We heard from CPSC - Here are 5 things to watch

The list of regulatory and business uncertainties resulting from the COVID-19 pandemic and the new Biden administration continues to grow each day. But the 2021 International Consumer Product Health and Safety Organization’s annual meeting and training symposium offered guidance for product safety professionals and risk managers.

ICPHSO is known for featuring insightful presentations and panel discussions with regulatory officials, consumer product attorneys and leading product safety experts from around the world. While several important factors came out of the discussions this year, here are the five key takeaways from what is informally referred to as ‘CPSC day’ – the day attendees hear from U.S. Consumer Product Safety Commission (CPSC) officials directly.

1. CPSC will refine and expand product safety priorities

CPSC priority list continues to have a refined focus. Products like window coverings, infant sleep products, table saws and high-powered magnets will remain under intense scrutiny this year and beyond. Tip-overs and carbon monoxide risks will also be on the agency’s radar. Faulty products in these categories have posed major safety risks and the CPSC will refine and expand the safety standards and rules to which these products are being held.

With its focus on these ongoing priorities, expect the CPSC to also prioritize issues related to e-commerce and the Internet of Things (IoT). Luckily, companies have more time to brush up on compliance before any future regulatory crackdown, which is sure to come under the Biden administration and a Democratic majority.

To learn more about the rise and fall of recall trends and to acquire knowledge about how to plan for one, download our 2021 State of the Nation Recall Index report.

2. CPSC wants freedom from Section 6(b)’s disclosure limitations

Consumer advocates have long wanted 6(b) revoked. And now, we have confirmation that this opinion is shared by at least one current CPSC commissioner. Acting CPSC Chairman, Robert S. Adler was direct in his comments on the topic saying, “We need at least two significant legislative changes to make the agency function as it should. You won’t be surprised to hear me say the first of these is to unshackle the agency from the information muzzle found in section 6(b) of the CPSA.”

While the provision is not going anywhere without significant debate, companies need to prepare for if and when these restrictions disappear. Consumer advocates contend that as long as the CPSC cannot publicize information about a product without company permission, consumers are unknowingly in danger. As a result, consumers and the CPSC wish to share information about possible product safety risks faster. Regardless of how this debate plays out, companies must prepare to act swiftly in the event of a recall. Otherwise, they risk the CPSC and consumer advocates shaping the first story and by extension, public opinion.

3. Rulemaking will only increase

Chairman Adler also made remarks that revealed a desire to streamline rulemaking procedures to allow the agency to establish standards and new rules more quickly. The team at Mintz warned, “New CPSC management will advocate for Congress streamlining, and perhaps diluting, the well-constructed and balanced CPSA rulemaking procedures and criteria, while at the same time engaging in ‘back door rulemaking’ through enforcement actions.” Our recommendation is to watch closely for potential new and updated rules and standards. Additionally, engage with the agency to share comments quickly while preparing your company and products to comply with future expectations.

4. CPSC's Fast-Track recall process to become more streamlined

A major overhaul of the CPSC website is coming and along with it are changes to the Fast-Track portal. These changes should make the portal more intuitive while streamlining the process to get the system back to the intended speed. A few changes to expect include auto-generated emails and reminders, the ability to download a full PDF report for recordkeeping purposes and reduced redundancy throughout the reporting process.

5. Increased enforcement activities (and civil penalties) are coming

The CPSC will devote resources to the work of civil penalties. We already saw leadership become more aggressive and vocal in its enforcement actions by late 2020. CPSC leadership is expected to continue that aggressive stance in 2021, especially under a Democratic administration.

Expect civil penalties to be levied against companies, particularly for violations such as failure to report an issue and the inadvertent sale of recalled products.

Companies should expect to see more aggressive actions from the CPSC in publicizing its efforts to protect consumers, regardless of where a product exists in the supply chain. Now is the time to double-check records and enhance product safety procedures.

We are planning a series of virtual recall roundtables that will offer opportunities to have intimate and confidential conversations among a carefully selected group of legal and regulatory experts, as well as colleagues from leading manufacturers and retailers.

During these conversations, participants are encouraged to bring their questions and concerns to the table for a group discussion. If you are interested in joining one of these sessions, or there are specific risks or topics you’d like us to cover during future events, please get in touch with me at Chris.Harvey@Sedgwick.com.

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