Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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FDA Seeks to Phase Out Synthetic Color Additives

Client Alert: Jury Returns Verdict in “Manufactured in the USA” False Advertising Case

ICPHSO 2025: CPSC at ICPHSO

ICPHSO 2025: State Regulation in Response to Trump’s Push for Federal Deregulation

Everyone Please Stand: Supreme Court to Consider Standing Requirements for Class Actions, With the Potential to Resolve Long-standing Multi-circuit Split.

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This week, President Trump announced that he intends to nominate Nancy Beck as Chair and Commissioner of the Consumer Product Safety Commission (CPSC). The five-person CPSC has been short a member since the end of September 2019, when former Acting Chair <a href="https://classdismissed.mofo.com/consumer-products/nomination-of-a-new-chairman-at-the-cpsc/">Ann Marie Buerkle</a> stepped down and then-Vice-Chair <a href="https://classdismissed.mofo.com/consumer-products/outnumbered-but-in-charge-democrat-commissioner-robert-adler-elected-to-vice-chair-of-cpsc/">Robert Adler</a> assumed the role of Acting Chair. Dr. Beck is currently at the Office of Chemical Safety and Pollution Prevention of the Environmental Protection Agency (EPA). She spent nearly 10 years at the Office of Management and Budget under the Clinton, Bush, and Obama administrations. Dr. Beck, who holds a Ph.D. in Environmental Health, would be the only scientist among her potential future colleagues, all of whom are lawyers. She would also break the 2-2 political stalemate, tipping the balance of the CPSC to Republicans. Before that can happen, however, the Senate must confirm Dr. Beck’s forthcoming nomination, which may be more challenging in an election year.

Fertility Center Litigation

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Lethal Injection Matters – Major Pharmaceutical Company

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In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

Is This Seat Open? Nancy Beck Tapped to Chair CPSC

This week, President Trump announced that he intends to nominate Nancy Beck as Chair and Commissioner of the Consumer Product Safety Commission (CPSC). The five

Is This Seat Open? Nancy Beck Tapped to Chair CPSC

This week, Acting Chairman Ann Marie Buerkle <a href="https://cpsc.gov/about-cpsc/chairman/ann-marie-buerkle/statements/statement-acting-chairman-ann-marie-buerkle">withdrew</a> her <a href="https://classdismissed.mofo.com/cpsc/buerkle-poised-to-take-her-seat/">nomination</a> to serve as Chairman of the U.S. Consumer Product Safety Commission (CPSC). She will wrap up her tenure as Acting Chairman, a <a href="https://classdismissed.mofo.com/consumer-products/same-enforcement-trend-new-cpsc-leadership/">position she has held</a> since February 2017, on September 30, and will finish her CPSC term on October 27. As we <a href="https://classdismissed.mofo.com/consumer-products/nomination-of-a-new-chairman-at-the-cpsc/">previously reported</a>, Buerkle has guided the CPSC in a more corporate-friendly position, and her 2019 priorities included the Internet of Things, CPSC technology upgrades, and traditional product safety initiatives, such as furniture tipover safety. The White House has yet to indicate whether Republican Commissioner Dana Baiocco or Peter Feldman will be tapped to fill the Chairman role, or if the person selected to fill Buerkle’s CPSC seat will also get the nod for Chairman. You can find more of MoFo’s Class Dismissed articles about Buerkle <a href="https://classdismissed.mofo.com/?s=buerkle">here</a>.

Change Is in the Air: Buerkle Withdraws Her Nomination to Chair the CPSC

This week, Acting Chairman Ann Marie Buerkle withdrew her nomination to serve as Chairman of the U.S. Consumer Product Safety Commission (CPSC). She will wrap u

