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News & Press: JPMA News

Product Safety Concerns Survive a Government Shutdown

Wednesday, January 16, 2019   (0 Comments)

As we endure the longest Federal Government Shutdown in history, it is worth noting the impact on two federal Agencies that directly regulate our Industry: The U.S. Consumer Product Safety Commission (‘CPSC”) and National Highway Traffic Safety Administration (“NHTSA”).


Most CPSC and NHTSA activity has been halted with limited staff available to oversee normal functions during the shutdown. Each Agency has issued shutdown directives to their respective employees.


- The CPSC has shuttered most offices and indicated that only work “necessary to protect against imminent threats to human safety and to protect government property” will be conducted during the shutdown with only the minimum number of employees necessary to carry out such work.

This means only a skeletal staff remains in place and such CPSC staff will only analyze possibly defective products to determine whether they “create a substantial and immediate threat to human safety,” and will only coordinate and monitor recalls of products posing a “substantial and immediate threat.” CPSC lawyers are only working to provide advice on the shutdown itself and to file required Court submissions.  This means that progress on CPSC rule-makings and new enforcement investigations and negotiations have come to a standstill.  


-The operations of NHTSA, which regulates the safety of motor vehicles, motor vehicle equipment, and child restraint seats (CRS) has also some to a halt per the Department of Transportation’s shutdown directive. NHTSA has suspended rule-makings, enforcement, data analysis, defects-investigations, compliance testing of vehicles and equipment and has stopped review of information provided by manufacturers and consumers.


However, while Government functions have slowed, laws and regulations remain in effect. The obligation to report is not suspended during the shutdown of these agencies even if government employees are not able to normally process such information. The filings will eventually be tracked by submission date electronically and companies remain liable to report and subject to substantial penalties if they fail to reasonably do so. There simply is no stay of the reporting obligations If you are a manufacturer, importer, distributor, and/or retailer of consumer products and motor vehicle equipment. Legal obligations survive a shutdown.


If there is product: that contains a defect which could create a substantial risk of injury or presents unreasonable risk of serious injury or death; that fails to comply with an applicable consumer product safety regulation; that is subject to an incident in which a child chokes on a marble, small ball, latex balloon, or other small part contained in a toy or game (choking is defined as cessation of breathing for any length of time or involving medical treatment for such obstruction); or involved in settlements or judgements of 3 tort lawsuits involving the same product within statutory set 2 year periods (1/1/17 to 12/31/18 and 1/1/19 to 12/31/21), reporting obligations exist. Review as usual is prudent.


Finally, Businesses must remain cognizant of product liability exposure for failing to act reasonably should it be determined that a defect exists with a product they produce or distribute. Businesses which elect to report a product safety defect or noncompliance and prepare a voluntary corrective action plan may not want to wait to launch a recall until government is again open, if potentially unsafe products in the marketplace present a public hazard and increase product liability exposure. In such event consultation with Counsel is advised.


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