppliers"

Always be prepared for business travel, and expect the unexpected. Like many, I am a traveler that generally forgets to pack a needed item when I take a business trip. It’s usually something harmless like a toothbrush or toothpaste. When this happens, though, I’m always grateful for the complimentary toiletries the hotel keeps in its closet behind the front desk. During such wayward journeys, I often think of the hotel as a supplier of necessities. After reading the recent case of Hammond v. John Q. Hammons Hotels Mgmt., No. CIV-09-652-M, 2010 WL 302233 (W.D. Okla. Jan. 20, 2010), I will never think of a hotel as a “supplier” again.

In that case, the Plaintiff, an Oklahoma City dental hygienist, was traveling with her husband to Hot Springs, Arkansas. Id. at *1. As Mrs. Hammond was preparing to iron a wrinkled garment, she reached for the clothes iron. The court recounted what followed:

As Plaintiff slid the clothes iron’s plug into the socket in her hotel room, the plug exploded in her right hand and a ball of fire shot out from the wall. As a result of the explosion, plaintiff’s hand was charred and her hand and arm were electrocuted, causing neurological damage.

Id.

The plaintiff then brought a products liability action against the hotel company under a strict liability theory. Id. The parties agreed that Arkansas law should apply to determine whether the hotel could be held strictly liable. Id. On that point, the Arkansas code states that:

[a] supplier of a product is subject to liability in damages for harm to a person or to property if: (1) The supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product; (2) The product was supplied by him or her in a defective condition that rendered it unreasonably dangerous; and (3) The defective condition was a proximate cause of the harm to a person or to property.

Ark.Code. Ann. § 4-86-102(a) (2009).

The hotel company contended that the plaintiff’s complaint failed to satisfy the second statutory element. That is, the hotel argued that it was not engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the clothes iron that was at issue in the case. The Arkansas Code defines the term “supplier” as follows:

(6)(A) “Supplier” means any individual or entity engaged in the business of selling a product, whether the sale is for resale or for use or
consumption.

(B) “Supplier” includes a retailer, wholesaler, or distributor and also includes a lessor or bailor engaged in the business of
leasing or bailment of a product.

(C) “Supplier” shall not include any licensee, as the term is defined in § 17-42-103(10), who is providing only brokerage and sales services under a license;….

Ark.Code Ann. § 16-116-102(6) (2009).

In analyzing whether the hotel was a supplier under the statute, the court looked to the plain and ordinary meaning of the statutory term. Id. at *2. The court ultimately found that the hotel was not a supplier; its conclusion turned upon its finding that the hotel was not a wholesaler or supplier that sold chiefly to retailers and commercial users. Id. The court found that the hotel “…simply provide[s] amenities, including clothes irons, to their guests incident to the primary use of the hotel room.” Id.

The Hammond court’s analysis is sound. Hotels simply do not place incidental products such as clothes irons or toothpaste into the stream of commerce. It’s logical to conclude that they are not sellers or suppliers. As such, I really need to stop thinking of hotels as a supplier of my necessities or better yet, I need to start double-checking my luggage when I travel!

When Is a Class Action Not a Class Action?

Federal jurisdiction under the Class Action Fairness Act (“CAFA“) may continue, even after the denial of the class certification motion. Therefore, it’s possible for a products liability case to be litigated in federal court, even if complete diversity does not exist. Judge Posner supported this contention through statutory and policy analysis in Cunningham Charter Corp. v. Learjet, Inc., No. 09-8042, 2010 WL 199627 (7th Cir. Jan. 22, 2010) [PDF].

Cunningham filed suit in state court in an ostensibly small class, purchasers of Learjets who had received a certain warranty. Learjet removed the action pursuant to CAFA, and the plaintiffs moved to certify two classes. The district judge denied both classes because neither could satisfy the requirements of Rule 23. This raised the question, however, of what should happen to federal jurisdiction under CAFA when the district court conclusively rules that the pending case is not a class action? While the district judge ruled that denial of certification terminates federal jurisdiction, the panel reversed and noted that the act is, after all, a fairness act.