Change Is in the Air: Buerkle Withdraws Her Nomination to Chair the CPSC

Consumer products companies are familiar with the reporting requirement under Section 15(b) of the Consumer Product Safety Act (the Act), but when does that obligation kick in for statute of limitations purposes?  The Seventh Circuit considered this question when it heard arguments on when a claim first accrues for reporting violations under the Act in USA v. Spectrum Brands, Inc., 18-1785 (7th Cir.).  Spectrum raised the issue in an effort to undo part of the $1.9 million in civil penalties it faces for not “immediately” reporting a product hazard under Section 15(b) of the Act.  The Seventh Circuit’s comments suggest that the penalty will hold, even though Spectrum’s duty to report a product hazard arose six years before the Consumer Product Safety Commission (the Commission) initiated enforcement.  Consumer products companies should be aware that the statute of limitations likely does not begin to run until a company satisfies its reporting obligation by submitting a report to the Consumer Product Safety Commission.Case BackgroundThis case arose out of a line of coffeemakers that defendant Spectrum acquired when it merged with Applica Consumer Products, Inc. in 2014.  Applica began selling a line of coffeemakers in 2008.  By May 2009, Applica had received 60 reports of broken handles and four reports of burns.  According to the Commission, these reports triggered Applica’s obligation to “immediately” report a product hazard to the Commission within 24 hours.  16 C.F.R. § 1115.14(e).  In April 2012, Applica submitted a Section 15(b) report to the Commission.  A voluntary recall followed.  Applica inadvertently sold an additional 641 units after recalling the coffeemakers.  In light of the merger, Spectrum was the responsible party when the Commission and Department of Justice teamed up and filed an enforcement action in 2015.As we <a href="https://classdismissed.mofo.com/consumer-products/court-decision-cpsc-enforcement-action/">previously</a> <a href="https://classdismissed.mofo.com/consumer-products/fortune-favors-the-quick-to-report-judge-slaps-spectrum-brands-with-1-9-million-penalty-in-dojcpsc-tag-team-enforcement-action/">reported</a>, a federal district court in Wisconsin ruled against Spectrum on the government’s failure-to-report claim, ordering civil penalties of $1.9 million and an injunction for violations of the Act.[1]  The court assessed $1,115,000 for selling recalled products and $821,675 for violating the reporting requirement.  The court also ordered Spectrum to maintain “sufficient systems, programs, and internal controls to ensure compliance” with the Act.[2]  The court later modified the injunction to require that an independent consultant review Spectrum’s compliance procedures and propose improvements.On Appeal—When the Statute of Limitations First Accrues for Reporting ViolationsSpectrum paid the fine for selling recalled products but challenged the penalty for selling recalled products.[3]  Spectrum argued the government’s actions were too little, too late because the statute of limitations on the reporting violation ran before the government filed suit in 2015.Claims under the Act are subject to a general statute of limitations regulating government enforcement actions.  Specifically, 28 U.S.C. § 2462 provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.”  Thus, the government must bring an action for civil penalties within five years of when the claim “first accrued.”Therein lies the issue—when does a claim for a reporting violation first accrue?  The government and the district court characterized the failure to report as a “continuing violation” that accrues anew each day the violation occurs, and the five-year statute of limitations commences only when the company actually reports to the Commission.  Under this interpretation, the clock did not start to tick until April 2012.  Therefore, the government argued it beat the clock by nearly two years when it filed suit in June 2015.Spectrum disagreed.  It argued instead that the claim first accrued as soon as the government could go after Applica for a reporting violation.  As a result, when the court concluded that Applica possessed information triggering its reporting obligation in May 2009, it also fired the starting gun on the statute of limitations.  As the timeline below demonstrates, these two accrual dates make all the difference for Spectrum.The Seventh Circuit seemed unconvinced by Spectrum’s argument.[4]  The panel consisted of Chief Judge Diane P. Wood and Judges Daniel A. Manion and Ilana Diamond Rovner.  Chief Judge Wood and Judge Rovner focused on the argument that a violation of Section 15(b) is not complete until a company reports the product hazard to the Commission or has “actual knowledge” of the risk.  Thus, Spectrum’s delay in reporting was an “ongoing event” until it notified the Commission in April 2012.  In response to Spectrum’s argument that the May 2009 reporting date triggered the statute of limitations, Chief Judge Wood explained that May 2009 served as the “trigger for the duty, but the duty itself is a reporting duty” that continues until a report is filed.  Otherwise, companies could “brazen it out” and avoid the reporting scheme and any negative consequences.As a practical matter, the filing date of a Section 15(b) report is unambiguous.  In contrast, the date a reporting obligation is first triggered is not so well defined.  No magic number of consumer complaints flips the switch on a company’s duty to report.  As Judge Rovner noted, adopting Spectrum’s view would lead to “pitched battles over how soon a company was first obliged to make a report.”  She expressed concern that companies receiving consumer complaints may remain quiet in the hope of running out the clock on the statute of limitations before the government became aware of the hazard.  According to Judge Rovner, such a system would be “directly at odds” with the Act’s goal of consumer safety and “cannot possibly be what Congress intended.”The panel took the case under advisement but, based on their statements at oral argument, we expect the district court’s order to be affirmed.Key TakeawaysConsumer products companies will want to keep the Seventh Circuit’s comments in mind when assessing whether a product hazard exists and considering what steps to take in response.  Before merging with another company or acquiring a product line, consumer products companies should evaluate the target company’s complaint and reporting history to assess the company’s compliance with reporting requirements.[1] United States v. Spectrum Brands, Inc., No. 15-CV-371-WMC, 2017 WL 4339677 (W.D. Wis. Sept. 29, 2017).[2] Id. at *9.[3] On appeal, Spectrum also seeks to undo the permanent injunction imposed by the district court.[4] Listen to oral argument in USA v. Spectrum Brands, Inc., 18-1785 (7th Cir.), <a href="http://media.ca7.uscourts.gov/oralArguments/oar.jsp?caseyear=18&casenumber=1785&listCase=List+case%28s%29">here</a>.

