$100,000 Civil Penalty for Importing Violative Fireworks

No, it is not quite July yet — even though I truly wish it was with all this cold weather the past couple of weeks in South Carolina — the Consumer Product Safety Commission (“CPSC”) is already anticipating next July. On December 8, 2010, the CPSC announced that four fireworks firms agreed to pay a $100,000 civil penalty for importing violative fireworks. The entire agreement can be viewed here [PDF].

Jake’s Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises, LLC, and Pacific Northwest Fireworks, Inc. are all in the business of putting fireworks into the stream of United States commerce. From December 2006 to September 2007, these companies imported over 200,000 fireworks that violated CPSC’s regulations at 16 C.F. R. Section 1500.17 (a)(3) and 16 C.F.R. Part 1507. Section 1500.17(a)(3) requires that fireworks that are intended to make an audible sound to contain no more than two (2) grains of pyrotechnic composition.

The fireworks imported contained more than the allowable limit, which could cause serious injury or death if they exploded at ground level. Not only did the CPSC impose a civil penalty, it ordered the destruction of these fireworks within six months of their final order. The CPSC will supervise the destruction but if these companies fail to destroy the subject fireworks within the allowable six months, they will be fined $5,000 a day, not to exceed $750,000 in one year.

With the Fourth of July less than 7 months away, it seems to us that the destruction deadline may be cutting it a bit close. However, with the possibility of a $750,000 fine, these companies will more than likely destroy the violative fireworks sooner than later, making it safe for next summer’s festivities.

Safer Holiday Shopping and Playing Tips from the CPSC

Now that the Thanksgiving holiday has passed, the shopping season is officially under way! Last week, the U.S. Consumer Product Safety Commission (“CPSC”) released tips for a “Safer Holiday Toy Shopping and Playing Experience.” If you are one of those shoppers that got their holiday shopping finished at 3:00 a.m. on Black Friday, these tips come too late. For all other sane people, the CPSC’s tips are helpful to consider when shopping during the upcoming holidays.

According to the CPSC, from 2008 to 2010, both toy recalls and toy-related fatalities have declined. The CPSC attributes the decrease in recalls and fatalities with the increased safeguards put in placed in the recent years. Some of those safeguards included establishing lead paint and lead content limits, tracking imports and converting voluntary toy standards into mandatory standards.

Despite the decrease in toy recalls and toy-related fatalities over the past several years, the CPSC reported that toy-related injuries are increasing. “In 2009, there were an estimated 186,000 emergency room-treated injuries related to toys with children younger than 15, which is up from 152,000 injuries in 2005.” While these injuries may be associated with a toy, they were not necessarily caused by the toy. Regardless, this increase in injuries is a concern of the CPSC and, therefore, it released three main tips to help keep the holiday season incident-free:

1. Always choose age appropriate toys.
2. Always include safety gear when purchasing sports-related or ride-on toys.
3. Always take note of the location of play — avoid traffic, water, kitchens, and bathrooms.

In addition to the above, the CPSC recommended avoiding balloons and magnets for small children, immediately discarding wrapping when a toy is opened, and supervising children when they are charging batteries. The CPSC hopes that with these tips, shoppers will be armed with considerations when buying toys for their family members. Happy shopping!

Bounce Houses — Possible Toxic Entertainment for Children

What you see captured above is Main Street Friday in our own downtown Greenville, South Carolina. You will notice what some people call a “Bounce House” or “Bouncy Castle” featured in the photo. While all Greenville parents are happy to have a form of entertainment for their children as they enjoy the show, what they do not know is that they may be allowing their children to jump in a toxic structure.

Last week, The New York Times reported that California Attorney General Jerry Brown filed a lawsuit against entities that manufacture, distribute, or supply bounce houses used at events such as Main Street Friday or children’s birthday parties. He claims that the houses contain more than the allowable limit of lead and pose health risks to children. The Center for Environmental Health began an investigation into the vinyl used in the construction of bounce houses — the component that gives them the bounce. The results of their investigation revealed lead levels in the vinyl varying from 5,000 parts per million to 29,000 parts per million. The federal limit for lead levels is 90 to 300 parts per million, significantly lower than the vinyl tested in these houses.