Posner’s pithy prose promotes predictability. First, jurisdiction is conferred by 28 U.S.C. 1332(d), which speaks in terms of the filing of the class action, rather than the ultimate decision on certification.
[J]urisdiction attaches when a suit is filed as a class action, and that invariably precedes certification.

Furthermore, 28 U.S.C. 1332(d)(8) states that CAFA applies before or after certification by the court. Therefore, according to Posner, jurisdiction attaches upon filing and is not relinquished. Federal jurisdiction under CAFA is independent of certification. Moreover, as Posner notes, this interpretation keeps the fairness in the fairness act. If jurisdiction hinged on certification, then it would be possible for a district court to decline to certify and remand to state court, where the case could be certified on the state level and proceed as a class action. Such an outcome is not consistent with the purpose of CAFA.

While this may seem like a victory for defendants, my guess is that this will result in further structuring of lawsuits to avoid CAFA entirely, as noted in an earlier post. Posner himself notes in the opinion that if it immediately appears that a case cannot satisfy CAFA, i.e. a frivolous class action, then federal jurisdiction would never attach. The effect of this opinion, then, might be to actually reduce the number of class actions in federal court, rather than to increase the number of actions retaining federal jurisdiction subsequent to denial of certification.

Distracted Driving to Spark the "Next Big Thing" in Products Liability Law?

As technology and product innovation expand into new territory, breaking ground to appease a generation accustomed to instant, at-their-fingertips access to digital information, so too does products liability litigation. Some speculate the next “wave” of products liability litigation will stem from consumers’ use of communication devices and other electronic equipment while on the roadways, resulting in the “senseless and preventable destructive practice of distracted driving.” [PDF].

An article published recently by The New York Times as part of its “Driven to Distraction” series (which is worth checking out: try the “Gauging Your Distraction” game that has you attempt to respond to texts while changing lanes) explains that in spite of huge risks, technology giants and automakers are bringing Internet access – by way of what have been dubbed “infotainment systems” – to drivers’ dashboards. According to the article, one such system expected to be unveiled by Audi this fall allows drivers to access the Internet and pull up information as they drive. A notice reportedly will pop up that reads: “Please only use the online services when traffic conditions allow you to do so safely.” Although some automakers plan to restrict access to potentially distracting functions while the car is in drive, much of the responsibility in limiting use while driving will lie with drivers.

The issue of distracted driving is at the forefront, as there has been a government push to curb distracted driving dangers. Even Oprah has joined the cause. In terms of the scope of damages, The New York Times article cited a 2003 study by Harvard researchers, who estimated that motorists talking on cellphones caused 2,600 fatal accidents and 570,000 accidents involving injuries a year.

So how does this translate into product liability litigation? In its recently published “Client Alert,” the Micheal Best firm sets forth the three most likely product liability causes of action to be alleged against creators of these “distracting” products:

(1) Design Defect–when the foreseeable risks of harm posed by the product could have been reduced or avoided; (2) Inadequate Instructions or Warnings – an omission of a warning that renders the product not reasonably safe; and (3) Failure to Warn–the seller’s failure to provide a warning after the time of sale.

Numerous successful civil lawsuits have arisen against the distracted drivers themselves, including one settled here in South Carolina this month for $5 million by the insurer of a driver who, while talking on her cellphone, struck and killed two bicyclists. It is only a matter of time before a floodgate of litigation opens against the makers of these distraction-inducing products.

Renewed Concern Over The Effects of BPA

An old debate is relevant and has new life once again. The issue: does Bisphenol-A pose a health risk to humans? More importantly, does the presence of BPA in products such as baby bottles present a risk to the most susceptible segment of our population, our children? Earlier this month, the Food and Drug Administration issued an updated statement outlining the agency’s stance on the controversial chemical, Bisphenol-A, or BPA. In this statement, the FDA revisited its prior concern over the chemical and the potential adverse effects of BPA on humans. The cause for the renewed concern appears to be the result of recent studies that have employed “novel approaches” in studying the chemical. According to the FDA:
BPA is an industrial chemical used to make a hard, clear plastic known as polycarbonate, which has been used in many consumer products, including reusable water bottles and baby bottles. BPA is also found in epoxy resins, which act as a protective lining on the inside of metal-based food and beverage cans. These uses of BPA are subject to premarket approval by FDA as indirect food additives or food contact substances. The original approvals were issued under FDA’s food additive regulations and date from the 1960s.