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Ready, Set, Report! Seventh Circuit Considers When a Claim First Accrues for Failing to Report a Product Hazard

Ready, Set, Report!  Seventh Circuit Considers When a Claim First Accrues for Failing to Report a Product Hazard

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Consumer products companies are familiar with the reporting requirement under Section 15(b) of the Consumer Product Safety Act (the Act), but when does that obl

At a recent product safety conference, Ann Marie Buerkle, Acting Chair of the U.S. Consumer Product Safety Commission (CPSC), announced CPSC’s priorities for 2019. These include technology—both for consumers and within the agency—as well as window coverings and furniture tipover. Buerkle surprised the audience with a stern warning that any clothing storage not complying with ASTM’s F2057-17 standard will be deemed to have a defect that could pose a substantial product hazard.Buerkle’s Address at the Annual ICPHSO MeetingBuerkle addressed the annual meeting of the International Consumer Product Health & Safety Organization (ICPHSO), a nonprofit organization that brings together diverse stakeholders. Attendees included manufacturers, retailers, standards organizations, service providers, government agencies, and consumer advocates. This year, the meeting took place in Washington, D.C., to facilitate attendance by regulators, particularly on the day known as “CPSC Day.” Fittingly, CPSC Day opened with Buerkle’s address outlining CPSC’s priorities.IoTBuerkle opened with a topic at the top of everyone’s minds—the Internet of Things (IoT). CPSC recognizes that IoT is here to stay. Although the agency recognizes the urgency of moving quickly in this area to keep up with technology, CPSC appears to be still evaluating possible IoT policy initiatives. Buerkle reminded the audience about CPSC’s past activity in this space, including its January 2017 report, “<a href="https://www.cpsc.gov/content/potential-hazards-associated-with-emerging-and-future-technologies">Potential Hazards Associated with Emerging and Future Technologies</a>,” and its May 2018 hearings on this topic. She also previewed processes CPSC plans to put in place to address emerging technologies, such as reassigning staff to dedicate their efforts solely on IoT, creating an interagency working group, coordinating with the National Cybersecurity Center of Excellence on IoT and Home Safety, and collaborating with voluntary standards organizations.Technology at CPSCIn addition to addressing technology advances outside the agency, Buerkle announced some technology upgrades within the agency. She spoke of the <a href="https://www.cpsc.gov/content/cpsc-releases-new-recall-app">recall app</a> that CPSC recently rolled out. She proudly congratulated the developers of CPSC’s <a href="https://www.cpsc.gov/Newsroom/News-Releases/2019/robot-reboot-cpsc-launches-upgraded-regulatory-robot-tool-to-help-small-business-community">regulatory robot 2.0</a>, which can help assess the regulatory framework that applies to a particular product. And she welcomed the coming changes to CPSC’s SaferProducts.gov website, born out of the Consumer Product Safety Improvement Act of 2008 and now due for a refresh. Though not addressed by Buerkle, other technology advances discussed at the conference included upgrades to the FOIA process; consumer product safety lawyers breathed a sigh of relief on hearing that CPSC will finally send FOIA correspondence electronically and de-duplicate the often voluminous documents responsive to FOIA requests.Window CoveringsNext, Buerkle turned to more traditional product safety initiatives. First, she discussed the updated ANSI window covering standard released last year, which requires stock window coverings to be cordless or have inaccessible cords.Furniture Tipover SafetyFinally, Buerkle addressed furniture tipover safety, which she noted has been one of her top priorities as acting chair. In a surprising announcement, she told the audience that CPSC had that day sent a <a href="https://www.cpsc.gov/s3fs-public/Clothing%20Storage%20Unit_Letter%20to%20Manufacturers_Importers_Distributors_and_Retailers_2.27.19.pdf">letter</a> to furniture manufacturers about tipover safety. The letter stated that any clothing storage units not compliant with ASTM F2057-17 would be regarded as having a defect that could present a substantial product hazard under Section 15(b) of the Consumer Product Safety Act. Though not explicit, her message was clear: even though CPSC has not gone through the formal rulemaking process, it wants noncompliant furniture products off the market, and companies that fail to report noncompliant units run the risk of swift investigation and penalties for failure to report.Our Product Liability and Counseling attorneys provide guidance on how CPSC’s priorities have shifted over time and how those shifting priorities affect our clients and their products. We will continue to monitor and report on any notable updates from CPSC and how they might impact the consumer product safety landscape.

