May 15, 2013
Updated July 31, 2013
THE CPSC'S LATEST ATTEMPTS TO EXPAND ITS
ENFORCEMENT AUTHORITY
To Our Clients and Friends:
In the wake of 2007--the “year of the recall”--Congress passed the Consumer Product Safety
Improvement Act (“CPSIA”), Pub. L. No. 110-314, in order to strengthen the Consumer Product
Safety Commission (“CPSC”) and provide it with greater enforcement authority and new enforcement
tools.[i] Since that time, the CPSC has aggressively enforced its governing statute and regulations,
repeatedly pushing the limits of its expanded authority.
Rare Earth Magnets Lawsuits
The latest example of the CPSC’s new aggressive approach is the series of lawsuits it has filed against
manufacturers of rare earth magnets, like Buckyballs and Zen Magnets.
These sets of novelty magnet spheres are a “toy” for adults. In the past, the manufacturer of
Buckyballs had cooperated with the CPSC in an effort to ensure that the product’s warning labels
adequately apprised consumers of the need to keep the magnets away from children in order to prevent
the types of injuries that could result if children swallowed the magnets. In fact, the manufacturer
required its resellers not to sell Buckyballs in the children’s toys section of their stores, and the
manufacturer repeatedly enforced that requirement by terminating resellers’ contracts. In 2012, the
CPSC abruptly abandoned this approach, despite the fact that more than a billion such magnets had
already been sold and there were only 24 reported incidents of children swallowing
Buckyballs.[ii] The CPSC initiated a mandatory recall--a relatively rare measure--and even though the
administrative law judge has yet to rule on the merits of the recall,[iii] the manufacturer is already out
of business.[iv]
After filing suit against Buckyballs’ manufacturer, the CPSC instituted involuntary recall proceedings
against Zen Magnets LLC, the maker of another rare earth magnet “toy” for adults.[v] The CPSC filed
this complaint notwithstanding the fact that Zen Magnets LLC had no record of injuries.[vi] This
appears to be the first time that the CPSC has instituted involuntary recall proceedings against a
company for a product with no record of injury.[vii] Shortly after filing suit against Zen Magnets
LLC, the CPSC also instituted involuntary recall proceedings against Star Networks--the manufacturer
of Magnicube Magnet Balls and Magnet Cubes--based on its general concerns with these types of
magnets.[viii] Both Zen Magnets LLC and Star Networks USA continue to sell their products.[ix]
On May 3, an administrative law judge granted the CPSC’s request to add the former CEO of
Buckyballs’ manufacturer to the lawsuit.[x] For the first time, the CPSC is pursuing individual and
personal liability against an executive for a company’s alleged violations of the Consumer Product
Safety Act. Although it remains to be seen whether the CPSC will adopt this approach in other cases,
at minimum, this demonstrates just how far the CPSC is willing to push the envelope.
