CPSC Chairman Kaye gave the keynote address at ICPHSO CPSC Day, providing announcements on some CPSC policy changes and focusing on his priorities for the upcoming year. These include:
Reporting of products sold in the US, Canada, and Mexico
Chairman Kaye announced that CPSC is collaborating regularly with Health Canada and Profeco in Mexico. As part of that collaboration, he said the agencies now will expect a company that reports to one of them to report to all of them if the product is sold in more than one of the jurisdictions.
I am interested to see how this plays out in practice, as the reporting laws and regulations in each country have slightly different triggers. Hopefully, all three will issue some guidance on this.
Pressure to increase civil penalty amounts
Chairman Kaye repeated last year’s priority to seek significantly higher civil penalties in CPSC settlements for failure to report and other violations of the CPSA. Chairman Kaye believes Congress directed CPSC to do this when it increased the civil penalty cap in the Consumer Product Safety Improvement Act. He stated that CPSC is halfway there in pushing the civil penalties up, and he ultimately wants civil penalties in the double digit millions when the facts are there to support a penalty.
Since CPSIA’s enactment, civil penalty amounts have risen dramatically, with each successive settlement seeming to set a new record penalty. Taken in combination with Chairman Kaye’s remarks, I wouldn’t be surprised to see a civil penalty pushing through the $10 million mark soon.
Chairman Kaye said he is working on a process for publicly announcing when CPSC refers an enforcement matter to the Department of Justice. CPSC referral to DOJ reflects an escalation in the matter and likely a breakdown in negotiations.
This would be an important tool for CPSC, providing leverage in a penalty negotiation. A company may be more inclined to accept a CPSC civil penalty rather than risk brand damage from a media campaign about referral to DOJ.
Commissoner approval of certain Corrective Action Plans
Citing Commissioner Robinson’s hard work on the issue, Chairman Kaye announced that effective April 2016, the Commissioners will need to approve voluntary corrective action for product recalls where a death has occurred.
While I understand the idea here, I worry that adding another layer of approval to a process that already can be quite lengthy will delay important recall information getting to consumers as quickly as possible.
Burden reduction for CPSIA compliance
Following on the Commission’s elimination of GCCs for exempt fabrics, Chairman Kaye noted that he is focused on burden reduction, expecting several more rule makings in the near term. He specifically called out phthalates screening for toys and child care articles, which would reduce the costs of compliance with Section 108.
Streamlining Section 15(b) reporting and improving recall effectiveness
Recognizing the problems with the current Section 15(b) reporting system, Chairman Kaye announced that CPSC would be holding a public workshop to work with stakeholders on ways to improve the process.
Similarly, CPSC will hold a public workshop to address recall effectiveness, as Chairman Kaye acknowledged that CPSC’s current CAP requirements requirements may no longer be yielding effective recalls.
As a side note, a running theme of CPSC Day at ICPHSO was that in-store recall posters are not a useful tool for communicating recalls, but are very expensive to deploy.
Single window e-filing
It sounds like the pilot for CPSC’s single window e-filing program is on schedule for launch sometime later this year. Chairman Kaye reported that eight of the nine pilot slots are filled, and CPSC has worked with the other federal agencies involved to resolve implementation issues between them.
The challenge of new technologies
Citing the increase in new technologies being integrated into consumer products – wearable technology, smart home devices, the prospect of 3D printing of consumer products – Chairman Kaye said he wants CPSC, government regulators in other countries, testing labs, and industry to come together to establish principles that will encourage innovation but prevent new technologies from creating new consumer product safety risks.