CPSC Acting Chair Buerkle’s Priorities Include IoT and Furniture Safety

At a recent product safety conference, Ann Marie Buerkle, Acting Chair of the U.S. Consumer Product Safety Commission (CPSC), announced CPSC’s priorities for 20

CPSC Acting Chair Buerkle’s Priorities Include IoT and Furniture Safety

Safety standards for booster seats will no longer be a polite suggestion. On June 26, 2018, the U.S. Consumer Product Safety Commission (CPSC) voted 4-0 to approve a new mandatory safety standard for children’s booster seats. 83 Fed. Reg. 30837. The new rule applies to booster seats used in homes and in restaurants, not the booster seats used in cars.The new rule incorporates ASTM F2640‑‑18, the voluntary standard currently applicable to booster seats. Approved and published in April 2018, the current version sets forth safety guidelines for booster seats that are entirely voluntary. The CPSC’s vote changes that. Once, effective, the standard for booster seats will be a “final mandatory consumer product safety standard.” Manufacturers and distributors in the United States will have to follow the new standards or risk being out of compliance.Need for StandardsThose with kids know exactly what a booster seat is—and how hard it can be to keep a child in one. It’s a “juvenile chair” for kids up to five years old, placed on an adult chair to raise the child up to standard dining table height. In contrast to traditional high chairs, booster seats allow children to eat at the table with the rest of the family, for better or for worse. The seats also help keep children safe and sitting upright while dining.While booster seats bring convenience to parents, improper manufacturing or use can be dangerous. From January 2008 to October 2017, CPSC reported a total of 912 incidents related to booster seats—this includes 152 nonfatal and two fatal injuries. According to CPSC, injuries to the head are the most common hazard and typically happen when children fall out of booster seats. Other dangers include restraint and attachment problems, as well as lock and latch failures.The New StandardsRecognizing these potential dangers, CPSC took action to address these observations. The new mandatory standard comes from CPSC’s mandate under Section 104(b) of the Consumer Product Safety Improvement Act of 2008, which requires CPSC to issue consumer product safety standards for durable infant and toddler products. CPSC’s new federal safety rule for booster seats incorporates ASTM International’s most recent voluntary standard, Standard Consumer Safety Specification for Booster Seats (ASTM F2460‑18).The new regulation includes information as well as design requirements. Keeping parents informed is critical to safe use of booster seats. For example, all booster seat packaging must show the minimum dimensions of the adult chair needed for the booster seat to fit. The booster seats themselves must carry warnings, too, such as a reminder to securely fasten booster seats to adult chairs before use, or reminders to stop children from pushing away from the table while seated. Booster seats must also have an active means of attaching to an adult chair to prevent them, and any children, from falling off the chair.Booster seat companies have time to come into compliance with the new regulations. Although the final rule was published on July 2, 2018, it does not go into effect for eighteen months. This means that products manufactured or imported on or after January 2, 2020 will have to comply. Products that don’t comply may be reportable under Section 15(b) of the Consumer Product Safety Act, and failure to report could lead to penalties. Therefore, manufacturers and distributors of booster seats should take note of this new standard and take steps over the next 18 months to ensure their products comply.*Co-author  Hannah Yim is a summer associate in our San Diego office.

CPSC Gives Kids’ Meals A Boost—New Mandatory Standard For Booster Seats

Safety standards for booster seats will no longer be a polite suggestion. On June 26, 2018, the U.S. Consumer Product Safety Commission (CPSC) voted 4-0 to appr

