Bowles & Verna LLP has represented clients throughout the world on whether product recalls are required or prudent and, if so, what the scope of the recall should be. We work with the U.S. Consumer Product Safety Commission and Health Canada on these issues. On one occasion, we conducted a worldwide recall that required interfacing with CPSC-like agencies in multiple countries in North and South America, Europe, Asia, and Australia. Our current team leaders for product recalls are Rich Ergo, Cathleen Huang and William Nagle.
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Often, our representation includes determining what entities within the chain of distribution bear responsibility for the expense of a recall. While the manufacturer typically is the responsible party, on occasion, other parties in the chain bear responsibility. For example, a glass bottle manufacturer may not be the responsible party for chipped glass injuries where the customer/distributor applies caps to the bottle with too much force or in an off center manner. In other instances, the customer dictates what product warnings should be provided and should be responsible for recalls conducted due to inadequate warnings. Our team has worked with the CPSC and clients on actual or potential recalls involving a variety of products, including flammable gas cylinders, dehumidifiers, propane valves, coffee makers, solar cookers, gas regulators, gas/water piping, propane grills, laptop adapters and glass containers. When a recall is a possibility, it is critical to first determine if a notice to the CPSC is required.
If notice is required, the next step is adhering to CPSC requirements for reporting and following up on CPSC requests for additional information. We have built a track record of working closely with the CPSC and ensuring that all deadlines and requirements are met. Simply because a company has to report a possible “substantial product hazard” to the CPSC does not mean that a recall automatically has to happen. We have worked diligently with the CPSC on investigating whether the reported issue was due to a flaw with the design or manufacture of the product or due to other factors, such as consumer misuse – to an extent, that recall is not necessary. Often, that investigation can be done solely with the client’s in-house engineers. Other times, it is necessary to retain outside experts to ensure that positions we assert on product issues are credible and correct.
Many of our recall matters involve overseas manufacturer clients. Many overseas manufacturers tend to rely on their U.S. customers/retailers to interface with the CPSC regarding the scope and parameters of a recall. We stress that doing so is a mistake; that due to the manufacturer having far greater familiarity with the design and manufacturing process, the manufacturer is in a far better position to work with the CPSC’s technical staff in determining if a recall is necessary. Moreover, if a recall is necessary, a manufacturer has far more financial motivation to research possible fixes as opposed to replacing the entire product. In one instance, a recall involving a glass plated component that shattered, our client’s engineers determined that placing an adhesive plastic cover on the glass prevented any shattered glass from projecting into contact with consumers and even reduced the occurrence of the glass plate from shattering. The CPSC tested the plastic covering and determined the covering would prevent further injuries and allowed the client to provide repair kits as opposed to replacing the entire component. The cost of providing the repair kit was approximately one-tenth the cost of replacing the component. Thus, when recalls are necessary, we always encourage our clients to research options that are more cost effective than product replacement as long as those options offer adequate protection to consumers.