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BOAZ GREEN
Counsel, Keller and Heckman LLP

Background

Boaz Green practices in the areas of product safety and consumer protection, assisting on regulatory compliance, enforcement and policy questions. In his product safety practice, Mr. Green counsels clients on risk management and product safety strategies, responses to allegations of incidents or unsafe products, as well as on compliance with Consumer Product Safety Commission (CPSC) requirements, including those of the Consumer Product Safety Act, the Consumer Product Safety Improvement Act, the Federal Hazardous Substances Act, the Poison Prevention Packaging Act, and CPSC regulations and guidance. He also helps clients address the increasing array of state consumer product requirements, including various state green chemistry and related questions.

Prior to joining Keller and Heckman, Mr. Green was Chief Counsel to Commissioner Marietta S. Robinson at the CPSC. Before his service at the CPSC, Mr. Green focused his government and private practice on financial services regulation and litigation, including commodities, securities, and white collar crime.

Mr. Green is a contributing author of the Consumer Protection Connection blog.

Education: New York University (B.A., 2002, summa cum laude); Georgetown University Law Center, (J.D., 2005, cum laude)

Admissions: District of Columbia; New York

CPSC Increases Focus on Regulatory Violations

Consumer products are usually recalled because of a defect that might pose a safety risk once the product gets into the hands of consumers. However, the number of recalls for regulatory violations as opposed to defects are rising. In 2019, the U.S. Consumer Product Safety Commission (CPSC) announced recalls of 37 products for violating mandatory safety standards, up from 26 the year before. These products were recalled because they failed to pass specific mandatory performance tests. The increasing number of such recalls is a trend that is likely to continue under the CPSC’s current leadership.

Only products that are subject to mandatory safety standards can be recalled for regulatory violations, but this is a larger and more diverse group of products than many companies expect. All children’s products (defined as products designed or intended primarily for the use of children 12 years old or younger) are considered regulated products. All are subject to regulatory limits on lead in surface coatings and substrate and must comply with third-party testing and Children’s Product Certificate (CPC) requirements, as well as tracking label requirements. Many children’s products are subject to additional mandatory safety rules, e.g., the toy safety standard; requirements for durable nursery products such as cribs, strollers, and highchairs; flammability standards for children’s sleepwear; and more.

An eclectic and diverse group of non-children’s products, which CPSC refers to as “general use products” are also subject to mandatory safety standards. These include adult apparel, mattresses, and rugs, which are all subject to flammability standards; household chemicals or other potentially hazardous products that may be subject to child resistant closure requirements; and refrigerators that must be capable of being opened from the inside to prevent child entrapment. Any general use product that is subject to such requirements must also be accompanied by a General Certificate of Conformity (GCC) attesting to compliance with the relevant regulation.

Companies that import regulated products must contend with CPSC inspections at the port. CPSC field officers are co-located with U.S. Customs and Border Protection (CBP) at most major ports. They monitor incoming shipments and pull products for inspections based on an internal risk assessment methodology that considers, among other things, product type, port of origin, and information about the manufacturer and/or importer. CPSC’s port detentions focus almost exclusively on regulated products. Initial inspection will include making sure that products meet all labeling requirements and have the required certifications. CPSC also tests products to see if they meet relevant performance standard. Some tests, like preliminary screening for lead, can be done at the port; other testing is done at CPSC’s labs in Maryland, which can take weeks to complete. Products without required labels or certifications are virtually guaranteed to require further testing.

If CPSC finds that the products do not meet a relevant regulation it can demand that the products be seized and destroyed. CPSC historically has typically allowed a company to recondition products to make them compliant, especially if the violation involves a labeling issue or incomplete certificate of conformity rather than a substantive failure to meet a specific safety standard. However, it appears that CPSC has become stricter in some circumstances; demanding destruction of products with technical labeling and alleged certification violations, even when it is feasible to recondition them.

The cost of an alleged regulatory violation can be very high. Port detentions can be lengthy, making it difficult for companies to fulfill obligations to customers, especially in a “just-in-time” supply chain. If CPSC finds products are violative, companies risk losing the value of the shipment and may be subject to CBP fines for importing “illegal” products. A violation may also put a company on CPSC’s radar, which will mean more of its shipments will be stopped and scrutinized. If a regulatory violation is identified after products have been introduced into the market, either by the company or by CPSC, it may trigger reporting obligations and ultimately could result in a recall.

making these process and procedure engancements will lower your regulatory risk and could help improve your products' overall quality and reliability

There are several steps companies can take to reduce the likelihood of regulatory violations. While all involve some investment of time and resources, the savings on the back end can be significant. If you manufacture, import, or sell consumer products, we recommend that you:

  • Fully research and understand the regulations that apply to your products. Understand requirements for materials, design, and testing, as well as labeling and certification requirements.
  • Make sure you have an appropriate testing program in place. Verify that your labs are applying the appropriate standards and review the test results closely.
  • Monitor your suppliers. Test to confirm that all manufacturing runs meet your design and material specifications. Subject your suppliers to audits and inspections.
  • Enhance quality control checks for regulatory compliance prior to shipment to the U.S.
  • Review your contracts with suppliers and customers. Assess the extent to which you have recourse against your suppliers if a product is found to be violative or fails to meet specifications. Likewise, understand your obligations to your customers and budget accordingly.

Making these process and procedure enhancements will lower your regulatory risk and could help improve your products’ overall quality and reliability.

About Spotlight

Too often, recall management has a low priority within a company. It’s put in its own box, locked away, only to be applied, or even discussed, when a product must be pulled off the market. We want to change that.

The Expert Solutions Spotlight is our way of sharing perspectives from our strategic partners – lawyers, insurers and risk managers and crisis communications experts across industries – on product safety issues that have potential to influence a company’s view on recalls and crisis management. In some cases, the connection is obvious but the perspective is new. In others, we will raise questions that you may have never considered in the context of recall management. That’s our intent.

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