Pandemic Relief Law Seeks to Protect Against Unsafe Toys (And Other Products) Entering the U.S. in the Time of COVID-19

Tucked deep within the nearly 6,000-page pandemic relief bill that was signed into law during the waning days of the 116th Congress is a provision that addresses a steep drop in safety inspections for toys and other consumer products entering the U.S. during the COVID-19 pandemic.

According to an investigative report published by USA Today, the Consumer Product Safety Commission (CPSC) pulled its safety inspectors from U.S. ports for nearly six months, from mid-March 2020 through September 2020, due to the health threat posed by the pandemic. The agency additionally shut down a government testing laboratory.

The CPSC, which is tasked to prevent dangerous products from entering the U.S. marketplace, lowered its guard as shiploads of toys were entering the country for the holiday season. This lapse in safety inspections occurred with no public warning and without full disclosure to Congress. Moreover, USA Today reports that as recently as early December of 2020, inspectors still were not working in five of the 18 ports they normally patrol.

A Plummet in Product Safety Screenings

According to USA Today’s analysis of internal CPSC data, between October 1, 2018 and September 30, 2019 (FY 2019), port inspectors averaged 3,251 screenings of imported goods per month. That number dropped by half in FY 2020 when the CPSC sidelined its inspectors. Specifically, in February 2020, just before the pandemic hit, there were 3,401 reported inspections. In March 2020 (when inspectors were sidelined mid-month) there were 1,247 reported inspections. By April, the number dropped to 345. By June, it plummeted to 178, and then fell again to 167 in July. Inspections hit rock-bottom in August at just 47. In September, the number ticked up to 906.

The USA Today investigation also found that from April to September 2020, the CPSC issued one-fourth of the violations it had issued during the same period a year earlier. Violations for poisonous lead levels in toys, one of the most frequent violations, dropped from a monthly average of 50 to zero this past spring. Toys with small parts that can choke young children also saw a dramatic drop-off in identified safety violations, according to USA Today’s reporting.

Products including trucks, dolls, stuffed animals, picture books, markers, puzzles, building blocks, bikes and wagons have arrived on store shelves without the usual security checks for lead, chemicals or choking hazards, according to a consumer alert issued by the Michigan attorney general. Target, Dollar Tree, Walgreens, Amazon and UPS are among the major retailers, distributors and shipping companies that brought these products into the U.S. from overseas. Although these companies are quick to point out that they perform their own safety inspections, USA Today’s investigation found that the CPSC flagged violations more than once in the past seven years for items imported by each of them. Moreover, nearly four in five recalls involve imported products, according to the CPSC.

Trying to Put the Safety ‘Genie’ Back in the Bottle

While the new COVID relief law is best known for its $600 stimulus checks and other economic assistance for those hit hardest by the pandemic, at the end of its nearly 6,000 pages is a provision that attempts to correct the extraordinary lapse in inspections that was hidden from public view.

The new law directs the CPSC to add staff at ports with the goal of screening no fewer than 90 percent of products entering the U.S. that are risk-scored. It also directs the CPSC to provide a detailed report within six months to Congress assessing the risk to consumers associated with the reduced number of inspections and to identify steps to “mitigate those risks, such as recalls, inspections of product inventory, consumer warnings, and other appropriate measures.”

Edward S. Goldis, a product liability attorney and partner at Feldman Shepherd, said that while he is pleased that lawmakers have acted to protect consumers, the impact of the lapse in inspections will resonate through American households for years to come. “We must assume, based on historical data, that dangerous products that will harm children entered the country during this period of time when inspections weren’t being conducted.” He pointed out that toys and other children’s products are often passed down from child-to-child and between families. In many cases, consumers do not find out that a product is unsafe until an unthinkable tragedy happens, Goldis said. And while recalls and warnings can help save lives and prevent serious injuries, it is exceedingly difficult to “put the genie back into the bottle” after unsafe products reach stores and homes.

The product liability team at Feldman Shepherd, which includes co-founding partner Alan M. Feldman and partners Daniel J. Mann and Edward S. Goldis, has achieved substantial recoveries on behalf of individuals injured by dangerous products, with a particular focus on products intended for children and infants. The team has pursued manufacturers of unsafe dressers, inclined infant sleepers, infant baby slings and magnetic toy sets, among other products, and has worked with the CPSC and other safety advocates to help achieve recalls.