In its statement, the FDA acknowledged that the recent studies provided “some concern about the potential effects of BPA on the brain, behavior, and prostate gland of fetuses, infants and children.” This level of concern was first voiced by The National Toxicology program in its report on BPA.

The history between the FDA and BPA is a long and storied one. The seemingly incomprehensible chemical and its potential effects on the human body is almost as confusing as the FDA’s attempts to communicate its exact position on BPA. As one blogger has pointed out, the communication between the FDA and the public needs to be streamlined, and the issues with BPA need to be better clarified in order to re-institute the public’s trust in the FDA.

The final analysis is this: the FDA intends to leave no stone unturned in order to fully investigate the potential effects of this chemical it will review the regulatory framework, accept public comment, and conduct or support millions of dollars worth of research. In the meantime, the FDA is directing consumers to a new website for interim precautions and more information. The debate has been revived and it appears it will continue until further research, investigation, and regulatory reviews have been completed.

Friday Links

Since it’s Friday, we thought we’d share the above clip, which is one of our favorite depictions of a legal hearing in popular culture. It comes from the 1981 film, Absence of Malice, starring Sally Field as a naive young newspaper reporter and Paul Newman as the peeved object of her journalistic investigation (as well as that of her affection). Field’s reporter has been led to believe by the governmental authorities that Newman’s character is under investigation for murder. This scene, which comes late in the film, shows Wilford Brimley, who plays a senior Department of Justice official, taking everyone – and we mean everyone – to task for their unsupervised antics and sloppy approach to the administration of justice. (The second half of this clip can be found here).

Yesterday, in a divided opinion, the Fourth Circuit issued an important decision in the removal context of which defense counsel should be aware. In announcing its new adherence to the last served defendant rule, the Fourth Circuit stated that it would “join the Sixth, Eighth and Eleventh Circuits in adopting thelast-served defendant rule and hold that in cases involvingmultiple defendants, each defendant, once served with formalprocess, has thirty days to file a notice of removal pursuant to28 U.S.C. § 1446(b) in which earlier-served defendants mayjoin regardless of whether they have previously filed a noticeof removal. Barbour v. Int’l Union United Auto. Aerospace & Agric. Implement Workers of Am., — F.3d –, No. 08-1740 (4th Cir. Feb. 4, 2010) (PDF). For some early analysis on this matter, see this post at the North Carolina Appellate Blog.

This past December, the ABA Journal issued its third annual list of the best legal blogs. (We here at Abnormal Use are keeping our fingers crossed for best new legal blog next time!). Until then, though, at our Twitter page, we have created a public list of links to the Twitter accounts of all those so honored (at least all those with Twitter accounts). If you’re a Twitter user, you can follow that list here and see the original ABA Journal article here.

Self promotion mode on. Here in South Carolina, lawyers are now nearing the end of their CLE compliance year. Accordingly, one of our blog’s contributors – as well as another lawyer from our firm – will be making presentations to next week’s Greenville County Bar Association End of Year CLE. Senior associate and blog contributor Jim Dedman will be speaking about “Cybersleuthing 101,” a topic about which we can assure you he knows much. Shareholder Stuart Mauney will also be making a presentation entitled “The Lawyer’s Epidemic: Suicide, Depression, and Substance Abuse.” Mauney was recently appointed to chair the South Carolina Bar’s H.E.L.P. Task Force (Health and Education for Legal Professionals). You can learn more about the event, which takes place a week from today, on Friday, February 12, in this month’s Greenville Bar News [PDF].