CPSC Gives Kids’ Meals A Boost—New Mandatory Standard For Booster Seats

On June 4th, President Trump nominated Peter Feldman to fill the fifth seat on the U.S. Consumer Product Safety Commission (CPSC) and serve out the remainder of prior Commissioner Joe Mohorovic’s vacated seven-year term ending in October 2019. If confirmed, Mr. Feldman’s nomination may be the lynchpin for a new era of CPSC regulatory strategy.Since 2011, Mr. Feldman has served as Senior Counsel to the U.S. Senate Committee on Commerce, Science, and Transportation. That Committee oversees the consumer-protection efforts of agencies such as the Federal Trade Commission (FTC), the National Highway Traffic Safety Administration (NHTSA), and CPSC. Before that, Mr. Feldman worked with the National Republican Congressional Committee and on Senator John McCain’s 2008 presidential campaign.Following the previously reported <a href="https://classdismissed.mofo.com/consumer-products/baiocco-confirmed-as-cpsc-commissioner/">confirmation of Commissioner Dana Baiocco</a>, Mr. Feldman’s confirmation would tip the partisan balance of the CPSC to a 3-2 Republican majority. That would usher in the first Republican-controlled CPSC since 2006 — a radical change from the Commission’s 3-1 Democrat majority that existed before Commissioner Baiocco’s replacement of prior Commissioner and Obama appointee Marietta Robinson.This could mean a sea change for CPSC’s partisan regulatory decisions, which include promulgating safety standards, working with companies on voluntary recalls, and imposing monetary penalties. Earlier this year, departing Commissioner Robinson vocalized that a Trump-appointed majority would “neuter the agency,” suggesting that these members would put a pro-business agenda ahead of consumer safety. Ms. Robinson noted that the shift in the Commission’s makeup could embolden companies to ignore or stall compliance with CPSC directives.Across the aisle, Acting Chairman Buerkle advocates for <a href="https://classdismissed.mofo.com/consumer-products/nomination-of-a-new-chairman-at-the-cpsc/">cooperation with companies</a> and voluntary regulations as a more effective and easier path to ensure consumer safety. Chairman Buerkle, who has been criticized for her hesitation to vote for recalls, heavy fines, and tougher safety standards, opined that the Commission became “too emotionally reactive” under the Obama administration. Chairman Buerkle was herself originally nominated by President Obama in 2013 and recently re nominated by President Trump.What might this new nomination mean for manufacturers? On the one hand, a Republican CPSC may be more amenable to cooperative relationships with companies, which could require manufacturers to spend more of their own legal resources on collaborative compliance up-front. On the other hand, if the industry abuses the goodwill of a deregulation-friendly Commission, the pendulum could swing back toward stricter regulation.Mr. Feldman’s nomination, as well as Acting Chairman Buerkle’s nomination for permanent Chairman and for another term, awaits approval. However, this is yet another clear signal from the Trump administration of the pro-industry shifts intended for CPSC.*Co-author  Alexander Najarian is a summer associate in our San Diego office.

New Nomination Could Mean Partisan Tiebreaker for CPSC

On June 4th, President Trump nominated Peter Feldman to fill the fifth seat on the U.S. Consumer Product Safety Commission (CPSC) and serve out the remainder of

New Nomination Could Mean Partisan Tiebreaker for CPSC

After months of anticipation, the U.S. Senate finally confirmed Dana Baiocco as a Commissioner of the U.S. Consumer Product Safety Commission (CPSC) on May 22, 2018. President Trump first <a href="https://classdismissed.mofo.com/cpsc/trump-to-nominate-new-commissioner-to-cpsc/">nominated Commissioner Baiocco</a> on September 21, 2017. As a former Jones Day partner in the firm’s Business & Tort Litigation Practice, Commissioner Baiocco joins CPSC with experience in both consumer product safety litigation and regulation.Had former Commissioner Joseph Mohorovic completed his term and not departed early from the Commission last October, CPSC would currently sit with a 3‑2 Republican majority. Instead, Commissioner Baiocco will join an evenly split 2‑2 Commission. Commissioner Baiocco joins President Trump’s appointee Acting Chairman Ann Buerkle and two President Obama‑appointees, Commissioner Elliot Kaye and Commissioner Robert Adler.Without a party majority, CPSC will likely be limited to non‑polarizing rulemaking and regulatory activity. For example, as previously <a href="https://classdismissed.mofo.com/consumer-products/cpsc-heating-up-before-new-commissioner-appointed-approves-a-petition-for-rulemaking-to-ban-an-entire-class-of-flame-retardants/">reported</a>, the Commissioners have been known to vote along party lines with regard to pro‑regulatory activity. In 2017, the three Democratic appointees voted to adopt a petition for rulemaking that sought to prohibit a flame retardant from certain consumer products, and the two Republican appointees voted against.Commissioner Baiocco’s seven‑year term will run through October of 2024, as she replaces former Commissioner Marietta Robinson, whose term expired in October of 2017.

