Recap: Retail Product Safety at ICPHSO

CPSC Leadership Speaks

A highlight of CPSC Day, in his keynote address, Acting CPSC Chairman Bob Adler discussed some immediate priorities for the agency for the upcoming year, which will be key in making CPSC a more properly functioning agency. These priorities include increasing the budget for the agency, dedicating more time and effort to compliance and enforcement, supporting legislative changes, and increasing diversity. Chairman Adler explained that while having one of the broadest, if not the broadest, jurisdictions of any federal health and safety agency, the CPSC has been plagued by incremental budgeting and unfunded mandates from Congress.

Despite these challenges, Adler stated that in the coming year, the CPSC will place an increased focus on using the full force of the Agency’s compliance enforcement tools including civil penalties and administrative litigation. Adler reiterated his concerns with Section 6(b) of the Consumer Product Safety Act (CPSA), in addition to discussing some other pending and new regulatory initiatives that retailers should expect to see in the upcoming year. Additionally, Chairman Adler stressed the importance of diversity – not only in making sure that CPSC employees are representative of the people the Agency serves, but also ensuring that the Agency takes into consideration vulnerable populations and socio-economic status when looking at issues.

Finally, Chairman Adler announced that he will be retiring at the end of his term as CPSC Commissioner in October 2021.

What to Expect from the CPSC under the Biden Administration and Democratic-controlled Senate

Legal experts from Mintz Levin discussed the current make-up of the CPSC, as well as anticipated changes and actions the new administration is going to take. The Mintz team also outlined key steps for regulated communities to prepare for the changes ahead including:

• Review all internal compliance plans – make sure they are feasible and being consistently applied.
• Perform an annual internal safety audit and correct any deficiencies.
• Take stock of pending problematic safety issues with products, making sure you have not missed any largescale trends reporting product issues.

Updates from CPSC Staff

Kicking off the CPSC staff led sessions, CPSC Executive Director, Mary Boyle, assured attendees that despite the challenges over the past year, the CPSC is still holding strong and carrying out its mission - working at the ports to prevent harmful products from entering the country, testing products, and conducting investigations and recalls. Boyle also announced CPSC staffing updates including now Acting General Counsel Jen Sultan, and the new head of the Congressional Affairs Office, Carla McGarvey. Rounding out her session, Boyle looked forward to the new year, highlighting priorities relating to compliance, hazard reduction, and imports.

