ICPHSO 2011 Annual Meeting & Training Symposium

ABA Law Seminar: Analysis of Recall Law and Procedures

Presented by

Georgia C. Ravitz, Esq.

Arent Fox LLP

Washington, DC | New York, NY | Los Angeles, CA

February 25, 2011

Section 6(b) of CPSA

Section 6(b) of the Consumer Product Safety Act sets forth restrictions on public disclosure of information Applies primarily to any information from which the public

can ascertain the identity of the manufacturer or private labeler of a product

This includes information appearing in a recall press release based on Section 15 reports, as well as information provided in response to a FOIA request

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Section 6(b) Disclosures

Before disclosing information to public:

CPSC must take reasonable steps to assure that information is accurate, disclosure is fair in the circumstances, and disclosure is reasonably related to effectuating the purposes of CPSC statutes. (see 16 CFR 1101.1)

CPSC must provide at least 15-day advance notice to companies (reduced from 30 days as a result of CPSIA amendments), and an opportunity to comment prior to disclosure of information

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Exception to 15-Day Notice

CPSC can “find” that the public health and safety requires a shorter advance notice period than the15-day period required under Section 6(b)(1)

Notice of findings can be given in writing or orally directly to manufacturer or private labeler

– No longer needs to be published in Federal Register

Basis for findings include:– The need to warn public quickly if individuals may be in danger

from a product or a potential hazard

– The need to correct product safety information released from third parties that may (i) mischaracterize statements made by CPSC about a product, or (ii) attribute statements to CPSC that were not made by CPSC

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EXAMPLES

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Food for Thought

Is the Section 6(b) exception being used “creatively" as a coercive tool?

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Legislative Intent

“This new provision greatly enhances the Commission’s ability to protect the public by granting the agency authority to overcome statutory obstacles that have hampered past efforts to inform the public about hazardous products.”

“The Committee expects the CPSC to use this new disclosure authority fully to protect the public from health and safety hazards.”

“The Committee expects the Commission to exercise this new disclosure authority and utilize these new resources in a manner that aggressively serves the well-being of consumers.”

– Report No. 110-501 (Dec. 19, 2007) of the House Committee on Energy and Commerce addressing HR 4040 and public disclosure amendments to Section 6(b)

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“A new Commission that has new powers – we are not afraid to use them. If you resist our efforts to recall children’s products, be forewarned, this new Commission stands ready to be creative in the use of our enforcement authorities.” Quoted from keynote address by CPSC Chairman Inez

Tenenbaum at Consumer Federation of America, March 11, 2010.

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CPSC Senate Oversight Hearing

“…the regulated community has expressed alarm over the threatened use…of unilateral press releases ‘to warn the public’ about alleged dangers in specific products as a way to coerce ‘voluntary’ recalls.”

– Testimony of Richard M. Woldenberg, Chairman, Learning Resources, Inc., before the Subcommittee on Consumer Protection, Product Safety and Insurance of the Senate Committee on Commerce, Science and Transportation at hearing on December 2, 2010.

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6(b)(5) Exception: Cases of Bona Fide Disagreement

Are ‘threats’ being made where facts are not clear or the immediacy of protecting “public health and safety” may not exist, and Commission wants to avoid an expensive and drawn out court-ordered mandatory recall?

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