Abnormal Interviews: Law Professor Rory Ryan

Today, Abnormal Use inaugurates a new series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the first installment, we turn to friend of the blog and law professor Rory Ryan, currently a member of the faculty at Baylor Law School in Waco, Texas. He teaches courses in Federal Courts, Civil Procedure, Appellate Procedure, and Constitutional Law. Professor Ryan was kind enough to answer the following questions (and even provide his own external links embedded into his responses). The interview is as follows:

1. What should attorneys practicing in federal court be aware of as we enter 2010?

Three things:

(1) True notice pleading, as it seemingly existed a few years ago is dead. Become an expert in how your jurisdiction has interpreted the Twombly/Iqbal pleading standard, which is sometimes described as “Plausibility Pleading.”

(2) The Federal Rules have been “Restyled,” so pay attention to the new words (which aren’t supposed to have a different meaning);

(3) Major jurisdiction and venue legislation is pending. The Federal Courts Jurisdiction and Venue Clarification Act of 2009 is too varied and nuanced to even highlight in this space, so I’ve attached the Section-by-Section Analysis from the Office of Legislative Affairs and the Administrative Office of the U.S. Courts.

2. What do you think is the most underutilized federal practice tool or technique?

Definitely impeachment. The alternative would be accepting that your local federal judge doesn’t answer to you and doesn’t care what you think of her, and few lawyers seem willing to accept this.

3. What is the most significant federal appellate court opinion to come out in the last year?

Ashcroft v. Iqbal from the Supreme Court, which solidifies that Twombly really did change the law. It has caused quite a stir both in the academy and among practitioners. And even for those who practice primarily in state court, it will be of interest to observe how many states follow the Supreme Court’s new rule. (I would call it an interpretation, but I just can’t bring myself to do it. The Court changed the law, and basically did so in a way that made the forms in the FRCPs fail the test set out by the rules. There’s a process for amending the Civil Rules—and that process involves Congress.)

4. What was the biggest surprise from the last U.S. Supreme Court term?

Citizens United, which was decided this term (in a mere 183 pages) but was carried over from last term. Maybe wanna-be-Justice President Obama and Justice Alito need a beer summit to discuss the decision.

5. What advice would you offer to lawyers practicing in the area of products liability?

Read the following blogs: Drug and Device Law, Mass Tort Litigation Blog, and of course, Abnormal Use (this is where you add this blog to your RSS reader, (or learn what an RSS reader is and then add it.)) Also, learn everything you can about an important forum-selection tool you probably ignored in law school—fraudulent joinder.

BIOGRAPHY: Professor Rory Ryan joined the Baylor Law School faculty in 2004 after playing two sports and occasionally attending classes at Morningside College. He graduated first in his class, summa cum laude, from Baylor Law School, where his final G.P.A. ranks first among those recorded. After graduating from Baylor, Professor Ryan clerked for the Honorable C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit. He maintains an active appellate practice before both Texas and federal courts and has published extensively on matters of federal procedure and jurisdiction.

What Does Society Demand from a Chicken Sandwich?

In my recollection of first-year Torts, I remember no case in which a chicken sandwich was a dangerous instrumentality. But the law evolves. It changes. The chicken sandwich is not immune to the whims and caprices of history, nor shall it remain untouched by shifts in the jurisprudential landscape. The time of the chicken sandwich is upon us. In Sutton v. Roth, L.L.C., No. 08-1914, 2010 WL 235143 (4th Cir. Jan. 21, 2010) [PDF], a divided panel reversed the district court’s grant of summary judgment on injuries sustained when a consumer ate a freshly-cooked chicken sandwich. We very briefly noted this opinion in an earlier post, but we did not fully explore the seismic shift in the law that this case affords for the chicken sandwich.

It was August of 2005 when Mr. Sutton’s brush with history occurred. His problems began when he thought it would be a good idea to eat at a Duffield, Virginia gas station at 1:30 a.m. (If that’s not assumption of risk, what is?). Sutton and three others (or the “entourage” as suggested by the Court) noticed the fabled golden arches (a McDonald’s attached to the truck stop) and thereupon entered the “restaurant/convenience store.” Initially, it appeared that the McDonald’s franchise was closed. Not to be deterred, Mr. Sutton scoured the lot and found the McDonald’s employees assembled outside. Surely because the McRib was not in season, Sutton ordered a fried chicken sandwich. If only the McRib had been available; what a cruel mistress is history for denying him the McRib that fateful evening. However, Mr. Sutton, or perhaps the fates themselves on his behalf, chose a chicken sandwich. It was to be his undoing.