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Baiocco Confirmed as CPSC Commissioner

Nevada Enacts CCPA-Style Opt-Out Right for Consumers—but Similarities Are Few

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After months of anticipation, the U.S. Senate finally confirmed Dana Baiocco as a Commissioner of the U.S. Consumer Product Safety Commission (CPSC) on May 22, 

Baiocco Confirmed as CPSC Commissioner

The Consumer Product Safety Commission (CPSC) announced today that on May 16, 2018, it will hold a public hearing on “potential safety issues and hazards associated with internet-connected consumer products.”<a href="#_ftn1" name="_ftnref1">[1]</a>  The Commission will hear testimony from interested stakeholders on potential safety hazards created by network-connected devices, the types of hazards arising from their use or foreseeable misuse, current standards development, industry best practices, and the proper role of CPSC in addressing potential safety hazards with IoT devices.CPSC’s goal with this hearing is to gather information from regulators, standards organizations, and business and consumer advocates, to “inform future Commission risk management work.” How CPSC interprets the information received at this hearing could significantly shape the predictably unpredictable regulatory environment that IoT-focused consumer companies are asked to navigate.Regulatory Scrutiny Follows the IoT Explosion CPSC’s intensified focus on the Internet of Things (IoT) is no surprise to industry followers given the recent explosion of IoT devices in the consumer products space. And companies can expect the focus to continue because the IoT train isn’t slowing down.  By some estimates, the global IoT market is projected in the next five years to grow from roughly $170 billion to $561 billion—a compound growth rate of 26.9%.<a href="#_ftn2" name="_ftnref2">[2]</a>CPSC’s Focus Will Be on IoT Devices’ Potential Physical HazardsWhile recognizing this trend and its “promise of many benefits for consumers,” CPSC is still cautious about the ways “internet connectivity is also capable of introducing a potential for harm (a hazard) where none existed before.” Still, CPSC’s focus remains where it has always been: on product hazards that cause physical injury or property damage, including “[f]ire, burn, shock, tripping or falling, laceration, contusion, and chemical exposure.”As a framework for analyzing IoT-related risks, CPSC has grouped product safety challenges posed by IoT products into two broad categories:<ol><li>Hazards Inherent in the Product Design. These hazards specifically include the “high-risk remote operation” of devices or network-enabled control of product features. One example is a “cooktop that might be remotely controlled” and could start a fire.</li><li>Hazards Arising Post-Connection.  CPSC calls these “incidents of hazardization,” meaning situations in which the product was safe when the consumer obtained it, but later became hazardous when “connected to a network through malicious, incorrect, or careless changes to operational code.”  One example is a “robotic vacuum cleaner that suddenly begins operating much faster than expected” upon connection to the network or after experiencing a network interference. Another would be the loss of a safety function due to a glitch in the network connection. For example, an integrated home security system could be set by default to deactivate if the system failed to download a software update properly, disabling the smoke alarms without the consumer’s knowledge. CPSC acknowledges that managing these kinds of hazards “may lead industry and regulators to examine policies related to code encryption and security, authorized access to programming, and defensive measures (and countermeasures) for device software.” But CPSC is quick to emphasize that “[t]his is a non-traditional area of product safety activity for the consumer product industry and for the CPSC.”</li></ol>Data Security and Privacy Issues Won’t Be Considered (Yet)Although hot-button privacy and data security risks unique to IoT devices are at the forefront of public debate, CPSC plans to steer clear of these issues at its upcoming hearing. As we pointed out in the wake of the Google Home Mini privacy glitch revelation, privacy groups have recently called on CPSC to scoop up data security and privacy issues into its jurisdiction, which has traditionally focused only on physical injury and property damage.<a href="#_ftn3" name="_ftnref3">[3]</a>  Today’s notice suggests those calls will go unanswered—at least in the short run.  CPSC reiterated that the agency will stick to its traditional wheelhouse of physical safety hazards and “will not address personal data security or privacy implications of IoT devices.”Although CPSC has declined to address these privacy issues now, it is acutely aware of these risks. As the IoT industry grows and new information about IoT-related product risks comes to light, we may yet see CPSC chart new jurisdictional territory in its quest to preserve consumer safety.Hearing Details<ul><li>Date/Time: May 16, 2018, 10:00 a.m.</li><li>Place: Hearing Room, 4th Floor of the Bethesda Towers Building, 4330 East-West Highway, Bethesda, MD 20814</li><li>Simultaneous Webcast: The hearing will also be available through a webcast, but viewers will not be able to interact with the panels and presenters through the webcast.</li><li>Oral Presentations: Requests to make oral presentations and the written text of any oral presentations must be received by the Office of the Secretary no later than 5:00 pm on May 2, 2018.</li><li>Written Comments: Written comments may be submitted (identified by Docket No. CPSC-2018-0007) <ul><li>Electronically – through the Federal eRulemaking Portal at <a href="http://www.regulations.gov/">www.regulations.gov</a>, or</li><li>By Mail/Hand Delivery/Courier – to the Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 504-7923. CPSC will accept written comments through June 15, 2018.</li></ul></li></ul><a href="#_ftnref1" name="_ftn1">[1]</a> The Internet of Things and Consumer Product Hazards, 83 Fed. Reg. 13,122 (March 27, 2018), available at <a href="https://www.federalregister.gov/documents/2018/03/27/2018-06067/the-internet-of-things-and-consumer-product-hazards">https://www.federalregister.gov/documents/2018/03/27/2018-06067/the-internet-of-things-and-consumer-product-hazards</a>.<a href="#_ftnref2" name="_ftn2">[2]</a> See <a href="https://www.reportlinker.com/p03782621/Internet-of-Things-Market-by-Software-Solution-Platform-Service-Application-Domain-and-Region-Global-Forecast-to.html">https://www.reportlinker.com/p03782621/Internet-of-Things-Market-by-Software-Solution-Platform-Service-Application-Domain-and-Region-Global-Forecast-to.html</a>.<a href="#_ftnref3" name="_ftn3">[3]</a> Erin Bosman, Julie Park, and Benjamin Kagel, Connected Devices Bring New Product Liability Challenges, Class Dismissed (Jan. 10, 2018),  <a href="https://classdismissed.mofo.com/consumer-products/connected-devices-bring-new-product-liability-challenges/">https://classdismissed.mofo.com/consumer-products/connected-devices-bring-new-product-liability-challenges/</a>.

