Former CPSC Chairwoman Says Proposal Would Kill Fast Track Recall Program
A proposal by the Consumer Product Safety Commission to set new requirements for voluntary recalls could undermine a program that quickly gets defective product off the market, said former CPSC Chairwoman Ann Brown in a letter to CPSC and several Congressmen dated May 30. By prohibiting disclaimers from companies initiating recalls and making voluntary corrective action plans legally binding, the November 2013 proposed rule (see 13112028) may make CPSC’s “fast track” program impossible, said Brown in the letter, which was posted by the blog Consumer Product Matters.
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More than half of all product safety recalls are currently conducted through the fast track program, which allows for recalls to proceed without a determination from CPSC that a product is unsafe, said Brown. But the program requires flexibility in order to get recalls started quickly and the ability for companies to make a disclaimer that the product does not present a substantial safety hazard gives companies an incentive to come forward and use the program, she said. Making corrective action plans legally binding would delay a recall “weeks or even months due to haggling over legalities,” said Brown. Under these circumstances, the fast track procedure would be “rendered impossible,” she said.
By barring companies from making disclaimers, CPSC would create a disincentive for companies to come forward at all, said Brown. “It is my understanding that virtually every firm that reports under the CPSC mandatory reporting requirement and requests to participate in a fast track recall, asserts that their product does not present a substantial product hazard, but nonetheless they wish to conduct a recall,” said Brown. “If reporting firms are not allowed to make this disclaimer, they have no incentive to participate in the fast track program,” she said.
That’s because not making the disclaimer could be perceived in product liability litigation as admitting that the product is a substantial product safety hazard. “If so, reporting firms might just as well report to CPSC, not offer to conduct a recall, and take the chance that the CPSC staff might conclude their product is not a substantial product hazard and that no recall is necessary,” said Brown. “If this occurs, recalls would be delayed. CPSC would be required to use substantial technical resources to evaluate products so that the staff can determine whether to make a preliminary determination of hazard, and consumers are left unprotected potentially for many months.”