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Consumer Product Safety Better Prepared

Product safety laws regulate thousands of consumer products across numerous industries and fall under the broad scope of the Consumer Product Safety Commission (CPSC). Manufacturers, distributors, retailers and their suppliers must keep abreast of numerous federal consumer product safety laws and regulations and their state counterparts, which are being more universally enforced. These laws include the Consumer Product Safety Act (CPSA), Child Safety Protection Act, Children's Gasoline Burn Prevention Act, Federal Hazardous Substances Act, Flammable Fabrics Act, Poison Prevention Packaging Act, Refrigerator Safety Act, Virginia Graeme Baker Pool and Spa Safety Act, and Consumer Product Safety Improvement Act (CPSIA).

Barnes & Thornburg has substantial experience in matters involving the CPSC and state issues, including the complex CPSIA. Our attorneys advise clients on compliance, recalls, litigation, and reporting requirements. We work with clients across the U.S. who produce, sell or distribute consumer products, including major manufacturers, suppliers, distributors, private labelers and retailers.

Compliance Counseling, Defense and Proposition 65

Consumer product safety law is subject to frequent change and keen public scrutiny, and the CPSIA imposes extensive regulatory compliance requirements. Under the CPSIA, certain companies and individuals must report to the CPSC immediately if they learn their product:

  • Does not comply with a mandatory standard
  • Is subject to a ban under the Consumer Product Safety Act
  • Contains a defect that could present a substantial product hazard

We counsel clients on product safety law compliance matters and on responding to customer concerns, including addressing issues addressed publicly through SaferProducts.gov. Our attorneys also have developed productive relationship with the CPSC and its state counterparts. Working closely with our clients, we design and manage product recalls as appropriate, handle reporting and corrective action plans, and respond to customer complaints. We also have significant experience with various state product safety laws, including California's Proposition 65. Proposition 65 affects businesses nationwide by imposing strict warning notices for virtually all products sold or distributed within California that contain even very small levels of certain chemicals, and it imposes significant penalties and risks for noncompliance, as well as the risk of citizens- suits.

We also assist clients in developing procedures for crisis response and accident investigation, as well as checklists to follow when immediate action is required. To limit a company's exposure to liability, we offer employee training on best practices to follow when conducting internal investigations or responding to a catastrophic accident.

Product Stewardship and Recalls

We have experience in a variety of crisis response scenarios and provide proactive guidance on risk avoidance and complaint management, as well as assistance with investigations, voluntary and involuntary product recalls, and responses to claims.

We assist clients with insurance claims and counsel consumer product manufacturers and distributors on risk-management strategies, such as auditing insurance coverage and reviewing warnings and product literature, all with an eye on helping to reduce insurance costs. Barnes & Thornburg attorneys also provide guidance on managing contracts with contractors, vendors and suppliers to ensure the relevant entities are listed as additional insureds and that all parties have adequate insurance coverage.

We also advise manufacturers on proper documentation of their design and safety processes, which can be critical if a lawsuit or recall arises. We also collaborate with clients to develop procedures for tracking and responding to customer complaints and we have created and led training sessions on proper customer communication. Our attorneys have handled investigations, responded to recalls and other complaints, worked with the CPSC on reporting requirements and addressed Occupational Safety and Health Administration citations.

Barnes & Thornburg's attorneys are available 24 hours a day and can be dispatched to a crisis location immediately to help handle a recall or other emergency, including assisting with media response.

Responding to Consumer Incident Reports

The CPSIA introduced significant new requirements, including the creation of a publicly accessible and searchable incident database. The online database of consumer complaints, launched in March 2011, has had significant business and legal implications for manufacturers, distributors, private labelers, and retailers of consumer products. Section 212 of the act required the CPSC to create the database with the goal of providing a website where consumers can both report product safety incidents and search for prior incidents and recalls of products they are considering purchasing.

The website, SaferProducts.gov, permits users to share content with social networking sites such as Facebook and Twitter. As a result, consumer complaints posted on the site can easily and quickly be shared with millions of consumers worldwide.

We counsel clients on responding to consumer incident reports. We have handled thousands of consumer product liability complaints and are experienced in establishing claims processing and investigation procedures in connection with these reports and other consumer complaints. We can assist in many ways, such as developing specific guidelines and training for investigating and responding to consumer reports submitted to the SaferProducts.gov database and investigating and drafting appropriate responses to complaints.

The following is a representative sampling of our experience in this area:

  • Defending manufacturers and distributors against consumer product safety investigations in order to avoid product recalls or minimize their scope. Representative industries include furniture, hardware, building supplies, jewelry, recreational vehicles, sporting equipment, consumer electronics, toys and clothing.
  • Advising consumer product manufacturers on the business and regulatory impact of legislative proposals
  • Defending manufacturers and distributors against Proposition 65 litigation
  • Advising manufacturers and importers of children's clothing and toys regarding content, testing and certification requirements associated with Proposition 65 and CPSIA
  • Assisting consumer product manufacturers with Freedom of Information Act requests where the CPSC proposed to release information about the manufacturer and its products
  • Serving as the outsourced provider for an entire consumer complaint investigation, including the response process, on a flat-fee basis
  • Assisting manufacturers, importers, and distributors of consumer electronics in investigations of multiple product lines regarding compliance with various statutory requirements, including the CPSA, CPSIA, Child Safety Protection Act and Federal Hazardous Substances Act
  • Counseling sporting goods and sports clothing manufacturers regarding requirements for multiple product lines under the Child Safety Protection Act, CPSIA, and Federal Hazardous Substances Act
  • Counseling consumer product manufacturers on new certification, labeling and testing requirements under the CPSIA
  • Preparing and submitting Section 37 reports under the CPSA
  • Designing and negotiating CPSC recalls and corrective measures for manufacturers and distributors of various consumer products, including toys, clothing, recreational equipment and electronics
  • Coordinating numerous post-sale warning and product-retrofit campaigns for manufacturers of products such as appliances, kitchen products, battery chargers, pumps and recreational equipment
  • Counseling consumer product manufacturers about the reporting obligations under Section 15 of the CPSA; preparing Section 15 reports.
  • Advising a children's furniture manufacturer in connection with a CPSC recall and related product liability litigation
  • Representing a major consumer electronics company in relation to CPSC reporting, recall, and related product liability litigation, and advising on recall design and implementation
  • Assisting a major electronics manufacturer with CPSC reporting and recalls, including design of corrective measures
  • Defending an electronics manufacturer regarding allegations of failure to comply with a recall's approved corrective action plan
  • Counseling manufacturers, importers and retailers on CPSIA compliance issues, including product-specific requirements, General Certificates of Conformity, testing and certification



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