Hunton Retail Law Resource

The partial federal government shutdown forced the U.S. Consumer Product Safety Commission (“CPSC” or “Commission”) along with other agencies to close for 35 days. In fact, the last recall on the Commission’s website is dated December 20, 2018—two days before the unprecedented shutdown began.

According to a CPSC memo, only 4% of the Commission’s staff (20 out of 550 employees) were permitted to work during the shutdown. Those essential employees were directed to work on tasks that “create a substantial and immediate threat to the safety of human life.”

With the Commission closed for most of January, it is unsurprising that there have been no recalls issued or civil penalties assessed by the CPSC. But this shutdown serves as a reminder that manufacturers, distributors, and retailers cannot shirk their obligations under federal consumer protection laws even if the CPSC is closed. The shutdown does not change a company’s mandatory reporting obligations. Also, companies—not the Commission—are responsible for issuing product recalls. Thus, although the Commission usually works closely with companies to issue recalls, a company’s liability for not issuing a timely recall is not relieved by the Commission’s closure. In fact, Acting Chairman Ann Marie Buerkle recently tweeted that “it is up to the reporting entity to determine whether a recall should be done independently while the shutdown persists.”

At least seven companies have issued unilateral recalls via their own communication channels during the shutdown for the following consumer products:

Although the Commission was closed during the shutdown, President Trump took the expected step of again nominating Ann Marie Buerkle for CPSC Chairman for a seven-year term. President Trump has previously nominated Buerkle twice for this position (July 2017 and January 2018) but both nominations expired after Senate leadership failed to bring them to the U.S. Senate floor for a vote. Buerkle has served as the CPSC’s Acting Chairman since February 9, 2017.