Skewing the Facts and Misleading the Public

In a recent story (apparently instigated by a former CPSC commissioner whose reappointment hopes were thwarted by the 2016 election), the Washington Post asserts that the Consumer Product Safety Commission’s leadership is not protecting the public.  The Post article skews the facts to present an inaccurate picture to which a response is warranted.  After much “tugging and pulling” the newspaper today agreed to print my Letter to the Editor attempting to correct some of the innuendos in the story.  Here is a link to the letter:

https://www.washingtonpost.com/opinions/the-real-story-with-the-consumer-product-safety-commission-and-that-stroller/2019/04/14/627a800a-5bb6-11e9-98d4-844088d135f2_story.html?utm_term=.80efcd338ddb

The story involves a popular jogging stroller with a quick release wheel feature.  Injuries occurred, not because the quick release malfunctioned, but when the consumers did not properly engage the quick-release.  When the company refused to recall the strollers, arguing that they were not defective, the CPSC brought a lawsuit to force a recall.  In the CPSC complaint, the agency argued that the strollers were defective because some consumers “may not read, may fail to follow or may misunderstand the instructions” on how to use the quick release. Importantly, the agency did not argue that the instructions were inadequate or confusing but instead that some failed to properly follow them and that this made the product defective. Under the CPSC’s theory, the potential for a consumer to misassemble or misuse a product, even with clear instructions and adequate warnings, is enough to render a product defective.  The story discounts the fact that the product also met all applicable safety standards.  If those standards are not adequate, the correct approach is to change the standard, not unilaterally declare products defective. (The three commissioners voting to bring suit did not suggest changing the standard, nor did the CPSC staff.) Injuries associated with consumer products are always very regrettable.  But those injuries, when they come from misuse of a product or failure to follow clear warnings and when the product meets all safety standards, should not, by themselves, necessarily render a product defective.

The story goes on to suggest that, upon assuming the chair, Acting Chairman Ann Marie Buerkle worked to withhold information about the investigation from her fellow commissioners.  That story-line does not comport with my experience as a CPSC commissioner.  All commissioners can meet with staff at any time—my own practice was to meet with the director of compliance on a weekly basis to be briefed about on-going investigations, and that was also the practice of other commissioners.  The staff, the majority of whom are dedicated career employees, do not withhold information from commissioners.  And while politics should not be an issue, it is worth noting that both the director of compliance and the executive director of the agency, two senior staffers who were necessarily involved with the matter, were appointed by an earlier President Obama-nominated chairman.  Finally, it must be remembered that the settlement of the case, which the Post faults, was negotiated by career staff and this was the recommendation put to the commission.

As I stated in my Letter to the Editor, Ann Marie Buerkle is very well qualified to be Chairman of the CPSC.  She is a medical professional (an important skill set no other commissioner has had), an experienced lawyer and a former Member of Congress.  She is the mother of 6 children and the grandmother of many—in other words, a real consumer.  Having served with Ms. Buerkle as a colleague on the Commission, I know that she listens to and carefully considers all arguments and information provided her before making decisions.

The real gravamen of the story is that there are those who do not agree with some of the votes that Acting Chairman Buerkle has made and that disagreement has spurred attacks on her character such as were made in the Post article.  However, policy disagreements should be debated at the policy level and those disagreements should not then be used to sully the reputation of a dedicated public servant.

 

 

 

 

 

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Just in Time for Thanksgiving: Britax Settlement Signals Common-Sense Thinking at CPSC

 

At this time of year, we celebrate blessings large and small. For product sellers, consumers, and others who are interested in both product safety and the administrative process, the new make-up of the CPSC is one of those blessings worth celebrating. The agency has reassessed its approach to its mission of protecting consumers. It is allocating its scare resources on addressing defective and non-compliant products that actually can hurt consumers rather than trying to push the legal envelop with expansive theories that enhance the agency’s power to dictate consumer choice.

Let me give you an example.  The CPSC has now announced that it is settling the administrative case that it brought against Britax Child Safety Inc. earlier this year. Among other products, Britax makes jogging strollers with a front wheel quick release function which is very popular with consumers.  The CPSC alleged that the strollers were defective because some consumers “may not read, may fail to follow or may misunderstand the instructions” on how to use the quick release mechanism and, as a result, the front wheel could detach during use.  Note that the agency did not allege that the instructions were inadequate or confusing but rather that some consumers did not properly follow them and, as a result, suffered injury when the wheel detached.  The CPSC was especially concerned that if the quick release was not properly engaged, the jogging stroller could still operate with no clue to the user of the problem until the wheel fell off.

This settlement is noteworthy for several reasons. First, the case presented a very expansive interpretation of what is “reasonably foreseeable consumer misuse.”  The concept is addressed in the CPSC’s own regulations in only a cursory manor.  The regulations note that inadequate instructions that lead to consumer misuse of a product, resulting in injury, can be a product defect.  However, that is not the situation in the Britax case, at least as it is described in the agency complaint.  The agency did not allege that the instructions were confusing or inadequate, only that some consumers might not follow them.

The role of consumer misuse and the foreseeability of such misuse is also a consideration when assessing whether a risk of injury renders a product defective.  In other words, in assessing the utility of the product verses injury risks that may be presented, anticipating how consumers could misuse a product should be part of the analysis. However, the regulations cannot be read to require that every misuse must be anticipated as part of the product design process.  Nor can they be read to mean that the fact that consumers may ignore clear instructions renders a product defective.

It is significant that the stroller met CPSC safety standards applicable to this product, including the quick release mechanism. Given this and the scant support in the regulations, the case, as brought, suggests that the Commissioners wished to push the definition of consumer misuse to the point that product makers must be the guarantors of the safety of the products they sell regardless of circumstances.  The circumstances of this case, as brought, suggest that if there is the potential for a consumer to assemble a product improperly, even with adequate instructions and warnings, then that product can be considered defective.  Such a result would have a profound impact on today’s marketplace. Given all this, it is wise that the Commission, with new Commissioners taking another look, now has decided to settle the case.

In addition, the settlement is noteworthy for other reasons. The settlement does not acknowledge that a defect exists or that a recall is being done.  Instead it states that the company, among other things, will undertake an information campaign to try to educate customers on the proper use of the quick release function including a video with incentives being offered to promote viewing.  This is a departure from past commission practice insisting on calling every negotiated remedy a recall even if it was not. (See the Lumber Liquidators “Recall to Test” for one example.)

Because no recall is taking place, the product can continue to be sold on the secondary market.  Had the company agreed to call this a recall, the Consumer Product Safety Act would penalize a seller of a product recalled by the manufacturer.  Certainly, this is good news for consumers who wish to buy this product used and who are able to follow instructions on the proper use of the quick release feature.

More broadly, this settlement offers an opportunity for the CPSC, safety professionals and others with a stake in advancing product safety to begin a more thoughtful and productive conversation about reasonably foreseeable consumer misuse of products.  The Britax case, as brought, pushed the definition of consumer misuse to a point of meaninglessness—it would mean whatever a majority of commissioners decided on any given day.  Putting some better-understood bounds around the term would provide helpful clarity. And that would turn a turkey of a decision to sue into something we could all be thankful for.