When Sutton bit into his sandwich, he immediately regretted his decision, for untold “grease flew all over [his] mouth.” Grease coated his lips and chin, and blisters formed immediately. Mr. Sutton found the McDonald’s employees (who were once again outside, doing whatever restaurant employees do outside their place of employment in the wee hours of the night). One of them attempted to defuse this tense customer relations moment with the following statement: “This is what happens to the sandwiches when they aren’t drained completely.” Id. Momentarily satisfied, Sutton and his “entourage” left the station, “[a]fter they finished eating.” Id. Within the next two days, Sutton realized that his injuries were more serious than he thought and sought out a doctor. Months later, Sutton saw a second doctor who treated him with lip balm. He then filed suit and demanded $2 million in his complaint. (One suspects that some associate somewhere had the unenviable task of drafting a memorandum as to whether properly draining later chicken sandwiches constituted inadmissible subsequent remedial measures.).

The district court granted summary judgment for McDonald’s and judgment as a matter of law to the franchisee. Really, the main issue of the ensuing appeal was the district court’s exclusion of the employee’s statement. The Fourth Circuit reversed the exclusion finding abuse of discretion, and ruled that the statement was admissible as a statement by a party-opponent under Federal Rule of Evidence 801(d)(2)(D). After all, the declarant was wearing a McDonald’s uniform, with other sufficient indicia of agency to bind the employer. Moreover, the appellate court found that the exclusion of the statement was harmful error because it evinced a standard of care. The panel also rejected the district court’s sua sponte act of finding Sutton contributorily negligent for “biting into the hot sandwich.” I would tend to agree with the district court, looking to the surrounding circumstances of voluntarily eating an early morning meal at a gas station as assumption of a known risk. However, the panel reversed the grant of summary judgment and ordered additional discovery.

On a jurisprudential note, it’s interesting how injuries from hot food or drink have entered the realm of compensable injury. Society has apparently come to accept the Goldilocks theory of liability, where all food must be served at the precisely “right” temperature. The hot coffee cases used to be laughable, but not anymore. The next time you find yourself at a restaurant or convenience store well past the witching hour, consider any claims you may have under negligence and the warranty of merchantability. Rest assured, whatever their merits, you may be entitled to a trial. Above all else, though, ensure that your chicken is properly drained.

Failure-to-Warn Claims Fail Without Evidence Plaintiff Would Have Pursued Alternative Course of Action

An overweight plaintiff who was seriously injured when her car’s seat failed in a collision recently lost her failure-to-warn case against Ford Motor Company. The plaintiff, who weighed more than 300 pounds, was driving a 2002 Ford Explorer at the time of the accident. She had stopped to make a turn and was rear-ended by an SUV travelling approximately 30 miles per hour. During the collision, the plaintiff’s seat collapsed backwards, and her head and shoulders hit the back seat. The impact with the back seat fractured her vertebra rendering her a paraplegic.

The plaintiff claimed that the Explorer’s seats were not designed for a person of her size and that Ford should have provided warnings. She claimed that she would not have purchased the vehicle if she had known that the seats were not designed or tested to perform with occupants of her size. She also claimed that Ford was negligent in failing to design and test seats for occupants who weighed more than 220 pounds.

The trial court granted Ford’s motion for directed verdict. The Missouri Court of Appeals upheld the directed verdict as to a plaintiff’s failure to warn claims. The court held that the plaintiff failed to present evidence that she would have taken an alternative course of action had Ford provided her with warnings. Moore v. Ford Motor Co., — S.W.3d —, No. ED 92770, 2009 WL 4932736 (Mo. Ct. App. Dec. 22, 2009).

