Recall Roundup: September
Time 3 Minute Read
Categories: Product Liability

September ushered in a shift in political power at the CPSC with the confirmation of a new commissioner. In June, the U.S. Senate confirmed President Trump’s nomination of Dana Baiocco—a Republican—to the CPSC. Commissioner Baiocco’s appointment created the potential for a 2-2 voting tie if issues presented to the CPSC give rise to voting along party lines. One CPSC vacancy remained for which President Trump nominated Peter Feldman—another Republican—in June to both complete the remainder of former Commissioner Joe Mohorovic’s term, which expires in October 2019, and to serve a full seven-year term starting in October 2019. 

This month, the U.S. Senate confirmed Feldman by a 80-19 vote to complete the remainder of Mohorovic’s term. However, the confirmation vote for Feldman to serve a full seven-year term starting in October 2019 resulted in a narrow and partisan 51-49 vote to confirm. In support of the nomination, Senator John Thune of South Dakota claimed that “Democrats have expressed no objection—no objection—to [Feldman’s] qualifications to be a CPSC Commissioner.” The vote proceeded without any stated objections to Feldman’s qualifications, and with the implication that the only party-line objection was to his concurrent nomination to complete the remainder of a term expiring next year along with the nomination to the full seven-year term on the CPSC. Commissioner Feldman’s appointment creates a Republican majority at the CPSC for the first time since 2006.

Acting CPSC Chairman Buerkle foreshadowed at a high level what changes might result from this political shift last year when she stated that “[r]educing unnecessary regulation burdens is a top priority for me, and I intend to do what I can to accelerate our efforts to reduce regulatory burdens wherever possible.” How that general “reducing regulatory burden” message translates into substantive policy or enforcement changes at the CPSC remains to be seen. If past voting records inform the nature of those changes, we may see the frequency and amount of civil penalties decrease. Chairman Buerkle has opposed civil penalties for violations of the Consumer Product Safety Act’s “remarkably vague” defect reporting requirements. In fact, we have recently seen the frequency of civil penalties decrease, though the average amounts of those civil penalties have been on the rise:

Importantly, there are still three months left in 2018 so those numbers may change. Also, 2018 included a record-breaking $27.25M civil penalty.

With summer coming to a close, the CPSC has released new data about pool safety. Drownings remain the leading cause of unintentional death among preschool-aged children and the second leading cause among children ages five through 14. To combat this problem, the CPSC launched a Pool Safety public education campaign in 2010. Since that time, a study showed that deaths have decreased 17 percent. That downward trend continued this year. In 2017, 163 children drowned in swimming pools or spas. In 2018, 148 children drowned—a drop of nine percent. Although the data is trending in the right direction, there is still plenty of work left to prevent these tragic deaths. As part of this effort, the CPSC this month awarded nearly $1 million under its Pool Safety Grant Program to five state and local governments to help prevent pool drownings and drain entrapments.

Total Recalls: 22

Hazards:  Fire/Burn/Shock (9); Crash (4); Violation of Federal Standard (4); Fall (2); Laceration (1); Choke (1); Injury (1)

Click on the below chart for additional information.

  • Partner

    Kelly practices as a commercial and regulatory litigator on products liability and post M&A disputes and issues and serves as one of the firm’s Deputy General Counsel focusing on law firm ethics, conflicts, and risk management ...


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