• CPSC Office of Resource Management and Office of Communications -  Joe Martyak, Director of Communications, Johnathan Midgett, Consumer Ombudsman, Phil Bermel, Fast Track Program Supervisor, & Shelby Mathis, Small Business Ombudsman, gave a three-part presentation on Dynamic Communications focusing on their FY2021 priorities; the benefits of consumer participation and available online resources to help facilitate consumer engagement with CPSC rulemaking; and the upcoming improvements being made to the Fast Track Reporting Form on saferproducts.gov. Key takeaways include:
  • Fast Track System Upgrades
    • Two-part submissions - Initial Report (to meet Section 15(b) reporting obligations) and Additional Info (required for fast-track cases).
    • Opportunity to review content and provide additional comments before submission.
    • Mobile user friendly and streamlined process.
    • Added functionality.
      • Updated timeline to show where reporters are in the submission process.
      • Added help buttons in different sections to assist and show what information is needed.
      • Guardrail checkpoint to stop firms from submitting in the Fast-Track portal, who have not stopped the sale of the reported item.
      • Partial pre-populated information based on submissions, eliminating duplicative data entry for users.
      • Attachments are now easier to submit - Product photos are now required and depending on the selected remedy, the user will be prompted to supply only what is required for that remedy.
    • Auto-generated emails & reminders
  • FY2021 Office of Communication Priorities
    • Innovation – AnchorIt! Campaign & Recall Emails
    • Increase Representation – More diversity in safety education assets & Spanish language content enhancements.
    • Saferproducts.gov and CPSC.gov Redesign – Mobile friendly interface, easier navigation, and goal to increase number of consumers who report unsafe products through CPSC’s Saferproducts.gov website.
  • Consumer Ombudsman Updates – increasing consumer outreach and educational materials.
• Office of Compliance and Field Operations - Director Rob Kaye led a session discussion on the structure of the Compliance Office as well as key FY 2021 priorities. Highlights include a discussion of reporting obligations and the CPSC use of civil penalties as an enforcement tool. Kaye repeated the Agency’s long-standing motto, “When in doubt, report” and emphasized that by doing so companies can insulate themselves from “failure to timely report” violations. Kaye expects that the CPSC will continue to devote significant resources to enforcement actions, including civil penalties.
• CPSC General Counsel Office – Jen Sultan, Acting General Counsel, highlighted that one of their main priorities was ensuring a smooth transition during the change in Administration and Agency leadership, as well as collaborating and providing legal support for other offices’ priorities. Sultan also gave a broad overview of other functions of the General Counsel Office, including providing legal support for rulemakings and matters referred to DOJ and defensive litigation.
• Office of Import Surveillance – Jim Joholske, Director, highlighted four priorities. Priority one is the Port Surveillance Legislation, which includes co-locating CPSC staff with CBP and aims to maximize CPSC’s presence at ports to better identify high risk shipments and increase in-person examinations. The second priority is drafting a report to Congress which details a long-term vision for the CPSC’s Import Surveillance Program, addressing the risks associated with e-commerce. Third is the moving forward with the beta phase of the e-filing project, which will allow CPSC to electronically collect certain data related to certificates of compliance. Finally, the fourth priority is the ongoing deployment, development, and functionality of online systems, which will help facilitate communications with CBP through electronic messaging and electronic transmission of forms and requests for information.
• Office of Hazard Identification and Reduction – Duane Boniface, Assistant Executive Director, covered the different areas including the data driven approach to allow nationally representative statistical estimates for consumer product injuries; the work being done to strengthen the Agency’s analytic capabilities and artificial intelligence capabilities; the core and vital activities being done to support voluntary standards allowing the CPSC to expand its reach through key stakeholders and expand safety in 78 different areas over the past year; the mandatory standards and important rulemakings including infant sleep products and crib bumpers; and the work being done to strengthen information and education campaign, leveraging existing research and analysis.

Retail-related ICPHSO Presentation Highlights

• Testing Comparison US-EU - RILA CPC Steering Committee member, Jay Howell, Senior Director of Product Safety and Compliance, Walmart participated in a panel discussion comparing US and EU products safety testing as well as product safety challenges on the global market.
• Pioneering the Path to Successful Use of Sustainable Materials - RILA Consumer Products Committee Strategic Partner, Catherine Sheehy, UL’s Global Lead of Sustainability Partnerships participated in a panel discussing strategies for addressing a triumvirate of performance issues, including quality, safety, and sustainability, as well as the issues related to design, testing, and stability of products made with sustainable materials in comparison to the traditional resins.
• Cannabis-Derived Products, Successfully Riding the Wave of Emerging Science and Regulation - RILA’s Senior Director, Regulatory Affairs & Compliance, Susan Kirsch, moderated a panel that surveyed the current legal status of the various cannabis-derived products in different jurisdictions, summarized the science behind potential health claims and adverse effects of CBD and related chemicals, as well as discuss steps in which manufacturers and retailers can take to better protect their consumers.
• Mitigating CPSC Enforcement Risks – Crowell & Moring, Consumer Products Committee Strategic Sponsor, held a session focused on what steps retailers can take to lessen the impact of CPSC enforcement risks.

For more information on consumer product-related topics and RILA’s Consumer Product Committee, contact Susan Kirsch, Senior Director, Regulatory Affairs & Compliance at  susan.kirsch@RILA.org or Luisa Lobo, Coordinator Legal & Regulatory Affairs at luisa.lobo@rila.org.
 

Tags

• Ensuring a Safe, Sustainable Future
• Keeping Communities Safe
• Legal Affairs & Compliance
• Product Safety