Attorney General Brown reported that his intention for this lawsuit is to cause manufacturers to stop using lead-containing vinyl and/or ensure that all bounce houses have adequate warnings regarding possible lead exposure. While that actual health effects on children by jumping in a bounce house for several hours is unknown, Dr. Megan Schwarzman, a family physician at Berkeley Center for Green Chemistry, told the Times that “there was no safe level of lead exposure for children.” It will be interesting to see how this litigation progresses and whether similar lawsuits will arise around the country. While parents will be glad to be warned about the possible toxicity of bounce houses, I am sure that children will not be pleased!

For A Limited Time Only And Not Forever After

If you are like me, you remember begging your parents to take you to Burger King in the early 1980′s. You had only one thing on your mind and no it wasn’t a Whopper, chicken fries or even to look for Herb. You, like me, were coveting the free glass that came with your drink. You know you wanted the one with Jabba the Hutt or maybe the one with Wickett the Ewok. I can remember taking my prized possession home with me and religiously asking for, neigh demanding to drink from it at every meal. You can imagine my dismay when after a month’s worth of running the glass through the dishwasher on a daily basis—what was left did not even resemble the vivid bright colors of Endor. The paint on the glasses faded along with my joy. Now I know why. In 1983 they weren’t using cadmium! I’m convinced that whatever lead substitute was in the paint of my prized Ewok glass was not cadmium.

Burger King may not have used cadmium in the paint of the famed Star Wars series glasses, but unfortunately the manufacturer of some 12 million Shrek Forever After glasses did. The glasses were, for a limited time only, distributed by McDonalds. On June 4, 2010, McDonalds and the U.S. Consumer Product Safety Commission voluntarily recalled the glasses. We here at Abnormal Use previously commented on other cadmium related news in 2010. For those posts, click here and here. It appears that the use of cadmium is more widespread than previously thought. In addition to the voluntary recall, McDonalds is offering a refund for the full purchase price ($2) plus and additional $1. For more details of McDonalds’ efforts and how to obtain your refund, click here.

CPSC v. Facebook?

Strange things are afoot with respect to the Internet presence of the Consumer Product Safety Commission (“CPSC“). Earlier this week, the government agency issued a formal tweet warning users not to “like” or “use” in “any way” any unofficial Facebook pages dedicated to or representing themselves as the CPSC. (See above for a screen capture of the tweet in question.). Curiously, the tweet reads like a formal directive forbidding any participation in Facebook’s unofficial CPSC fora. (Yes, we said “fora,” not forums. Get over it.). This stern pronouncement prompted some investigation on the part of our investigative reporters here at Abnormal Use, a site often covering the CPSC.

First, we logged into our Facebook account and input “CPSC” into the search field. Apparently, there is not one, but five unofficial Facebook pages with the titles referencing the agency. (The search results for “CPSC” are depicted above.). Note that collectively, the three unofficial Facebook pages in that initial search result have a total of twelve followers or admirers or likers or whatever they’re called on Facebook. Note also that the “Web Results,” depicted at the bottom of the page, return two links to the official CPSC site and a third to the agency’s Wikipedia entry (which, as far as we know, the CPSC has not yet warned us against).

We decided to investigate further.

The first Facebook Community Page (depicted above) boasts eleven followers. It appears to be some type of automated page which collects various Facebook status updates and posts which reference the search term “CPSC.” Facebook users who update their status or posts links including the acronym for the agency will find their posts collected on this community page.

The next Facebook Community Page is only slightly different (but it has no admirers, or perhaps it did, but the agency shooed them away with its austere tweet). Note that this second Community Page (depicted above) is dedicated to the “cpsc” (in all lower case). It’s collection of links and status updates is identical to that of the first page, but it’s group title features no capital letters. An interesting quirk in Facebook’s new Community Page system, or anti-government conspiracy? We here at Abnormal Use remain on the case.

The third Facebook Community Page (depicted above) is titled “CPSC” (in all caps) and is identical in all respects to the first Community Page save for two things: it has but one admirer and its default icon appears to be a suitcase rather than a student in a graduation cap and gown.

We also input the full name of the CPSC into Facebook’s search field and found the page depicted above, complete with a more official looking profile picture in the form of a seal. The content seems to be primarily derived from Wikipedia’s CPSC entry, though, and only one person “likes” this unofficial incarnation of the CPSC on Facebook.