Compliance Requirements
Kolcraft Enterprises, Inc., and Williams-Sonoma have both recently entered into settlements with the
CPSC to resolve allegations that they failed to report product hazards, as the CPSC’s governing
statutes and regulations require. In both settlements, the CPSC has imposed specific product safety
compliance procedures on the companies.[xi] In the past, the CPSC has not required that companies
settling such allegations adopt specific policies and procedures. It is likely that the CPSC will continue
this trend in future settlements.[xii]
Recent Policy Change Regarding Information Disclosure
At an agency event in September 2012, the CPSC announced that they would begin confirming that
product investigations are pending when they receive inquiries from the media or consumers.[xiii] The
CPSC has suggested that it may also disclose investigations without receiving any
inquiries. Typically, the CPSC will disclose merely the fact that an investigation is underway and will
also do so only after alerting the manufacturer that the CPSC may make such a disclosure in the
future.[xiv]
Because this policy change was not announced in a Federal Register notice, there remains a great deal
of confusion about what “investigations” the new policy covers. The new policy was announced
during a discussion of manufacturers’ Section 15(b) reports, and the CPSC specifically announced that
manufacturers would be forewarned of potential disclosures in the CPSC’s response to their Section
15(b) reports.[xv] However, representatives of the CPSC have since made statements that suggest
CPSC-initiated investigations may also be disclosed to the public.[xvi]
Saferproducts.gov Database
The CPSIA called for the creation of a publicly available, searchable Internet database for consumer
reports. To prevent the publication of false and misleading incident reports, the statute requires that
reports meet minimum requirements and provides manufacturers with the right to receive timely notice
of a report prior to publication, as well as the right to file material inaccurate information or
confidential information claims before the report is published.[xvii] Despite these requirements, critics
of the database feared that the database would be a repository for unreliable information that would
harm businesses and confuse consumers.[xviii] Even in the face of these concerns, the database went
live on March 11, 2011, and to date, more than 14,500 incident reports have been published.[xix]
Gibson Dunn represents “Company Doe” in the first successful legal challenge to a CPSC decision
involving saferproducts.gov.[xx] The CPSC filed an appeal of the decision but withdrew the appeal
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before briefs were due;[xxi] the company is continuing to defend an appeal brought by third parties
challenging the district court’s order sealing certain litigation documents and permitting the use of the
pseudonym “Company Doe.”[xxii]
[i]
See
Consumers
Union,
2007:
The
Year
of
the
http://consumersunion.org/news/2007-the-year-of-the-recall/ (last visited May 15, 2013).
Recall,
[ii]
Ruth Suehle, Wired.com, Exclusive Interview: CEO Craig Zucker on the Demise of
Buckyballs (Nov. 2, 2012), http://www.wired.com/geekmom/2012/11/craig-zucker-buckyballs/ (last
visited May 15, 2013).
[iii]
CPSC,
Recall
Lawsuits:
Adjudicative
Proceedings,
http://www.cpsc.gov/en/Recalls/Recall-Lawsuits/Adjudicative-Proceedings/ (last visited May 13,
2013).
[iv]
Id.
[v]
In re Zen Magnets, CPSC Docket No. 12-2 , Complaint (Aug. 6, 2012), available at
http://www.cpsc.gov/Media/Documents/Recall/Recall-Lawsuits/In-the-Matter-of-Zen-Magnets-LLCCPSC-Docket-12-2/1a-Complaint/.
[vi]
Steve Raabe, Denver-based Zen Magnets Fights Federal Agency Over Safety of Balls,
Denver Post (Aug. 14, 2012), available at http://www.denverpost.com/business/ci_21305171/denverbased-zen-magnets-fights-federal-agency-over.
[vii]
Sam Levin, Federal Agency Targets Denver Magnet Company with No History of Injury,
Denver
Westword
(Blog)
(Aug.
21,
2012);
http://blogs.westword.com/latestword/2012/08/federal_agency_ targets_denver.php.
[viii]
CPSC Release No. 13-077, CPSC Sues Star Networks USA Over Hazardous, HighPowered
Magnetic
Balls
and
Cubes,
(Dec.
19,
2012),
available
at
http://www.cpsc.gov/en/Newsroom/News-Releases/2013/CPSC-Sues-Star-Networks-USA-OverHazardous-High-Powered-Magnetic-Balls-and-Cubes/.
[ix]
Zen Magnets
http://www.magnicube.com/.
LLC,
http://www.zenmagnets.com;
Star
Networks
USA,
[x]
In re Maxfield and Oberton Holdings, LLC, et al., CPSC Docket Nos. 12-1, 12-2, 13-2,
Order
(May
3,
2013),
available
at
http://www.cpsc.gov//Global/Recalls/RecallLawsuits/OrderGrantingSecondAmendedComplaints05062013.pdf (last visited May 13, 2013).
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[xi]
CPSC Release No. 13-136, available at http://cpsc.gov/en/Newsroom/NewsReleases/2013/Kolcraft-Agrees-to-400000-Civil-Penalty-for-Failure-to-Report-Defective-Play-Yards/
(last
visited
Mar.
