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ATLA President Ken Suggs Comments on New Consumer Product Safety Commission Proposed Rule Affecting Hazardous Products

(Monday, June 26, 2006 -Washington DC)—Association of Trial Lawyers of America (ATLA) President Ken Suggs today sent the following letter to the Secretary of the Consumer Product Safety Commission (CPSC) commenting on the commission’s proposed rule affecting hazardous products. Today marked the end of the comment period for the proposed rule. ATLA opposes the proposed rule because it could harm the health and safety of consumers.

Office of the Secretary
Consumer Product Safety Commission
4330 East West Highway
Bethesda, Maryland 20814

Re: Substantial Product Hazard Reports

Dear Secretary:

The Association of Trial Lawyers of America (“ATLA”) hereby submits comments in response to the Consumer Product Safety Commission’s (“CPSC”) proposed revisions to its interpretative rules advising manufacturers, distributors, and retailers of consumer products how to comply with the requirements of Section 15(b) of the Consumer Product Safety Act (“hazard reporting rules”). See 71 Fed. Reg. 30350.

ATLA, with 60,000 members in the United States, Canada and abroad, is the world’s largest trial bar. It was established in 1946 to safeguard victims’ rights, strengthen the civil justice system, promote injury prevention, and foster the disclosure of information critical to public health and safety. ATLA applauds the Commission’s goals of improving “guidance, clarity, and transparency” with respect to hazard reporting rules. However, ATLA believes the proposed revisions accomplish none of these goals. Indeed, the proposal, if adopted, would provide less consistent reporting guidance, increasing the likelihood that product defects known to manufacturers, distributors, or retailers will not be disclosed to the Commission and the public. For these reasons, ATLA recommends that the Commission withdraw the proposed changes to the hazard reporting rules.

I. ATLA’s General Concerns Regarding the Proposed Revisions

ATLA has two key concerns with the CPSC’s proposed revisions. First, the proposed revisions do not satisfy the Commission’s purported goals. Second, the documented involvement by associations representing large corporations undermines any positive effects generated from these revisions.

A. Proposed Revisions Do Not Satisfy CPSC’s Goal of Improving Clarity

The Commission’s proposed revisions add the following factors for CPSC Staff to use to evaluate the existence of a defect:

• The obviousness of the risk;

• The adequacy of warnings and instructions to mitigate the risk;

• The role of consumer misuse of the product; and

• The foreseeability of such misuse.[1]

By adding four factors to the definition of “defect,” the CPSC does not clarify corporations’ reporting obligations. The addition of these factors complicates the analysis, making it likely that different companies, faced with the same information, will make different reporting decisions. The proposed revisions will result in unpredictable variation among companies in what they report because they increase the number of factors a reporting entity may consider without specifying the weight to be given to each factor. Rather than provide guidance and clarity to manufacturers, the proposed revisions give them increased latitude to take a greater number of factors into account and to weigh those factors in whatever fashion they chose. The result is likely to be less reporting of defects.

B. Proposed Revisions Do Not Satisfy CPSC’s Goal of Improving Transparency

Likewise, the Commission’s proposed revisions will not improve the transparency of the hazard reporting process. Instead, they will have the opposite effect. The addition of the proposed four factors makes it less likely a manufacturer will identify a “defect” and, therefore, easier to evade the hazard reporting rules. The proposed revisions seem designed to provide a safe haven for manufacturers who do not disclose. The result will be less public awareness of products which might cause harm.

Public disclosure may lead to product liability litigation which, in turn, could result in much needed safety improvements in products and the prevention of additional injuries. See, e.g., Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995) (case spurs company to put warnings on Tylenol after liver-related deaths); “Texas Judge Orders Release of Chrysler Minivan Documents to Public,” Automotive Litigation Reporter, Aug. 6, 1996 (class action lawsuit leads to Chrysler’s redesign of defective minivan door latches responsible for multiple deaths and injuries). Successful outcomes like these may not have occurred if attorneys were unable to bolster their cases with strong evidence based on the CPSC’s product hazard reports.

