Hunton Retail Law Resource

With the prevalent spread of COVID-19, hand sanitizers have become this spring and summer’s “fidget spinners,” cycling through the process from market shortage to glut in short order.  With such a rush to meet the drastic spike in demand, product missteps seem inevitable.  Although the Recall Roundup generally focuses on recalls under CPSC jurisdiction, the numerous FDA recalls involving hand sanitizers merits mention here.  Since June 27, 2020, there have been 15 recalls noted on the FDA’s “Recalls, Market Withdrawals, & Safety Alerts” website.  Retailers looking to meet market demand should keep an eye on this FDA web site relative to the hand sanitizers they may have stocked for sale.

A lawsuit pending in the U.S. Court of Appeals for the Third Circuit asks whether you should have to pay to see CPSC’s adopted safety standards.  A consumer filed the lawsuit asking the Third Circuit to order the CPSC to make any binding safety standards freely accessible to the public whenever the CPSC proposes a new rule or adopts a final rule that incorporates the safety standards.  At issue is a CPSC rule that incorporated a safety standard of the American Society for Testing and Materials (“ASTM”) for infant bath seats.  According to the consumer, the binding safety standard for infant bath seats is hidden behind a paywall.  The defendants recently filed briefs in response to the lawsuit.  Defending its actions, the CPSC argues that ASTM owns a copyright in its safety standard, the safety standard may be inspected at the CPSC’s headquarters and the National Archives and Records Administration, and the safety standard may be viewed (but not downloaded) for free online in a read-only format on ASTM’s website.  The ASTM filed an amicus brief, arguing that its safety standards are viewable online for free and that the safety standard does not lose its copyrighted protection merely because a government actor decides to incorporate it by reference.  Another amicus brief—filed on behalf of 10 Standards Development Organizations similar to ASTM—raises concern that an adverse decision would destroy the organizations’ copyright revenues, which are crucial to fund the organizations’ rigorous work and testing necessary to develop and update safety standards.  The Third Circuit has not issued a ruling yet in the lawsuit.

This month, a manufacturer issued a recall of gas boilers after a consumer death was reported.  While undergoing a repair, the boiler’s vent adapter was not securely reattached, which led to carbon monoxide poisoning.  This recall serves as a somber reminder to manufacturers, distributors, and retailers of the liability exposure they may face for life-threatening defects in consumer products.

Total Recalls: 28

Hazards:  Violation of Federal Standard (13); Fire/Burn/Shock (6); Crash (3); Fall (2); Carbon Monoxide (1); Injury (1); Entrapment (1); Choke (1)