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From Products Liability Law Daily, November 13, 2013

CPSC commissioners approve amended voluntary recall proposal

By Joe Bichl

The Consumer Product Safety Commission (CPSC) commissioners voted 3 - 1 to approve a proposal, as amended, that that would change the way in which voluntary recalls and corrective action plans (CAPs) are conducted and would make compliance programs legally binding. (CPSC Public Meeting, November 13, 2013)

Proposed rule. According to the draft proposal, the rule would establish a new subpart D, titled, “Principles and Guidelines for Voluntary Recall Notices,” in Part 1115 of Title 16 of the Code of Federal Regulations and would add a new paragraph to 16 CFR 1115.20. The proposed rule would provide guidelines for voluntary recall notices. It also would include language granting CPSC the power to mandate that certain companies include compliance programs as part of their voluntary CAPs when warranted.

Amendments to rule. Commissioner Robert Adler in today’s public hearing proposed an amendment to the NPR that would make the compliance programs in the CAPs legally binding. Adler stated that companies should be required to stand by their commitment to their CAPs, insisting that making companies legally responsible for their agreements would reduce the chances of companies “slow-walking implementation” of the CAPs. Commissioner Ann Buerkle disagreed, stating that Adler’s amendment was a “momentous shift” by the Commission. She argued that the current process is working “extremely well,” and that making the voluntary recall process legally binding, and ultimately turning it over to the judiciary, would result in slowing the recall process, and “undercutting compliance.” Commissioner Marietta Robinson called the amendment a simple “tweak,” stressing that not every CAP has a compliance plan, and that making compliance legally binding was merely a matter of adding “predictability to the process.” Adler’s amendment passed by a 3 to 1 vote.

Buerkle also proposed an amendment that would remove the word “recall” from the recall notices, saying that the overuse of the word was diluting the seriousness of the message. She also sought to change the notifications requirements of a recall, asking that companies not be required to display recall posters in their businesses. Finally, she suggested that rather than include the “legally binding” language in the NPR, the agency should present it as a question for the regulated community to comment on. Buerkle’s amendment failed by a 3 to 1 vote.

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