Hunton Retail Law Resource

There is plenty of recall activity to report but no civil penalty news to report for November. Perhaps the holiday spirit prevails at the CPSC in this holiday season.

Hoverboards were last year’s hottest toy during the holiday season, but they also caused alarm due to the tendency of their lithium-ion battery packs to overheat while charging, causing the hoverboards to catch fire or explode. This year, the CPSC is taking a proactive approach to hoverboards. In May and again this month, hoverboards by the same manufacturer caused house fires and prompted the CPSC to warn consumers to stop using those hoverboards altogether. Further, a hoverboard by a different manufacturer recently caught fire and caused $40,000 of property damage to a consumer’s home. These serious reports culminated in the CPSC issuing seven recalls this month for hoverboards by different manufacturers due to their potential fire and explosion hazards.

Fatalities led to two additional recalls this month. First, the CPSC recalled fire extinguishers after emergency responders to a fatal car accident could not get one to work. Second, the CPSC again recalled dressers after a dresser tipped over, trapped and killed a two-year-old child. This tragic incident is the eighth child tip-over related death with the manufacturer’s recalled dressers and chests.

November ushered in a new development in the long saga over magnet sets, or clusters of small, separable, magnetic balls that a consumer can rearrange into countless shapes. In 2012, distributors refused to voluntarily recall the magnet sets so the CPSC filed administrative complaints against them, alleging that the magnet sets were defective and presented a substantial product hazard because of the risk that young children would ingest the loose magnets. While most distributors settled the cases and conducted recalls, one distributor chose to fight. In 2016, an administrative law judge determined that the CPSC staff did not prove that the magnet sets were defective or constituted a substantial product hazard when sold with appropriate warnings and proper age recommendations. The CPSC staff appealed that decision to the CPSC, who previously approved the filing of the administrative complaints. Predictably, this month the CPSC issued its decision setting aside the administrative law judge’s ruling. The CPSC concluded that the magnet sets pose a substantial product hazard that cannot be mitigated by package warnings and ordered the distributor to recall the magnet sets.

Total Recalls: 29

Hazards: Fire/Burn/Shock (9); Violation of Federal Standard (5); Injury (2); Fall (2); Choke (1); Strangulation (1); Tip-Over (1); Laceration (2); Failure to Discharge (1); Impact (2); (1) Injury; (1) Failure to Meet Child Resistant Closure Requirement; (1) Mold Exposure

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