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CPSC Will Sharpen Its Focus on IoT in Upcoming Public Hearing About Internet-Connected Devices

CPSC Will Sharpen Its Focus on IoT in Upcoming Public Hearing About Internet-Connected Devices

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The Consumer Product Safety Commission (CPSC) announced today that on May 16, 2018, it will hold a public hearing on “potential safety issues and hazards associ

With the start of the new year, President Trump again nominated Republican Ann Marie Buerkle to chair the U.S. Consumer Product Safety Commission (CPSC). Her expected confirmation will continue to push the CPSC in a more corporate-friendly direction that focuses on consensus building rather than additional regulation.At the same time, another Republican, Dana Baiocco, is expected to be confirmed to take Democratic Commissioner Marietta S. Robinson’s seat. Both Buerkle and Robinson have antiregulatory reputations, leading to criticism from some consumer advocacy groups, even though both have decades of experience in consumer product safety regulation. What does this mean for the industry? Given their backgrounds, the new combination of commissioners will likely line up with President Trump’s antiregulatory agenda and result in a cooperative approach with industry. But beyond this, business as usual probably won’t change drastically at the CPSC.New Balance of Commissioners at the CPSCMs. Buerkle was named acting chairman of the CPSC early in the Trump administration. As many expected, President Trump then nominated her to be permanent chairman of the Commission in July of last year. After a contentious confirmation hearing in September, the Senate committee voted along party lines to advance her nomination to the Senate floor. The full Senate vote, however, never happened and her name—along with about 100 other pending appointments—was returned to the president as required following the end of a congressional session. Ms. Buerkle and the other returned nominees did not have the unanimous consent often given by the Senate to waive that rule. Ms. Buerkle recently cleared the committee process again and her eventual Senate confirmation appears assured.Ms. Buerkle is no stranger to the CPSC. Appointed by President Obama, Ms. Buerkle has already served four years as a commissioner. Because federal statute prevents filling more than three seats with the same party, President Obama gave Mitch McConnell the choice for the open seat. Senator McConnell tapped Ms. Buerkle as a safe ideological ally.At the time, Ms. Buerkle was looking for a way to return to public service. She had recently departed Congress after serving one term as a member of the congressional delegation from New York. She won election as a conservative candidate in the Tea Party wave of 2010 and lost a rematch in 2012. Though she accepted the seat on the CPSC in 2013, she declared her intent to run again for Congress. That never happened, as she found a home at the CPSC. In 2017, Ms. Buerkle described her service as acting chairman of the CPSC to be a culmination of many parts of her life working in advocacy. Before entering politics, Ms. Buerkle was a nurse, then a medical malpractice attorney, and finally a New York assistant attorney general.Ms. Baiocco, the newly nominated commissioner, is an experienced product safety attorney who brings a different background to the CPSC. Her nomination followed a similar path in the Senate last year to that of Ms. Buerkle, and she was also re-nominated and cleared the Senate committee earlier this month. Ms. Baiocco made her name in product-liability corporate defense, representing clients in lawsuits that also drew attention from the CPSC. In one notable case, Ms. Baiocco represented Yamaha in litigation regarding the rollovers of their Rhino off-road vehicles. Following these suits, the CPSC helped Yamaha implement a recall program for the vehicles.Ms. Baiocco’s consumer-products interests run in the family. Her husband—also a lawyer—has defended IKEA in the recent dresser tip-over suits. Notably, IKEA’s dressers have also been a focus of CPSC action. Anticipating scrutiny over potential conflicts, Ms. Baiocco has promised to recuse herself from any matter in which she or her husband have a direct financial interest or that will have a direct or predictable effect on her husband’s firm.How Will Buerkle’s Confirmation Change the CPSC?Because the CPSC’s mandate is to protect the public from “unreasonable risks of injury” in consumer products, its leader has a substantial ability to influence how this mandate is carried out.Much of the CPSC’s discretion can be seen in its day-to-day actions. For instance, the CPSC’s compliance work is often carried out through voluntary recalls in conjunction with product manufacturers, distributors, and retailers. New leadership may decline to push for some recalls based on a different perception of what types of incidents rise to the level of seriousness to merit such