Finally, we uncovered an unofficial page for the Consumer Products Safety Commission Injury Coder (Nationwide Children’s Hospital), which features no admirers or content of any kind.

And that, dear readers, is all that we uncovered.

It seems like the culprit is not some sinister villain but instead some type of automated page creation system at Facebook. Interestingly, while the CPSC has certainly dipped its toe into the social media pond, it has not established any official presence on Facebook. We see on the landing page of the agency’s official website that it maintains accounts on YouTube, Flickr, and of course, Twitter. (It even has a page dedicated to its official Podcasts, although the agency has not recorded one in some time.).

We are puzzled and perplexed.

Why the hate for Facebook? Why no official presence there?

What’s the beef against Facebook creating a Community Page for discussion of CPSC issues?

Why can’t we “like” or use an unofficial page collecting links to unofficial CPSC information?

Where on Facebook should we go for our CPSC fix?

All kidding aside, one of the advantages of using Facebook to promote one’s own agenda is that much of your audience is already there using the site for other reasons. One would think that the CPSC would want to use that site in order to reach as many people as possible about potential recalls and product information. By using that site, too, CPSC essentially deputizes other users, who have the option to forward along items posted by the CPSC to their friends.

All screen captures were taken on the morning of Tuesday, June 8.

Infant Safety Initiatives by the CPSC

Over the past several weeks, the U.S. Consumer Product Safety Commission (“CPSC“) issued new federal safety standards for the manufacture and importation of infant bath seats and infant baby walkers. These mandatory rules were prompted by Section 104 of the Consumer Product Safety Improvement Act (“CPSIA“), which requires the Commission to “study and develop safety standards for infant and toddler products” and either make the voluntary safety standards mandatory or impose a stricter standard.

Section 104 of the CPSIA applies to the following products: “full-size cribs and non full-size cribs; toddler beds; high chairs, booster chairs, hook on chairs; bath seats; gates and other enclosures for confining a child; play yards; stationary activity centers; infant carriers; strollers; walkers; swings; and bassinets and cradles.” This section does not allow the Commission to develop safety standards “as they see fit” or “on their own time,” it directed the Commission to “begin two rulemakings by August 14, 2009 and promulgate two more rules every six months until all products have mandatory safety standards.” According to the CPSC press release on May 20, 2010, “[t]he federal standard for infant bath seats is the first mandatory standard issued by CPSC as required under the [CPSIA] for a range of infant and toddler durable products.”

With respect to the infant bath seats, the CPSC voted 5-0 in favor of imposing a stricter standard than the current ASTM voluntary standard. This standard added the following:

stricter stability requirements to prevent the bath seat from tipping over, tighter leg opening requirements to prevent children from slipping through the leg openings and a larger permanent warning label alerting parents and caregivers that bath seats are not safety devices and that infants should never be left unattended in a bath seat.

The final mandatory rule for infant baby walkers also imposes additional requirements to the ASTM voluntary standard, including the following:

using the actual weight of a walker in a calculation to determine the launching distance for the stair fall test, specifying equipment used in the stair fall test, adding a parking brake test for walkers equipped with parking brakes.

These standards will become effective six months after publication to the Federal Register and bath seats or walkers manufactured or imported after that date must comply with these standards. Interestingly, the CPSC noted that no baby bath seat currently on the market complies with the new mandatory standard.

What we can expect is a number new mandatory standards for the types of products listed above. As with bath seats and walkers, the CPSC will likely impose additional standards beyond the voluntary ASTM standards. Counsel and management for companies selling these types of products need to be on the look out for these changing standards as to avoid non-compliance and hefty fines by the CPSC.

Celebrate Memorial Day

We here at Abnormal Use are observing Memorial Day today in honor and remembrance of all the men and women who have died serving the American military. Do you know the history of Memorial Day? Briefly, Memorial Day, originally called Decoration Day, was officially proclaimed on May 5, 1868 by General John Logan, national commander of the Grand Army of the Republic, as a time to honor those that gave their lives in the Civil War. After World War I, Americans honored those that died in all America’s wars on this day. In 1971, Congress declared Memorial Day an official federal holiday.

