Welcome to Dorsey's Consumer Products Law blog. This blog provides visitors with informative, up-to-date and easy-to-understand commentary on consumer products matters. Our purpose is to help manufacturers, importers, warehousers, retailers, e-tailers, consumers, and lenders better understand the legal issues impacting the consumer products industry.
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April 06, 2009 | Posted by
Nena Street
National Public Radio examined the science behind the phthalate ban contained in the CPSIA and concluded that “public concern, not science, prompts the plastics ban.” The April 1, 2009, broadcast and accompanying article include an interview with Dr. Marilyn Wind, Deputy Associate Executive Director for Health Sciences at CPSC. Dr. Wind explained to NPR that the CPSC opposed the phthalate ban because “there was not a risk of injury to children.”
After outlining Dr. Wind’s summary of extensive scientific studies, which led both the CPSC and the Food and Drug Administration to conclude the ban was not necessary, NPR reviewed the scientific claims made by politicians with the opposite message. For instance, Sen. Diane Feinstein (D-CA) is quoted as saying the ban was needed because phthalates had been “linked to serious reproductive defects.”
This article represents a fine example of the politicization of science. Having read the legislative history, I know that Feinstein and other phthalate ban advocates relied on studies conducted by likeminded scientists. I also know that those studies have been called into question by phthalate manufacturers and other stakeholders interested in using phthalates. Likewise, studies financed by phthalate manufacturers or their associations have been called into question by phthalate ban advocates. And when we have this kind of he-said-she-said debate it looks a whole lot like politics and not like science. Unlike politics, however, scientific experiments can be depoliticized.
I am not a scientist, but I do understand a bit about scientific method. In a debate such as this, we need a disinterested third party to design a method of inquiry based on gathering observable, empirical and measurable evidence subject to specific principles of reasoning. The significance of the resulting data is open to interpretation, but data should not be in dispute. I believe that the CPSC is currently trying to fill this role, and the tone of NPR’s story supports that conclusion.
I welcome rigorous legislative and public debate about science and health policy, but debate must be anchored in good science. Federal agencies, such as the CPSC, are well-positioned to serve the necessary role of disinterested third party. Remember that most federal agency scientists, such as Dr. Wind, are career hires, not political appointees. Their allegiance does not change with political winds. Legislators, at the very least, should afford staff scientists at least some measure of deference. And if legislators feel that agency staff has a political agenda, they should work to reform the agency, not find a political ally to do their science.
April 10, 2009 | Posted by
Mark Kaster
Proposed Bill - FDA to Regulate Tobacco
The U.S. House of Representatives passed the Family Smoking Prevention and Tobacco Control Act (FSPTCA) on April 2, 2009. The bill now moves on to the Senate for consideration.
The FSPTCA would amend current FDA laws to provide for FDA regulation of advertising, marketing, and manufacturing of tobacco and tobacco products. The FSPTCA would subject tobacco products to FDA labeling and would require companies to disclose the ingredients in tobacco products.
The FSPTCA gives FDA the authority to reduce the level of nicotine in tobacco products, but FDA may not require the overall removal of nicotine or impose a ban on an entire class of tobacco products.
The FSPTCA would require the reinstatement of a 1996 FDA rule to reducing underage smoking and would ban outdoor advertising of tobacco within 1,000 feet of schools and playgrounds. The bill would also ban tobacco-brand sponsorships of sports and entertainment events, and would restrict vending machines to adult-only facilities.
A copy of the bill can be found at http://energycommerce.house.gov/Press_111/20090304/hr1256.pdf.)
May 07, 2009 | Posted by
Mark Kaster
CPSIA – TRACKING LABEL REQUIREMENTS
The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires manufacturers to add tracking labels on all children's products (products designed or intended primarily for children 12 and under). Section 103 of the law provides for permanent, distinguishing marks on the product and its packaging, to the extent practicable that will enable the ultimate purchaser to ascertain the manufacturer or private labeler, location and date of production and tracking information such as batch, run number or other identifying characteristics. This tracking information is broader than uniform product coding (UPC) numbers, although UPC codes may include cohort information that allows manufacturers to track a product.
PRACTICE POINTER: According to the CPSC, a label stating only the date of distribution, production date and trademark information would not satisfy the tracking label requirements. Such a label would lack information identifying the manufacturer or private labeler, the place of production and cohort information. Also note, the agency believes that hang tags and adhesive labels are not permanent and thus do not comply with the law.
