CPSC Seeks Input on New Guidelines for Voluntary Recall Notices

by Shannon Allen

The Consumer Product Safety Commission (“CPSC”) seeks comment on a proposed interpretive rule providing “principles” and “guidelines” for the content and form of “voluntary recall notices.” Companies issue recall notices per “corrective action plans” under Section 15 of the Consumer Product Safety Act (“CPSA”).  Current rules require “notice to the public” of the corrective action plan, but do not provide guidance about the details that should be included in a recall notice. This notice of proposed rulemaking provides such guidance by articulating CPSC expectations for “voluntary remedial actions” and “recall notices.”

In general, the proposed rule would establish a new subpart D, titled, “Principles and Guidelines for Voluntary Recall Notices,” in part 1115 of title 16 of the Code of Federal Regulations and would add a new paragraph to 16 CFR 1115.20.

Specifically, 16 CFR 1115.20 states that “the [CPSC] will attempt to protect the public from substantial product hazards by seeking . . . voluntary remedies,” including “corrective action plans.”  The rules further provide that “[c]orrective actions shall include, as appropriate: . . . (xi) An agreement that the Commission may publicize the terms of the plan to the extent necessary to inform the public of the nature and extent of the alleged substantial product hazard and of the actions being undertaken to correct the alleged hazard presented.”  The current regulations, however, do not provide guidance as to the “form or content” of the “notice issued” by the CPSC as a part of “a corrective action plan.” Thus, the CPSC proposes new interpretive rules to set forth such principles and guidelines.

Corrective action plans, negotiated with the CPSC, allow the CPSC to “tailor remedies” to specific circumstances and the “associated health and safety risks” at issue.  These new rules provide wording that allows the CPSC to “pursue compliance program requirements” during the negotiation of “corrective action plans” and permit inclusion of a “corresponding reference” to “compliance program requirements” in an associated “voluntary recall notice.”

The CPSC anticipates the end result in articulating guidelines “regarding the content of voluntary recall notices” will be:

1. greater efficiency during recall negotiations,
2. greater predictability for the regulated community in working with the agency to develop voluntary recall notice content,
3. timelier issuance of recall announcements to the public, and
4. inclusion of compliance program requirements as an element of voluntary corrective action plans would echo compliance program requirements incorporated as part of recent civil penalty settlement agreements.

Comments are due by February 4, 2014.  Interested parties wishing to comment should include the agency name and docket number in their comment (Consumer Product Safety Commission, identified by Docket No. CPSC-2013-0040).  Comments may be submitted electronically or in writing:

• Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: http://www.regulations.gov. Follow the instructions for submitting comments. The Commission is no longer directly accepting comments submitted by electronic mail (email), except through www.regulations.gov. The Commission encourages submitting electronic comments by using the Federal eRulemaking Portal, as described above.
• Written Submissions: Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 504-7923.