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Consumer Product Safety Compliance During the COVID-19 Pandemic

April 30, 2020, Covington Alert

Poison prevention has been one of several top priorities of the U.S. Consumer Product Safety Commission (“CPSC”) during the COVID-19 pandemic. President Trump’s recent speculation about the ingestion of disinfectants as a potential COVID-19 treatment prompted the agency to tweet an urgent safety warning the following day, and product manufacturers have issued similar warning statements about proper use of household cleaning products.

Even before this “ingestion incident,” the CPSC had focused on poison prevention as a top COVID-19 product safety priority. Under the Poison Prevention Packaging Act, originally passed by Congress in 1952 (then the “Poisons Act”) and exclusively enforced by the CPSC, manufacturers are required to test, certify conformance with, and market household cleaning products containing toxic chemicals, as well as prescription drugs and certain over-the-counter drugs (such as aspirin), in special child-resistant packaging.

The U.S. Environmental Protection Agency enforces similar packaging requirements for certain EPA-registered disinfectant products, such as products that exceed specified toxicity levels, under the Federal Insecticide, Fungicide, and Rodenticide Act. Under the Federal Hazardous Substances Act (“FHSA”), enforced by the CPSC, products containing toxic substances must contain precautionary warning statements, such as “Danger” and “Harmful if Swallowed.”

Products that are not compliant with special packaging and labeling requirements are considered misbranded under the Food, Drug, and Cosmetic Act or the FHSA and can trigger mandatory hazard reporting to the CPSC, as well as corrective action such as recalls. Failure to report or late reporting of hazardous or noncompliant products also can trigger government investigations, enforcement actions, and civil or criminal penalties under the Consumer Product Safety Act.

COVID-19 has required the consumer product industry to confront an array of challenges, as businesses seek to protect the health of their employees and consumers, while navigating major supply-chain disruptions, testing lab closures, and unanticipated changes in production and consumer demand for products. Consumer product manufacturers, importers, and retailers should remain vigilant about product safety compliance during this extraordinary time.

Summarized below are the top five points for consumer product companies to keep in mind during the COVID-19 pandemic:

1. Recalls Continue With Remedial Flexibility

Since the World Health Organization declared COVID-19 a global pandemic on March 11, the CPSC has announced dozens of recalls. In a COVID procedures directive, the CPSC made clear that it “is on the job and working to protect consumers from unreasonable risks of injury or death associated with consumer products under the agency’s jurisdiction.” The agency’s operations—including compliance, hazard analysis, and enforcement—continue through tele-working.

But the agency has demonstrated flexibility regarding the timing and scope of remediation. As indicated in a COVID-19 CPSC Recall Remedy Notice,”[d]ue to the extraordinary circumstances surrounding COVID-19, some of the remedies identified in recall press releases may not be available at this time.”

2. Mandatory Reporting of Substantial Product Hazards

The CPSC’s COVID-19 directive reminds companies of the duty to “immediately report” information “reasonably supporting” the conclusion that a product could create a substantial product hazard, an unreasonable risk of serious injury or death, or a noncompliance with a CPSC product safety rule, regulation, standard, or ban. Product safety compliance issues may arise when a component is either added or dropped from a product’s design, or when a manufacturing process changes. Businesses encountering coronavirus-related supply-chain disruptions (or changing suppliers for any other reason) should carefully evaluate any potential safety impacts of such changes. This is especially true when a company changes its testing procedures, uses new materials or components, or modifies safety features.

3. Stay-at-Home Focus on Household Hazards

As a consequence of extensive school closures and shelter-in-place orders, the CPSC has focused heightened attention on the risk to consumers of household hazards, such as fires, furniture tip-overs, senior citizen falls, and childhood ingestion of batteries or magnets in children’s products.

The CPSC and state and local health and safety regulators also continue to scrutinize and increasingly limit the use of certain toxic chemicals in consumer products. For example, the Commission has initiated potential rulemaking activity on organohalogen flame retardants used on furniture, electronic devices, and children’s products. The Vermont legislature is debating a bill that would ban the use of perfluoroalkyl substances (“PFAS”) in rugs and carpets, food packaging, and firefighting foam, and denotes PFAS as chemicals of “high concern to children,” which would trigger reporting requirements. As of January 1, 2020, the city of San Francisco banned the use of PFAS in compostable dishware and single-use containers for prepared foods.

The COVID-19 pandemic also has brought renewed focus on indoor air quality. Both the CPSC and EPA have published consumer guidance on indoor air quality, increasingly relevant to consumers of all ages spending more time breathing the air inside their homes. Voluntary standard-setting entities, such as the American Society of Heating, Refrigerating and Air-Conditioning Engineers, have promoted the utility of HVAC systems in mitigating the risk of COVID-19 contagion.

4. IoT/AI Product Development and Compliance Enhancements

The CPSC continues to lead an Interagency Working Group on Consumer Product Safety of Internet-Connected Products. The purpose of the group is to define each agency’s responsibilities with respect to Internet-connected products, identify gaps, and to enable the CPSC to develop best practices guidance for safe and secure connected products. Group participants include the National Institute of Standards and Technology’s National Cybersecurity Center of Excellence (NCCoE), the Food and Drug Administration, the Federal Trade Commission, the Federal Communications Commission, the Department of Energy, the Department of Homeland Security, and other agencies. The CPSC also is collaborating with ASTM International to develop a voluntary standard for connected consumer products, including connected toys, smart apparel, wearable health trackers, and other smart devices.

Technology-assisted, artificial-intelligence driven, and connected products may be used in novel ways to promote social distancing and enable early detection of COVID-19 symptoms. Consumer product and equipment innovations include food and supply delivery drones, sound-emitting equipment triggered by physical proximity, smart apparel and accessories with symptom-monitoring sensors, and contact tracing devices. The development of connected products with health-monitoring capabilities has sometimes blurred the boundary between consumer products and medical devices, and has resulted in regular coordination between the CPSC and the FDA.

Businesses reducing their workforce or transitioning to telework during the pandemic should ensure that their product safety compliance programs continue to be effective. Web-based messaging platforms and social media channels are increasingly being used by manufacturers, consumers, and regulators to communicate product safety information.

5. Election Year: Leadership Change or Stalemate?

The CPSC is an independent agency that is bipartisan by statute, with the majority of Commissioners typically sharing the governing President’s party affiliation. The prior Republican Acting Chair, however, supported the prior and now-serving Democratic Acting Chair when she withdrew her nomination last year, creating bipartisan parity and a Commissioner vacancy. President Trump’s most recent nominee for Commissioner and Chair, Nancy Beck, has attracted attention from Congressional Democrats, and environmental and consumer advocacy groups, for her past work as an EPA official and current service on the White House National Economic Council. As we head further into the election year cycle, the composition of the Commission may hinge on further COVID-19 developments.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Product Safety practice.

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