The agency has not yet adopted any rules on the tracking label requirement, but there has been talk that the agency may prescribe label print size or other requirements. The agency issued a request for comments on the tracking label provisions of the CPSIA in a Federal Register announcement dated February 26, 2009. Comments are due by April 27, 2009. See, Tracking Labels
More to follow once the agency responds to comments or adopts regulations. However, the law makes clear that even if the agency does not establish tracking label rules, the tracking label requirements of the CPSIA still go into effect for all children's products effective August 14, 2009.
April 10, 2009 | Posted by
Mark Kaster
NEW TO OUR BLOG - A FEATURE WE CALL OUR QUESTION OF THE WEEK
We will be putting up a consumer product safety question each week or so. The answers will be forthcoming the following week along with a new question. Check back frequently and let us know if you have a question.
We recently posed Question #4:
What are the new whistleblower provisions of the CPSIA and how might they affect my company?
Response:
The Consumer Product Safety Improvement Act (CPSIA) at Section 219 establishes new whistleblower protections for employees of manufacturers, private labelers, distributors, or retailers of consumer products. An employee is protected from termination, discharge or any other form of retaliation resulting from the employee’s provision to the employer, the Federal Government, or a State Attorney General of information relating to any violation of statutes or regulations enforced by the CPSC.
The whistleblower provision of the CPSIA prohibits an employer from discharging or otherwise discriminating against an employee because the employee: (1) provides information relating to a violation of the CPSIA or any act enforced by the CPSC to the employer, the Federal Government, or the State Attorney general; (2) testifies or assists in a proceeding concerning a violation of the CPSIA or any act enforced by the Commission; or (3) refuses to participate in an activity, policy, practice, or assigned task that the employee reasonably believes violates the CPSIA or any act enforced by the Commission.
The whistleblower protections do not extend to government employees.
An employee who believes he or she has suffered an adverse employment action as a result of the employee’s provision of information relating to a violation of statutes or regulations enforced by the CPSC may file a complaint with the Secretary of the U.S. Department of Labor. A complaint setting forth the facts and identifying the responsible party must be filed with the Secretary no later than 180 days after the date on which the violation occurs.
The Secretary has an elaborate set of procedures for the complainant to file a complaint and for the employer to respond. To prevail in a CPSC whistleblower action, an employee must prove by a preponderance of the evidence that the protected activity was a contributing factor in the adverse employment action.
If the Secretary of Labor finds a violation by the employer, the remedies may include: (1) abatement of the violation; : (2) reinstatement; (3) back pay; (4) compensatory damages; and (5) attorney fees and litigation costs, including expert witness fees reasonably incurred. If the Secretary finds that the complaint was frivolous or brought in bad faith, the Secretary may award the employer reasonable attorney’s fees not exceeding $1,000. The law provides a judicial mechanism for review and enforcement of the parties’ rights.
The new CPSIA whistleblower provisions became effective on August 14, 2008.
Now for this weeks new Question of the Week #5
Does the CPSC regulate products that contain nanotechnology?
Check back with us next week for our response. Also, let us know what you think of our blog and questions you may have about consumer product safety. MRK
April 27, 2009 | Posted by
Nena Street
At last, the CPSC is exercising its own judgment in the CPSIA rulemaking process! Ten days ago, CPSC Commissioners Nancy Nord and Thomas Moore directed CPSC staff to draft a Federal Register notice containing a limited stay of enforcement of the CPSIA the lead content ban as applied to youth motorized recreational vehicles.
In written statements Commissioners Nord and Moore explain that a stay of enforcement is necessary to accomplish the goal of the CPSIA, which was "to protect children from unnecessary contact with leaded components in these vehicles", while also balancing "the need to protect these children from the potential for physical injury related to riding inappropriate adult-sized vehicles, or riding vehicles either in need of repair or less structurally sound that the ones currently on the market."
Commissioner Moore directed staff to include the following elements in the stay of enforcement:
(1) relieve makers, sellers and distributors of youth motorized vehicles currently on the market and those which enter the market during the stay;
(2) allow those vehicles to be repaired, sold, traded and otherwise used as they are now;
(3) allow the sale, distribution and installation of replacement parts that are comparable in lead levels to the old part being replaced until a safety alternative is available; and
(4) adopt a timeline of reasonable expectations for industry compliance.
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