C. Proposed Revisions are Suspect Given Involvement by Industries Charged with Reporting Defects

The proposed revisions do not add clarity, guidance or transparency to the current reporting rules. Instead, they seem designed to create new opportunities for manufacturers not to report hazard defects to the Commission. Since these changes were suggested by industries responsible for reporting defects, were proposed after consultation with such industries but not consumers, and will benefit these industries, we believe the proposed changes are suspect. They should be withdrawn until the Commission takes the views of all affected stakeholders into account in developing revised reporting guidance.

II. ATLA’s Concerns Regarding Specific Proposed Revisions

ATLA also has concerns with specific changes to the regulations, namely the addition of new Section 1115.8 and the new language added to Section 1115.12.

A. Addition of New Section 1115.8 Creates Safe Harbor

The proposed revisions add a new Section 1115.8, which provides that “compliance with applicable voluntary safety standards may be relevant to the Commission staff’s preliminary determination of whether that product represents a substantial product hazard.”[2] The revisions also note that compliance with a mandatory standard “will be considered by staff in making the determination of whether” the CPSC will institute a product recall.[3] This proposed section is particularly troublesome because it can amount to a safe harbor for corporations. Voluntary standards are commonly established by reporting companies. They often represent the least common denominator of agreement among manufacturers rather than adequate safety standards. It is likely that a product could comply with a voluntary or mandatory safety standard, yet a defect may exist beyond the scope of the standard. The purpose of hazard reporting is to shed light on inadequate voluntary standards rather than to acquiesce in the level of safety they offer. The Commission should not shield manufacturers of defective products from public scrutiny just because the manufacturer complied with an inadequate safety standard it set with other manufacturers.

The potential problems associated with the new Section 1115.8 can be illustrated by looking at recent CPSC recalls. For example, the CPSC issued voluntary recalls of certain cribs, some of which not only complied with mandatory and voluntary standards but also were “certified” by the Juvenile Products Manufacturers’ Association.[4] If the proposed language was adopted a year ago, crib manufacturers may not have reported the hazards that led to the recalls and claimed a safe harbor protection under this section.

B. Language Added to Section 1115.12 is Untrue

The proposed revisions indicate that the CPSC intends to add a sentence to Section 1115.12 stating that the “Commission also recognizes that the risk of injury from a product may decline over time as the number of products being used by consumers decreases.”[5] This statement is untrue. The individual risk to a user from a defective product bears no relationship to the number of products in use. Rather the fewer products in use, the less likely it is that an individual will encounter or be aware of a product risk. It is in these instances that reporting of defects is most important because otherwise hazards may remain unknown to consumers. It also is unclear how this guidance will operate in practice, given that it does not specify who will have the burden of proving how many products are in use and how much longer consumers will continue to use them. For example, there is no indication as to how the CPSC would account for hand-me-down items (like cribs and other infant products) or items purchased from thrift or goodwill shops.

III. Conclusion

ATLA respectfully requests that the CPSC withdraw its proposed revisions to the interpretative rules advising manufacturers, distributors, and retailers how to comply with Section 15(b) of the Consumer Product Safety Act, 15 U.S.C. § 2064(b). The CPSC has not articulated any compelling need for these changes which will lead to reduced hazard reporting and possibly fewer or delayed recalls of defective products. The current “when in doubt, report” approach better achieves the Commission’s goals of achieving clarity and transparency in the hazard reporting process. The use of additional factors to define a “defect” only adds to the confusion and ambiguity to the process and the addition of Section 1115.8 can even amount to a safe harbor protection for corporate wrongdoers.

ATLA appreciates this opportunity to submit comments on the Commission’s proposed changes to its hazard reporting rules.

[1] 71 Fed. Reg. at 30351.

[2] Id. § 1115.8(a) (proposed).

[3] Id. § 1115.8(b) (proposed).

[4] See, e.g., Recent Death Prompts Renewed Search for Simplicity Cribs with Graco Logo, News from CPSC (Feb. 8, 2006); CPSC, Child Craft Industries, Inc. Announce Recall of Cribs, Recall Alert #06-504 (Oct. 18, 2005).

[5] 16 C.F.R. § 1115.12(g)(1)(ii) (proposed).

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As the world's largest trial bar, ATLA promotes justice and fairness for injured persons, defends the constitutional right to trial by jury, and strengthens the civil justice system through education and disclosure of information critical to public health and safety. With 60,000 members worldwide, ATLA provides lawyers with the information and professional assistance they need to serve clients successfully and protect the democratic values of the civil justice system.