The Court of Appeals held that it was it was essential to plaintiff’s failure to warn claim that she prove that “a warning would have altered the behavior of the individuals involved in the accident.” Id. (citing Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. 1992)). Although Missouri law calls for a rebuttable presumption that the plaintiff would have heeded a warning had it been available, the court held that the plaintiff must still offer evidence that she would have pursued an alternative course of action in heeding the warning. Here, the plaintiff offered no evidence of what alternative course of action she would have taken had she been warned of the fact that Ford’s seats had not been tested for a person of her size.

The court found it significant that the plaintiff admitted she did not review the owner’s manual until after she had purchased the car. This undermined her theory that she would have altered her behavior before buying the vehicle, had Ford provided adequate warnings. The court held that there simply was no evidence that plaintiff would have altered her conduct in purchasing the Ford even if there had been warnings. That fact precluded recovery on plaintiff’s failure to warn claims.

New CPSC Recommendations for Lead Content/Lead Paint Limits

On January 15, 2010, at the direction of Congress, the Consumer Product Safety Commission made recommendations for the improvement of Section 101 of the Consumer Product Safety Improvement Act (CPSIA) [PDF]. Section 101 establishes lead content limits and lead-in-paint limits. The initial lead content limit established under the CPSIA took effect on February 10, 2009 and was 600 parts per million (ppm). This limit was reduced to 300 ppm on August 14, 2009. On that same date, the 90 ppm lead-in-paint limit also took effect. Recently, Congress asked the CPSC to assess enforcement efforts and make recommendations for improvement.

In its January 15, 2010 statement, the CPSC reported that “[i]n Fiscal Year 2009, the Office of Compliance identified 338 violations relating to lead content limits of the CPSIA.” These violations were identified through voluntary reports, market surveillance, and most often screening at ports using x-ray fluorescence technology. With respect to lead content enforcement, the CPSC identified three hurdles.

First, the CPSC explained that “given the breadth of the definition of children’s products, there were numerous products that were technically noncompliant” but that would not likely cause lead absorption into the human body. While the CPSC utilized exclusions under the CPSIA, certain products such as youth all-terrain vehicles, children’s bicycles, lead crystals and rhinestones in children’s apparel, and brass materials in toys were denied exemption requests.

An additional hurdle identified by the CPSC was the provision of the CPSIA relating to the retroactive application of the lead content limits. Essentially, the CPSIA made it unlawful to sell products that exceeded the lead content limits regardless of their manufacture date. This provision created numerous problems for retailers with large inventories when the limits went into effect and second-hand stores. These problems were especially significant for retailers that sold used books. Finally, the CPSC noted that the costs of third-party product testing was expensive and was creating a huge burden for small manufacturers.

With respect to lead-in-paint limit enforcement, the CPSC reported 117 violations during Fiscal Year 2009, most of which were found during staff screening. Interestingly, the CPSC reported that they had “not seen the same implementation and enforcement issues with regard to lowering the lead paint limits as it has seen with the lead content limits.” Therefore, it did not identify any hurdles or make any improvement recommendations to Congress with respect to lead-in-paint.

After identifying the above hurdles to enforcement and implementation, the CPSC made four recommendations to Congress with respect to lead content enforcement. The first addressed products that were out of compliance but posed no risk of danger to children. The CPSC recommended “additional flexibility within this section to grant exclusions from the lead content limits in order to address certain products.” The second recommendation addressed printed materials, which would grant an “exclusion for ordinary children’s books and other children’s paper-based printed materials. The third addresses the proposed reduction of lead content limits from 300 ppm to 100 ppm in August 2011. The CPSC recommended prospective application of this limit as opposed to the now retroactive application of limits. The CPSC’s final recommendation addresses required testing and proposes that testing and certification requirements be based upon volume of production and channels of distribution.

All manufacturers and retailers first need to be aware of the lead limits now in effect as well as the proposed lower limits to be implemented in August 2011. However, based on the tone of the recommendations made to Congress, it appears that the CPSC is trying to address the burdens that these restrictions put on manufacturers and retailers without compromising the safety of our children. We all should be on the look out for possible revisions to the current CPSIA and its possible effect on liability for violations.