What do a comforter that may contain toxic mold, frozen biscuits that may be contaminated with listeria and a hoverboard that may catch on fire all have in common? No, it’s not a trick question. Answer: They’ve been recalled for potential health risks. After all, no one wants to sleep under a toxic comforter.

What is the process for recalling those products? Who’s in charge of it? Well, those products are consumer products, meaning they aren’t food, drinks, drugs, vehicles or firearms. Anything that doesn’t fall in one of those categories falls under the regulatory authority of the Consumer Product Safety Commission (CPSC). The commission is tasked with keeping the public safe from fire, electrical, chemical or mechanical hazards due to unreasonably dangerous products.

However, while it may come as a surprise, the agency rarely issues the recalls itself. The vast majority of recalls issued in the United States are not by the CPSC but the companies themselves. These “voluntary” recalls are negotiated with the company when one of their products violates a safety standard.

These standards can be specific legal standards or voluntary standards put forth by another safety organization, like UL, ASTM International or CSA Group. Voluntary standards are considered the minimum to which products must be designed to meet, and CPSC encourages companies to exceed them.

According to 15 U.S. Code § 2064, the commission technically has jurisdiction over any company that sells a product that:

  • fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard upon which the Commission has relied;
  • fails to comply with any other rule, regulation, standard, or ban under the Code;
  • contains a defect which could create a substantial product hazard;
  • creates an unreasonable risk of serious injury or death.

For those times when something goes awry, companies are legally required to report the defect. The term “voluntary” refers to the negotiations made to reach a recall agreement versus being forced to by court order.

The CPSC encourages companies to use its Fast-Track recall program to remove dangerous products from store shelves as quickly as possible. The program requires companies to be prepared to implement a corrective action plan, including a consumer recall, within 20 days of submitting the initial report. Through it, companies are rewarded for acting quickly by the CPSC not making a preliminary determination that the product contains a defect (which may help with liability issues) and assigning them a point of contact within the agency to make the process move more smoothly.

If a company refuses to issue a recall, the courts get involved, though it’s rare. The CPSC filed a complaint against Buckyballs, magnets that could cause severe internal damage if swallowed, after the manufacturer refused to recall the product. Eventually, the company and the CPSC reached a settlement in 2012 that allowed the agency to issue a recall. Before that, 2003 was the last time the CPSC had to sue to initiate a recall, according to the Consumerist.

Between 2009 and 2012, the CPSC obtained more than 1,800 recalls. In 2012 alone, those recalls impacted 91 million units from around the world, highlighting the need for companies to continually commit to creating safe products for consumers.

Righting Injustice
Cornell Law

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