Product recalls, especially of imported products, and governments seized the opportunity to ProduCT safeTy reform Global Trends in Consumer General Product Safety Directive (“GPSD”), 3 not yet proposed far-reaching reforms of its 2009 2 ; and, while the European Union has Product Safety Act, first reading January 29, is evaluating Bill C-6, the Canada Consumer Improvement Act of 2008 (“CPSIA”); Canada August 14, 2008, the Consumer Product Safety For instance, the United States enacted, on adopt or propose significant legislative reforms. uct safety was high on the political agenda, skyrocketed throughout the developed world in For the first time in decades, consumer prod- b y P e t e r J . B i e r s t e k e r a n d M a r k R . H a l l up to a presidential election. trade and, at least in the United States, the run- backdrop of increasing skepticism toward free domestic consumers, often children, against a ing actual or perceived safety risks to innocent a perfect political storm—foreign goods pos- “summer of recalls.” 1 The spike in recalls created for example, dubbed the summer of 2007 the Consumer Product Safety Commission (“CPSC”), 2007 and 2008. The acting chairman of the U.S. 10
it is weighing significant reforms of Directives that cover ply with the new actual or proposed requirements, what industry. Do the recent legislative proposals enhance that partnership? 4. Enforcement. Are there trends with respect to enforce- ment, and if so, what do they augur? Second, since businesses should at least start planning for how they can most effectively and efficiently com- practical suggestions might industry wish to consider? HARMONIzATION Increased harmonization of standards would be highly desirable from the perspective of global businesses. It is an explicit goal of the regulators themselves. See , e.g. , “Memorandum of Understanding between the Healthy Environments and Consumer Safety Branch of the Department of Health of Canada and the Consumer efforts were a collaboration between business and specific industries, such as its new Toy Safety Directive, safety requirements: adopted on December 18, 2008. 4 This article explores two broad issues. First, since most consumer products companies have a global reach, it is interesting to compare and contrast different facets of existing and proposed consumer product 1. Harmonization. To what extent do reform proposals 3. Partnership. Historically, consumer product safety serve the goal of increased harmonization of vari- egated consumer product safety standards? 2. Clarity. From a business perspective, increased clar- ity as to what is required, with respect to product fea- tures and performance as well as the procedures that apply to reporting and recalls, would be desirable. Do the various proposals offer clearer guidance? 11
12 allowing the government to compel recalls where there are First, industry reporting obligations are triggered by the tort standards. The problem is compounded in two ways. developed case law such as that which informs common-law may be ambiguous, particularly in the absence of well- Application of these general criteria to specific circumstances a danger to human health or safety.” “reasonable grounds” to believe that “a consumer product is proposes, however, to adopt a U.S.-style general provision supports the conclusion that there has been a violation of embodied in Schedules 1 and 2 to its statute. C-6 § 30(1) Canada relies heavily on specific, relatively clear rules patible with the product’s use. GPSD, Art. 5(3) and Annex 1(2). conditions of use, presents no risk or only minimal risks com- product is defined as one that, under reasonably foreseeable GPSD generally requires all products to be “safe”; a “safe” actual or constructive receipt of information that reasonably these general, ambiguous standards. 15 U.S.C. § 2064(b), 16 Products covered by specific directives in the EU are also mine whether significant potential civil and criminal penalties five years’ imprisonment. 15 U.S.C. §§ 2069 and 2070. See also $15 million, and the maximum criminal penalty includes up to civil penalty for violations in the U.S. has been increased to late these general standards. For example, the maximum authorities as well as the marketing of products that vio- should attach to the failure to timely report to government ment authorities with the benefit of 20/20 hindsight to deter- C.F.R. § 1115.12; C-6 § 14(1); GPSD, Art. 5(3) and Annex 1(2). As Second, these “judgment calls” will be examined by govern- judgment calls about its applicability in specific cases.” very broad and somewhat imprecise terms and requires … Consumer Protection, the reporting obligation “is written in and Commerce, Subcommittee on Commerce, Trade, and the U.S. House of Representatives, Committee on Energy Commission candidly testified on June 6, 2007, before the acting chairman of the U.S. Consumer Product Safety subject to a range of specific, relatively clear standards. The substantial risk of injury to the public” (15 U.S.C. § 2064). 12 total lead standards for the surface coatings and substrates children’s products, even though risk assessments sponsored Likewise, the United States adopted limits on phthalates in derived health standards. attempt to limit exposure to safe levels using toxicologically (EN 71 in the EU; ISO 8124 in most countries) and which are an which are favored throughout most of the developed world of children’s products, eschewing the soluble lead standards The new CPSIA in the United States, for example, adopted stances posed little or no health risk as found in consumer of increased global harmonization. adopted and proposed reforms generally disserve the goal respective standards-related measures”). Nevertheless, the the greatest extent practicable, to make compatible their Products,” June 22, 2005, at 1 (declaring as a purpose “to Regarding Cooperation Related to the Safety of Consumer Product Safety Commission of the United States of America by U.S. government agencies had concluded that the sub- products. 5 And, while the newly adopted quantitative phthalate ing recalls for products possessing a “defect” that creates “a procedures would be preferable to ambiguous ones, particu- however, remain subject to the U.S. catchall standard requir- become mandatory. 6 The vast majority of consumer products, under the CPSIA, the ASTM F963-07 voluntary standards will ucts intended for children aged 12 and under. For example, on them to a significantly greater degree, at least for prod- With respect to safety standards, the CPSIA in the U.S. relies larly when violations can give rise to significant penalties. From the perspective of business, clear safety standards and limits in the U.S. mirror those adopted in the EU and California, CLARITY inaccessible parts that pose no hazard. CPSIA, § 108(a), (b)(1). dards arguably apply to all parts of child-care articles, including Decision 1999/815/EC (7 Dec. 1999). In the U.S., the new stan- mouthed by children aged three and under. Commission care articles, such as infant swings, that are capable of being certain phthalates apply to those portions of toys and child- the standards apply inconsistently. In the EU, the standards for C-6 §§ 46–48, 38–45; GPSD, Arts. 7 and 18(3).
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