In accordance with section 214 the Consumer Product Safety Improvement Act of 2008 (CPSIA), the Consumer Product Safety Commission (CPSC) has issued a notice of proposed rulemaking specifying guidelines and requirements for recall notices that are ordered by the Commission or a US District Court under the Consumer Product Safety Act (Proposed Rule). The Proposed Rule applies only to such mandatory recall notices and does not apply to voluntary recalls that result from corrective action settlement agreements with Commission staff.1 A summary of the Proposed Rule appears below.

First, the Proposed Rule acknowledges that a recall notice sent directly to specifically-identified consumers is the most effective method of communicating a recall to purchasers. Accordingly, a direct recall notice communicated through US e-mail, electronic mail, or telephone call should be used for each consumer for whom a firm has direct contact information. The importance of this notice over other articles of mail or e-mail should be made evident by specifying “Safety Recall” or other appropriate terms in an electronic mail subject line, and, in large bold red typeface, on the front of an envelope and in the body of a recall notice. The Proposed Rule also instructs that a recall noticed posed to a Web site (i) be clear and prominent; (ii) appear on the site’s first entry point, such as a home page; and (iii) be interactive by permitting interested persons to obtain recall information and to request a remedy directly on the Web site.

Second, the Proposed Rule requires every recall notice for a mandatory recall to provide certain information, such as:2

1. Description of the product, which will enable consumers and other persons to readily and accurately identify the specific product and distinguish it from similar products. This description information includes, but it not limited to, (i) the product’s names, including informal and abbreviated names, by which consumers and other persons should know or recognize the product; (ii) the product’s intended or targeted use population (e.g., infants, children, or adults); (iii) the product’s colors and sizes;(iv) the product’s model numbers, serial numbers, date codes, stock keeping unit (SKU) numbers, and tracking labels, including their exact locations on the products; (v) identification and exact locations of product tags, labels, and other identifying parts, and a statement of the specific identifying information found on each part; and (vi) product photographs.
2. Description of the actions that a firm is taking concerning the product. Such actions may include, but are not limited to, stop sale and distribution; recall to the distributor, retailer, or consumer level; repair; request return and provide a replacement; and request return and provide a refund.
3. Description of the product’s actual or potential hazards, including the product defect, fault, failure, flaw, and/or problem, and the type of hazard or risk, such as burn, fall, laceration, and/or death.
4. Identification of the recalling firm, each manufacturer (including importer), and “significant retailers.” A product’s retailer is considered “significant” if (i) the retailer was the exclusive retailer of the product; (ii) the retailer was an importer of the product; (iii) the retailer has stores nationwide or regionally-located; (iv) the retailer sold, or held for purposes of sale or distribution in commerce, a significant number of the total manufactured, imported, or distributed units; and/or (v) identification of the retailer is in the public interest.
5. Summary of all incidents (including property damage), injuries, and deaths associated with the product conditions or circumstances resulting in the recall, as well as a statement of the number of such incidents, injuries, and deaths. The notice must state the ages of all persons injured and killed, as well as the dates or date range on which the Commission received information about injuries and deaths.
6. Description of the remedy, including refunds, product repairs, product replacements, rebates, coupons, gifts, premiums, and other incentives.

Ultimately, these guidelines and requirements are intended to help consumers, consumer safety advocacy organizations, public interest groups, state, local and federal government agencies, and other bodies (i) identify the specific product to which the recall notice pertains; (ii) understand the product’s actual or potential hazards, and information relating to such hazards; and (iii) understand all remedies available to purchasers of the product.

CPSC invites interested stakeholders to submit comments on the proposed rulemaking. Comments must be received by April 20, 2009.

Please contact any of the individuals below if you would like to discuss the preparation of comments to CPSC on your behalf or if you have any questions regarding the CPSIA in general.

Related Document:
Guidelines and Requirements for Mandatory Recall Notices: Notice of Proposed Rulemaking

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

James R. Ravitz
ravitz.james@arentfox.com
202.857.8903

Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984

Robert G. Edwards, PhD
edwards.robert@arentfox.com
202.857.6346

Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338

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1 Should the Commission decide to extend these requirements to voluntary recalls, then it would initiate a separate rulemaking.

2 The Commission or a US district court may determine that one or more of these provisions are not required to appear in the recall notice for a specific product.