Over the last few weeks, the COVID-19 pandemic has wreaked havoc on small and large companies in the United States and throughout the world.  The pandemic has forced companies to drastically alter their daily operation procedures to comply with state and federal mandates aimed at slowing the spread of COVID-19.

In addition to those state and federal mandates, consumer product manufacturers should be aware that the U.S. Consumer Product Safety Commission (“CPSC”) has made clear that the COVID-19 pandemic does not suspend companies’ obligation to report under Section 15(b) of the Consumer Product Safety Act (“CPSA”).[1]

The CPSC is an independent federal regulatory agency formed in 1972 with a mission to protect the public against unreasonable risks of injury or death from consumer products through education, safety standards activities, regulation, and enforcement by:

• Developing voluntary standards with standards organizations, manufacturers, and businesses;
• Issuing and enforcing mandatory standards or banning consumer products if no feasible standard would adequately protect the public;
• Obtaining the recall of products and arranging for a repair, replacement, or refund for recalled products;
• Researching potential product hazards;
• Informing and educating consumers directly and through traditional, online, and social media and by working with foreign, state and local governments, and private organizations; and
• Educating manufacturers worldwide about its regulations, supply chain integrity, and development of safe products.[2]

In a teleconference interview with Butler Snow attorneys, CPSC Commissioner Peter Feldman confirmed that the Agency remains open for business.  The Agency is tailoring its operations to comply with the social-distancing guidelines that are impacting employers across the country.  The “first challenge,” Feldman said, “was maximizing our teleworking equipment, which was easier than we anticipated.”  The CPSC’s IT team has “moved heaven and earth” to ensure employees have the resources they need to work remotely.

Although he was encouraged by his Agency’s ability to maximize teleworking capabilities, Commissioner Feldman acknowledged that the COVID-19 pandemic has caused its share of disruptions.  The pandemic has limited the Agency’s ability to conduct in-depth investigations, for example, which often involve sending a CPSC investigator to a consumer’s home to better understand the nature of the subject product and any resulting injuries.  While COVID-19 has obviously forced the CPSC to adjust these procedures, Commissioner Feldman explained that the Agency is doing its best to leverage its teleworking capabilities and continue enforcing Section 15(b) and other applicable regulations.

Section 15(b) of the CPSA provides that the manufacturer of products over which the CPSC has jurisdiction must notify the CPSC immediately if the manufacturer obtains information “which reasonably supports the conclusion” that a product:

1. Fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard upon which the CPSC has relied;
2. Fails to comply with any other rule, regulation, standard or ban under the CPSA or any other Act enforced by the CPSC (including, but not limited to the FHSA);
3. Contains a defect which could create a substantial product hazard; and
4. Creates an unreasonable risk of serious injury or death.

See 15 U.S.C. § 2064.

CPSC guidelines have interpreted “immediately” to mean within 24 hours of obtaining information described above.[3]  However, the CPSC allows a company to spend a “reasonable time investigating the matter” if a company is uncertain whether the information is reportable.[4]  CPSC guidelines provide that a company’s investigation to determine whether to report to the CPSC should not exceed 10 working days, unless “the firm can demonstrate that a longer time is reasonable under the circumstances.”[5]

In determining whether or when a company should have reported, the CPSC will evaluate “what the company actually knew about the hazard posed by the product or what a reasonable person, acting under the circumstances, should have known about the hazard while exercising due care including knowledge obtainable upon the exercise of due care to ascertain the truth of the representations.”[6]

In the realm of “under the circumstances,” Commissioner Feldman acknowledged that the COVID-19 pandemic and corresponding social-distancing guidelines have created serious challenges for manufacturers who are subject to the CPSA.  He emphasized that while his Agency aims to “conduct business as usual” and continue ensuring consumer safety, it also recognizes the pressure this extraordinary situation is placing on manufacturers: “The level of compassion we are maintaining [during this time] is that everyone is just trying to do the best they can and not go after the more technical type of violations.”  Recognizing the unprecedented nature of the pandemic, Commissioner Feldman explained that the “Agency is not coming down on parties that are just trying to do the right thing.”

That said, although the CPSC’s COVID-19 notice does not purport to allow companies additional time in which to satisfy their Section 15(b) reporting obligations, Commissioner Feldman’s take was that the Agency is aware of the challenges manufacturers are facing.  “The good news is that our legal and compliance teams are still operating at full capacity,” Feldman explained.  He encouraged manufacturers to reach out to the compliance team for guidance on any CPSC recall issues.

Overall, Commissioner Feldman is proud of how the Agency has been rising to the occasion, working remotely, using sister agencies’ resources, and overall just finding ways to be more efficient and streamlined.  He has also been encouraged by the Agency’s response to the broader call to action in combating the COVID-19 pandemic — the CPSC is working with other government agencies to redistribute personal protective equipment (“PPE”), respirators, gloves, and other helpful materials that would otherwise go unused while the CPSC’s laboratory lies fallow.  While there are several fiscal restrictions on these types of governmental equipment transfers, Commissioner Feldman is confident that the CPSC’s unused PPE and other materials will make it to the front lines and be put to use in combating the spread of COVID 19.

[1] See CPSC Procedures Concerning COVID-19 (March 27, 2020) (available at: https://www.cpsc.gov/Office-of-the-Secretary/Directives/CPSC-Procedures-Concerning-COVID-19).

[2] See CPSC: Who We Are – What We Do For You (April 2, 2020) ( available at: https://www.cpsc.gov/Safety-Education/Safety-Guides/General-Information/Who-We-Are—What-We-Do-for-You

[3]See CPSC Recall Handbook, at 8 (available at: https://www.cpsc.gov/s3fs-public/pdfs/blk_pdf_RECALL%20HANDBOOK.pdf).

[4] Id. 

[5] See Duty to Report to CPSC: Rights and Responsibilities of Businesses (available at: https://www.cpsc.gov/Business–Manufacturing/Recall-Guidance/Duty-to-Report-to-the-CPSC-Your-Rights-and-Responsibilities/).

[6] See CPSC Recall Handbook, at 7.