How Do Dangerous Products Stay on the Market?

While consumers are unknowingly buying and using unsafe products, proposed legislation that would allow the Consumer Product Safety Commission (CPSC) to more quickly sound the alarm on safety issues has apparently come to a standstill in the halls of Congress.

On January 9, 2020, U.S. Rep. Bobby L. Rush (D-Ill.) introduced H.R. 5565, the “Safety Hazard and Recall Efficiency (SHARE) Information Act,” which would amend Section 6(b) of the Consumer Product Safety Act to allow the CPSC to share critical information regarding unsafe products in a timely manner. The bill was sent to the House Committee on Energy and Commerce that day, but lawmakers have not taken further action on it to date, according to the online legislative information database of the U.S. Congress.

Why Are Consumers Kept in the Dark about Dangerous Products?

For more than four decades, Section 6(b) has protected manufacturers at the expense of consumer safety by essentially allowing them to control the information released by the CPSC. It wasn’t always that way. When Section 6(b) was originally enacted in 1972, it required the CPSC to notify a manufacturer at least 30 days before it planned to release information if the manufacturer’s identity could be identified therefrom. Notification to the company was intended to ensure that the information was accurate, fair and in furtherance of the laws that the CPSC was charged with enforcing. Companies were afforded a “reasonable opportunity” to submit comments. If the agency later determined that it disclosed “inaccurate or misleading information,” the law required it to issue a retraction in a manner similar to how the original disclosure was made.

But in 1981, at a time when the Reagan administration was pushing to abolish or dramatically cut funding and staffing for the CPSC, Congress, in an apparent compromise, significantly amended Section 6(b) to protect companies from the reputational damage that can ensue when inaccurate and unfair product safety issues are raised. Now, when the CPSC wants to notify the public about a hazardous product, it usually must get the company’s permission first. If the company objects, which it most likely will do, the CPSC may be forced to litigate the issue. Section 6(b) also allows companies to negotiate the language the agency uses in the event of a safety alert or product recall.

The SHARE Information Act seeks to restore the ability of the CPSC to protect consumers. It would amend Section 6(b) to allow the CPSC to publicly share critical information about hazardous products without risking a lawsuit by the product’s manufacturer. It also would increase the financial penalties for companies that violate product safety laws, including requirements to report deaths related to their products.

What Happens when Product Recalls Are Delayed?

The human toll of Section 6(b) was made apparent by the chain of events that led to the recall of the Fisher-Price Rock ‘n Play Sleeper in April 2019. Although the CPSC knew for years that the sleeper allowed infants to move into positions that cause asphyxia, and resulted in multiple fatalities, it kept the information secret from the public until it accidentally sent data to Consumer Reports without redacting company and product names, as Section 6(b) requires. The unredacted data showed 19 infant fatalities linked to the Fisher-Price Rock ’n Play Sleeper and similar sleepers made by Kids II. Consumer Reports investigated and identified more than a dozen additional deaths and confirmed with Fisher-Price that the company knew of at least 32 fatalities tied to the sleeper. Four days after Consumer Reports published its findings, Fisher-Price recalled 4.7 million Rock ‘n Play Sleepers. Two weeks later, Kids II recalled nearly 700,000 of its inclined sleepers. It has since come to light that at least 73 infant deaths have been associated with inclined sleepers.

Prior to the data release, the CPSC had attempted to do what it could within the constraints of Section 6(b) to alert the public of the risks of inclined sleepers. In May 2018, the agency issued an alert about “infant deaths associated with inclined sleep products.” But with no products identified, there was little public reaction, and business continued as usual for Fisher-Price and other inclined sleeper manufacturers for another year.

Similarly, the CPSC also issued general safety announcements about anchoring furniture to a wall in the years preceding the recall of 29 million IKEA chests and dressers in June 2016 because the dressers did not comply with voluntary standards that required stability testing and had caused death and injury to children. At least five children have died from IKEA MALM dressers that tipped over onto them.

Clearly, the delay caused by Section 6(b) in releasing information about dangerous products has resulted in many tragedies that were fully avoidable.

Daniel J. Mann, a product liability attorney at Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig LLP, said it is critical to public safety that lawmakers act immediately to pass the SHARE Information Act.

“I believe it is vital that the governmental agency charged with product safety, and responsible for protecting the most vulnerable members of our population, release hazard information without delay. It is unacceptable that a self-interested product manufacturer, seeking to avoid the cost of lost sales and the expense of a recall, can prevent the public from learning about a product’s hazards. Too many children have paid the ultimate price with their lives because of the muzzling of the CPSC by Section 6(b). Manufacturers must not be permitted to continue to put profits over safety by keeping the public in the dark about important safety issues,” Mann said.