Many Americans celebrate this day by visiting memorials or attending family gatherings, including picnics, pool parties, and parades. If you are in fact heading to a pool party, take a look at the U.S. Consumer Product Safety Commission’s press release regarding its Pool and Safely campaign that was launched last week. This is campaign is a “first-of-its-kind national public education effort to reduce child drownings and non-fatal submersions, and entrapments in swimming pools and spas.” It will be interesting to see what directives come out of this campaign.

Whatever the case, the summer is now underway! Enjoy your day off.

Another Plaintiffs’ Friendly Post?

To my dismay, I was recently described as having written a post from a “plaintiff’s perspective.” The comment shook me to the core, as I have been sleepless, listless, and suffering from a psychological malaise deeper than our national debt. I remember reciting proudly with my incoming class at new lawyer orientation, “The plaintiff’s case is never meritorious.” My entire existence has been devoted to ensuring that no stone goes unturned in the search for the truth, which inevitably leads to the defense verdict. To say I am deeply offended at any intimation that I lean to the other side is an understatement of seismic proportions. After all, what is the point of the billable hour, if not to justify my very existence.

See the indecency here, where Polson Enterprises, The Boating Information Company, complimented a previous post concerning a jury’s awarding $3.8 million to a teenager who was struck by a boat propeller when his friend backed over him in the water. I didn’t actually intend to suggest that boat propellers be redesigned to look something like an oscillating fan, which was essentially what Plaintiff’s counsel argued in that case, so perhaps I need to take a more definitive stand when I believe the Plaintiff’s argument is off base. And so while I pledge to do so in future posts, this is not one such topic. A plaintiff I actually could potentially support is one who takes on Miley Cyrus. Not so much because the tween “role model” allegedly gives lap dances in bars or always seems to be involved in some photo scandal, as those issues are outside the scope of this blog. This time, Miley is in the news for a recall of her jewelry line, which was sold exclusively at Wal-Mart stores, after test results showed the jewelry contained high levels of the toxic metal cadmium.

Although Wal-Mart initially continued to sell the jewelry, reportedly telling the Consumer Product Safety Commission that testing items already on store shelves would be too difficult, it eventually changed its approach, issuing a statement that it had pulled “the few products that did not” comply with its new testing regimen. Studies reportedly have shown that girls of the age of most Cyrus fans, ages 6 to 11, are at higher risk for absorbing more cadmium than other children or adults. In any event, the affected items have, at this point, been pulled from the shelves. Only time will tell if this causes future damage to the Miley Cyrus brand.

CPSC Approves Final Rule on Factors Affecting Civil Penalties

On March 16, 2010, the U.S. Consumer Product Safety Commission (“CPSC”) approved, by a 4-1 vote, additional factors that the Commission must consider when determining a civil penalty amount for knowing violations of CPSC laws.

Prior to this amendment, the Commission considered the following factors in its determination of the amount of a civil penalty: “the severity of the risk of injury; the occurrence or absence of injury; and the number of defective products or the amount of substance distributed.” Now, the Commission is required to consider the following additional factors:

(1) the nature, circumstances, extent and gravity of the violation, including the nature of the product defect or the substance; (2) the appropriateness of the penalty in relation to the size of the business or of the person charged, including how to mitigate undue adverse economic impacts on small businesses; and (3) other factors as appropriate.

Of interest is not that the Commission now has additional factors to consider but some of the reasons that this was not a unanimous vote of approval. Chairman Inez M. Tenenbaum, Commissioner Robert S. Adler, Commissioner Thomas H. Moore, and Commissioner Nancy Nord voted to approve this rule. Chairman Tenenbaum, along with Commissioners Adler and Moore filed a joint statement of approval, and Commissioner Nord filed an independent statement of approval. [PDF]. Commissioner Anne M. Northup, on the other hand, “voted against the proposed Final Rule Interpreting Civil Penalty Factors because it fail[ed] to take the agency where [she] believe[d] it should arrive five years from now.” [PDF].

Commissioner Northup explained that in her view “[t]he [Consumer Product Safety Improvement Act ("CPSIA")] imposes so many new requirements all at once–including arbitrary lead and phthalates limits (not based on risk), third-party testing, certification, tracking labels, etc.–that it challenges the capacity of both small and large consumer product companies to comply.” Commissioner Northup is concerned that the CPSIA increases the cost to introduce products into the market to an extent that enforcement and regulation will cause market exit, job loss, and reduction in product variety.