13,
2013);
CPSC
Release
No.
13-184,
available
at
http://www.cpsc.gov/en/Newsroom/News-Releases/2013/Williams-Sonoma-Agrees-to-987500-CivilPenalty-Significant-Internal-Compliance-Improvements-for-Failure-to-Report-Defective-Pottery-BarnWooden-Hammock-Stands/ (last visited May 10, 2013).
[xii]
See Greg Ryan, CPSC Finds Roundabout Way to Impose Pricey Policies, Law360 (May 6,
2013), available at http://www.law360.com/productliability/articles/438893?nl_pk=31d76da5-be034dcc-bea6406f2cc46b95&utm_source=newsletter&utm_medium=email&utm_campaign=productliability
(last
visited May 10, 2013).
[xiii]
Rachel Boehm, Government Operations: CPSC Will Confirm Product Investigations in
Response to Public, Media Inquiries, 40 BNA Product Safety & Liability Reporter 1075 (Sept. 24,
2012). According to some sources, the CPSC has indicated that it will not fully implement this policy
until it addresses businesses’ concerns about the policy change. See Lee Bishop, CPSC Will Continue
Its
Aggressive
Approach
In
2013,
Law360
(Dec.
21,
2012),
http://www.law360.com/articles/401105/cpsc-will-continue-its-aggressive-approach-in-2013
(last
visited May 15, 2013).
[xiv]
Rachel Boehm, Government Operations: CPSC Will Confirm Product Investigations in
Response to Public, Media Inquiries, 40 BNA Product Safety & Liability Reporter 1075 (Sept. 24,
2012).
[xv]
See id.
[xvi]
See id.
[xvii]
15 U.S.C. § 2055A.
[xviii]
154 Cong. Rec. S7871 (daily ed. July 31, 2008) (Statement of Sen. Jon Kyl) (further
noting that the Act “hurts businesses without providing commensurate benefits to consumers”); U.S.
Chamber of Commerce, Letter Opposing S. 2663, the “CPSC Reform Act” (Mar. 4, 2008), available at
http://www.uschamber.com/issues/letters/2008/letter-opposing-s-2663-cpsc-reform-act (last visited
May 15, 2013); Consumer Products Safety Commission, Statement of Commissioner Anne M. Northup
Regarding the Notice of Proposed Rulemaking on the Publicly Available Consumer Product Safety
Information
Database
(Apr.
22,
2010),
available
at
http://www.cpsc.gov/PageFiles/124243/northup04232010.pdf (last visited May 15, 2013); Jennifer C.
Kerr, New Unsafe Products Database Under Fire On Hill, Associated Press (Feb. 25, 2011); 157
Cong. Rec. H1308, H1321 (daily ed. Feb. 18, 2011) (Statement of Rep. Emerson).
[xix]
See Consumer Product Safety Commission, Public Export Database Tool,
http://www.saferproducts.gov/SPDB.zip (last visited May 14, 2013) (file labeled “Incident Reports”).
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[xx]
2012).
Company Doe v. Tenenbaum, No. 8:11-cv-2958, 2012 WL 5245523 (D. Md. Oct. 22,
[xxi]
Company Doe v. Tenenbaum, No. 12-2210, Doc. No. 26 (4th Cir. Dec. 7, 2012).
[xxii]
See Company Doe v. Public Citizen, No. 12-2209 (4th Cir.).
Gibson Dunn's lawyers are available to assist in addressing any questions you may have about these
developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom
you work, or any of the following lawyers:
Baruch A. Fellner - Washington, D.C. (202-955-8591, [email protected])
Amanda C. Machin - Washington, D.C. (202-887-3705, [email protected])
Daniel P. Rathbun - Washington, D.C. (202-887-3714, [email protected])
Thomas M. Johnson, Jr. - Washington, D.C. (202-887-3781, [email protected])
© 2013 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes
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