Thursday, June 10, 2010

CPSIA - McDonald's Shrek Glasses Weren't an "Imminent Hazard"

Some people apparently think I contend that product recalls can only take place if the CSPC insists. I have certainly argued that the CPSC has no authority to demand or even ask for a recall unless certain specific conditions are met. Hate to be the bearer of bad news, guys, but there are limits to the agency's legal authority. Companies themselves can recall products for any reason. There need not be a safety reason - you can recall something from the market because the color's wrong, the material is somehow less than expected, wrong size, wrong instructions, wrong packaging, whatever. A company's ability to recall its own products is not limited by law.

In the case of the McDonald's Shrek glasses, yes, McDonald's declared a voluntary recall. That's not unusual - the vast majority of recalls are voluntary. Only a tiny handful of recalls every year are "mandatory". In any event, the critical issue here is NOT that McDonald's made this choice. As we have discussed, the publicity from this event forced McDonald's hand - they had to protect their brand at all costs. The issue here is that the CPSC apparently "urged" the company to "do the right thing". [These words come from the OnSafety blog, the official blog of the CPSC, believed to be written by Scott Wolfson, Director of Public Affairs.] It was apparently the "right thing" to do although the agency conceded that the glasses were "not toxic", in other words SAFE.

While companies are allowed to choose to recall safe products at their pleasure, the CPSC does not have the unlimited legal authority to reach out to American companies and tell them to take this kind of voluntary action.

The power to recall emanates from certain provisions of the CPSA and FHSA. Notably, Section 12(a) of the CPSA, the agency can't go to court unless there is an "imminent hazard". What might that be? "As used in this section, and hereinafter in this Act, the term 'imminently hazardous consumer product' means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury." Given that the glasses have been acknowledged to be "non-toxic", this standard is impossible to meet.

The relevant term in the FHSA is "banned hazardous substance". In Section 2(q)(1)(A), it is defined as "any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted". [If a ban is done pursuant to subsection (B) of this clause as a "household item" because it is chemical in nature, it must be done by rule, subject to comment and so on. There was no rulemaking process involved in this case.]

"Hazardous material" is defined in Section 2(f)(1)(D) in relevant part as "Any toy or other article intended for use by children which the Commission by regulation determines, in accordance with section 3(e) of this Act, presents an electrical, mechanical, or thermal hazard." And Section 3(e) refers only to electrical, mechanical or thermal hazards, clearly inapplicable here.

Bottom line, the McDonald's glasses are outside the reach of the CPSC . . . if the wording of its principal empowering laws matter anymore.

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