Specifically with respect to the proposed amendments to the rules, Commissioner Northup found that the new rules should have specifically stated that the Commission will treat technical violations differently than substantive violations. Without this explanation, there is room to consider technical violations differently but people are still guessing. Further, she did not approve of the fact that the rule did not give “credit to companies for their good faith in following compliance policies and good efforts in reacting to the occasional problems that will inevitably arise.” Finally, Commissioner Northup criticized the language of the rules as “too vague and flexible to reliably sort the good from the bad and instead catches everyone in the same net and tests to presume that anyone caught in the net is bad.”

As we reported in two prior posts–”Manufacturers, Importers, Distributors, and Retailers Beware: Unilateral Recall for Lead Violations may not be Enough” and “Lead and Now Cadmium: More Trouble for American Retailers“–the CPSC is imposing large civil penalties upon manufacturers, importers, distributors, and retailers for violations of the CPSIA. Commissioner Northup’s criticisms and concerns are important as the CPSIA develops and if not addressed, as she warned, could result in market exist, job loss, and reduction in product variety. The development of the CPSIA is important for all product dealers and all corporate counsel to follow.

Manufacturers, Importers, Distributors, and Retailers Beware: Unilateral Recall for Lead Violations may not be Enough

On February 4, 2010, the U.S. Consumer Product Safety Commission (“CPSC”) announced that Schylling Associates (“Schylling”) had agreed to pay a $200,000 civil penalty for lead paint violations that occurred between 2001 and 2003. This agreement is the result of CPSC staff allegations that Schylling distributed children’s toys for sale to consumers that contained more than 600 part per million in lead, which was the legal limit at the time of the alleged violations, and failed to report such violations to the CPSC. Schylling had denied that it knowingly or intentionally violated any provision of the Consumer Product Safety Act (“CPSA”) and the settlement agreement [PDF] between the CPSC and Schylling provides that the agreement does not constitute an admission that it knowingly violated the CPSA.

What is important to know for manufacturers, importers, distributors, and retailers as well as practitioners defending these entities are the facts that gave rise to this settlement agreement. From January 2002 to March 2002, Schylling imported tin pails from one of its manufacturers in Hong Kong. On March 2, 2002, testing results ordered by Schylling revealed that certain wooden handles on these pails were not in compliance with the CPSA. As a result, on March 26, 2002, Schylling performed a unilateral recall.

Additionally, between June 2001 and July 2002, Schylling imported approximately 66,000 spinning tops from another one of its Hong Kong manufacturers. On June 30 and July 1, 2002, Schylling received a report, upon its request, which provided that the wooden handles on certain samples of these tops were not in compliance with the federal lead limit. Schylling thought that it had discovered the issue before any tops had been imported into the U.S. and solved the problem by instructing its manufacturer to only use plastic handles. Schylling was wrong.

Five years later, in August 2007, a news reporter from the Chicago Tribune contacted Schylling reporting that he had purchased a non-compliant top from a U.S. consumer. As a result, Schylling submitted a report to the CPSC regarding both the tops and pails it imported from 2001 to 2003. The CPSC announced a recall of these items on August 22, 2007 and Schylling reported to its customers that they were working to resolve the issue and ensure the safety of all future products.

The CPSC has provided that while Schylling’s March 26, 2002 unilateral recall succeeded in recovering 85 percent of the non-compliant pails, the rest of the pails were not recovered and in the hands of consumers for five years. CPSC Chairman, Inez Tenenbaum stated that “[m]anufacturers, importers, distributors and retailers have a legal obligation to ensure that no banned products are introduced into or distributed in the U.S. marketplace, and to inform CPSC as soon as they become aware of information that must be reported under our laws.” Further, she warned that the CPSC would “continue to penalize companies that do not follow these basic requirements.”

The Schylling recall and resulting settlement agreement has provided all manufacturers, importers, distributors, retailers and their counsel instructions that the CPSC must be notified when there is even a potential risk of violation and that unilateral recall and investigation will not protect against this type of civil penalty.