Hunton Retail Law Resource

This month, the US Senate Committee on Commerce, Science, and Transportation released its investigative report on the CPSC’s data handling breaches from the spring. In April, the CPSC issued notices to multiple manufacturers explaining that “nonpublic manufacturer information” was released to the public without complying with Section 6(b) of the Consumer Product Safety Act. Section 6(b) prohibits the CPSC from disclosing information reported by product manufacturers without complying with the procedures for and restrictions on the commission’s public disclosure of such information. Section 6(b) aims to incentivize manufacturers to provide more safety information without fear of public backlash. The Senate committee’s report is troubling. It found that the CPSC made “improper disclosures to 29 unique entities” that “contained information on approximately 10,900 unique manufacturers, as well as street addresses, ages, and genders of approximately 30,000 consumers.” The Senate committee reviewed “hundreds of documents and emails and conducted multiple interviews” to conclude that the CPSC’s violations of Section 6(b) “were due to a lack of training, ineffective management, and poor information technology implementation.” The report cited several examples, such as that CPSC employees had “little to no Section 6(b) training” and were provided with “three different software applications to access and process relevant data without the necessary training on how to use these often confusing and idiosyncratic systems.” The Senate committee ended with a list of recommendations for the CPSC to remedy these problems and avoid future data-handling breaches.

This month the CPSC issued rare guidance urging consumers not to use inclined infant sleep products. The CPSC received reports of 1,108 incidents, including 72 infant deaths and several product recalls, related to infant inclined sleep products between January 2005 and June 2019. The CPSC hired an independent expert to conduct testing and evaluate the design of inclined sleep products. The expert measured infants’ muscle movements and oxygen saturation in various products and positions. According to the study, babies move differently in an inclined sleeper as compared to a firm, flat surface, suggesting that when infants end up on their stomachs, they can exhaust themselves and ultimately suffocate while trying to reposition. The expert then concluded that none of the inclined sleep products her team tested are safe for infant sleep with inclined seat backs of more than 10 degrees. Accordingly, the CPSC urged consumers not to use inclined infant sleep products and instead to place infants on a firm, flat surface for sleeping.

The CPSC also issued a warning about liquid nicotine commonly used in e-cigarettes. The CPSC is charged with administering the Child Nicotine Poisoning Prevention Act, which requires any nicotine provided in a liquid nicotine container to meet certain special child-resistant packaging requirements. With the recent increased media attention on the dangers associated with e-cigarette use, it is unsurprising that the CPSC would chime in to warn consumers that liquid nicotine lacking child-resistant packaging can be deadly for children and pets who may swallow it or absorb it through skin contact. The CPSC encourages consumers who have purchased liquid nicotine in bottles that lack child-resistant packaging to report it to the CPSC.

Total Recalls: 18

Hazards:  Fire/Burn/Shock (6); Fall (3); Injury (3); Laceration (2); Tip-Over (2); Violation of Federal Standard (1); Choke (1)