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Litigating Defective Children's Products Cases

by Stephen L. Goldner

Children represent the most vulnerable segment of society and arguably ought to receive even more protection than adults from harmful products. They can't read warning labels and are often attracted to the very things that pose the greatest risk for harm. If the manufacturers of toys and other children's products would follow the basic engineering/design principle of "First, design out any hazard," children would be a lot safer. Unfortunately, this principle is lost in today's world of mass marketing and internet commerce. Stores and warehouses are piled high with toys and juvenile products that fly off the shelves one day and are recalled the next. The Consumer Product Safety Commission (CPSC), pursuant to the Consumer Product Safety Act of 1972, is the federal regulatory agency that attempts to regulate virtually all children's products, with one major exception. Child safety seats (automobile car restraints) are regulated by the National Highway Traffic Safety Administration (NHTSA).[1]

THE CONSUMER PRODUCT SAFETY ACT
The CPSA was enacted in 1972. It established the Consumer Product Safety Commission and defined the Commission's basic authority. It states that when the CPSC finds an unreasonable risk of injury associated with a consumer product, the CPSC can develop a standard to reduce or eliminate the risk. The CPSA also provides the authority to ban a product if there is no feasible standard and it gives the CPSC authority to pursue recalls for products that present a substantial product hazard.


Since its inception in 1973, the CPSC has not been nearly as effective as was hoped. Frequently, new standards are proposed but never see the light of day. Because the Commission's oversight extends to literally thousands of consumer products, it is not surprising that each year the dangerous propensities of so many children's products are not discovered until after harm has been done. Frustration over the lack of results from the Commission's oversight and the sheer number of injuries to children has led to recent enactment of a new statute with more teeth.


Congress passed the Consumer Product Safety Improvement Act in 2008, partly to break the cycle of recalls. The new requirements of the CPSIA went into effect August 14, 2009. The Act marks a fundamental shift in the federal government's approach to protecting consumers from dangerous products. The stated goal is to transform the CPSC from its current condition as a "reactive" agency to one that is "proactive" by preventing dangerous products from ever reaching the marketplace.
The new law applies to domestic and overseas manufacturers, importers and distributors of children's products and the potential for civil penalties is now very substantial. The provisions of the new Act are applicable to virtually all children's products from cribs, strollers, highchairs, play yards, clothing, toys containing magnets, to children's accessory items. Additionally, every manufacturer must now submit samples of its children's product, before it is sold, to a third party for independent testing.


On March 11, 2011, the CPSC launched SaferProducts.gov, its new database which was mandated by Congress as part of the Consumer Product Safety Improvement Act. Following procedures set up by the law, the CPSC will review all online reports of unsafe products and will have 5 business days to transmit the report to the manufacturer. Manufacturers then have 10 days to respond and provide comments. This searchable database should substantially reduce the lag time from the initial report of an unsafe product, until the time that the public at large is made aware of the danger associated with the use of that product.
It bears noting that most of the children's products sold in the USA are not manufactured here. Most of the manufacturing is done outside of the United States, primarily in China and Southeast Asia. Without question, the overwhelming number of products which have been recalled come from these foreign countries. For this reason, the CPSC opened its first foreign office last year in Beijing, China.

THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION
The National Highway Traffic Safety Administration (NHTSA) has a singular role as it relates to children's products. NHTSA is charged with enforcing all of the federal motor vehicle safety standards (FMVSS). Standard 213 is the one applicable to child safety seats and it was passed in 1971. Child restraints are, unfortunately, the subject of more recall campaigns than just about any other consumer product. The total number of car seats recalled in the last 10 years exceeds well over 15 million. Car accidents remain the No. 1 cause of death for children in the United States and although all 50 states mandate the use of a child seat, the protection that some restraints offer is minimal.


The Federal Motor Vehicle Safety Standards are by definition "minimum" performance standards. Many manufacturers have, however, treated the standards more like ceilings on safety performance, rather than floors from which to improve safety. Child safety experts are in agreement that the manufacturers of child restraints could do much more to improve safety given today's technology, but they have not done so, because they are not required to under the current Standard.


The NHTSA test requirements under FMVSS 213 do not consider how the child restraint will perform in rear impact, side impact and rollover accidents. (Collectively, these account for approximately 50 percent of the collisions which occur on our roads and highways.) Because the Standard does not require testing in these various crash environments, manufacturers choose not to do so. Other countries, including Canada, Australia, and some European nations, have performance standards for child safety seats that are far more rigorous than the minimal performance requirements of FMVSS 213. Furthermore, NHTSA does not routinely check child restraints to determine if they are safe and comply with even the minimum standard.

LOOKING AHEAD
The Consumer Product Safety Improvement Act carries much stiffer civil penalties for violations, requires enhanced labeling and mandates third party testing of products, so we may begin to notice a decline in the number of dangerous and defective children's products sold in the United States. There is, at least, room for cautious optimism. Until then, litigating cases involving dangerous and defective children's products will remain both challenging and rewarding. A working knowledge of the applicable statutes and federal law is essential. Likewise, since the majority of these cases end up in federal court, it is critical that counsel retain experts with impeccable credentials who can withstand Daubert challenges. Retired CPSC and NHTSA employees can be effectively utilized in many cases.


[1] Other statutes such as the Federal Hazardous Substances Act, the Poison Prevention Packaging Act and the Flammable Fabrics Act, also play a role in regulating certain children's products.

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