action. In addition, even CPSC’s mandatory enforcement authority comes with a degree of discretion. As many of our readers will <a href="https://classdismissed.mofo.com/consumer-products/cpsc-magnet-set-safety-standards/">recall</a>, former Chairman Elliot Kaye generated controversy with unprecedented enforcement efforts against high-powered magnet ball sets. We expect this type of discretionary enforcement to continue to decline under Ms. Buerkle.Another major role of the Commission is to set product safety standards, which it accomplishes in one of two ways: (1) rulemaking or (2) coordination with industries for voluntary standards. Again, the Commission has significant discretion, and Ms. Buerkle prefers consensus voluntary standards. She made this patently clear during the nomination process, refusing to back down from this goal in her first confirmation hearing in September. For example, Senator Bill Nelson (D-Fla.) questioned Ms. Buerkle about her vote against a rule to improve the safety of portable electric generators in favor of allowing the industry to voluntarily improve safety standards on its own. Senator Nelson argued that manufacturers would not follow voluntary standards to improve safety. In response, Ms. Buerkle disagreed and insisted she could raise safety standards faster and more effectively through the industry consensus aspect of voluntary standards.Ms. Buerkle’s nomination may also prompt change to the CPSC’s public database for consumer safety complaints. As part of the 2008 Consumer Product Safety Improvement Act, Congress mandated that the CPSC create a public portal and a publicly accessible, searchable database of consumer product incident reports. Manufacturers are given 10 days in which to respond to the complaints before their publication, but CPSC will not withhold comments unless the manufacturer can demonstrate with indisputable facts or documentation that the report is materially inaccurate. Under the current system, the CPSC does not itself verify the accuracy of the complaint. Manufacturers have complained that the database makes it too easy to upload false information. In support of manufacturers, Ms. Buerkle voted to defund the database during her term in Congress. As chairman, she will not have the power to scrap the database, but she may have the power to influence how information is reported and verified in the database.How Will This Affect Consumer Product Manufacturers?We expect the CPSC will defer more to industry under Ms. Buerkle’s leadership, but significant changes are unlikely for two reasons. First, much of the regulatory function of the CPSC is statutorily outlined. In comparison to some other federal agencies, the CPSC often has little discretion under its governing statutes. For instance, in the Children’s Gasoline Burn Prevention Act of 2008, Congress passed a law requiring that closures on portable gasoline containers conform to specific child-resistance standards. As a result, these standards were incorporated into the CPSC’s consumer product safety rules without a need for rulemaking from the Commission. Because many of its governing statutes impose specific product safety standards such as these, or leave little room for interpretation, a change in leadership at the CPSC will not change most existing consumer product rules.Second, Ms. Buerkle and Ms. Baiocco are dedicated to product safety, even if they approach the issue with a different philosophy than former Chairman Kaye. Ms. Buerkle has described herself as an “across-the-board conservative,” and as such has publicly declared her dedication to reducing government spending and the costs of regulations to American businesses. But Ms. Buerkle’s goals, despite consumer advocate groups’ protests, are not incompatible with the CPSC’s mission. Ms. Buerkle has shown a spirit of public service in her careers as a nurse, a lawyer, and a public servant. Her advocacy of product safety should be expected to continue, though with stronger coordination and cooperation with industry.Similarly, though Ms. Baiocco will presumably also keep industry needs in mind, she should likewise be trusted to protect consumers’ interests. Ms. Baiocco’s nomination, given her involvement in defending corporations in high-profile consumer products lawsuits, was undoubtedly intended as a pro-industry signal. Yet her career of corporate advocacy gives her a strong foundation in industry risks and potential abuses in product safety. She can be expected to effectively weigh consumer interests against those of manufacturers, distributors, and retailers when evaluating product safety.Although it represents a shift at the CPSC, the changing leadership is certainly not the downfall of consumer product safety, as some consumer advocacy groups have predicted. Increased cooperation with industry, including a strong preference for voluntary standards over regulation, can be an effective strategy for reaching consensus and maximizing industry compliance with consumer product safety standards.