Hunton Retail Law Resource

Last month, the solar eclipse captivated the United States and many consumers flocked to purchase solar eclipse glasses to safely observe the astronomical phenomenon. We previously reported how NASA issued a safety alert advising consumers on the proper eye protection they should seek. Now, some consumers have filed a class action lawsuit against a major online retailer for allegedly selling “unfit, extremely dangerous, and/or defective” solar eclipse glasses. As a result, the consumers allege “varying degrees of eye injury ranging from temporary discomfort to permanent blindness.”

CBS News recently reported that a major used car dealer is selling vehicles with unrepaired defects subject to safety recalls. Notably, the National Highway Traffic Safety Administration regulates vehicles and not the CPSC. Still, this news serves as a reminder to the secondary market for all consumer products that selling recalled products opens the door to products liability litigation and may facilitate a multimillion dollar civil penalty from the CPSC. In fact, the CPSC has issued guidance to help resellers navigate this tricky landscape.

Next month, the CPSC’s political balance will shift in a way that could reshuffle the agency’s enforcement focus. In February, we reported that the CPSC had a new Acting Chairman, although the agency still had three Democratic and two Republican commissioners. That political balance will change soon as the term of Commissioner Robinson—a Democrat—expires next month. President Trump recently announced his intent to nominate Dana Baiocco to fill that commissioner vacancy for a seven-year term. Baiocco is a Boston-based law partner whose experience includes helping companies navigate product recalls and defending companies accused of selling unsafe products. If successful, Baiocoo’s arrival at the CPSC will create a Republican majority for the first time in years.

September also offered an important update regarding pool safety. Drowning is the leading cause of unintentional death among children ages one through four and is the second leading cause among children ages five through 14. The CPSC has worked to combat this problem through a public education campaign and a recent study revealed some positive results. However, the CPSC released its latest pool safety statistics this month and the results were still grim. From Memorial Day through Labor Day 2017, at least 163 children younger than the age of 15 fatally drowned in swimming pools or spas. Nearly 70 percent of the victims were children younger than the age of five. While these statistics are lower than they were a few years ago, they demonstrate that there is plenty of room for improvement with respect to pool safety.

Lawyers from Hunton & Williams LLP’s Insurance Coverage practice group weigh in regarding recent insurance coverage cases involving product recall claims:

Product recall insurance litigation was slow in the month of September, with the exception of an interesting lawsuit filed in Northern Illinois. The suit was filed by an Alaska union-benefits fund against Abbott Laboratories, alleging that one of Abbott’s medical device companies failed to warn the public and regulators about defective lithium batteries in implantable defibrillators. The union seeks to act as class-representative for all self-insured and commercial insurance companies impacted by hundreds of millions of dollars in pay-outs associated with the battery recall. Class actions involving insurance claims are not new; earlier this year, Allstate sued a manufacturer, seeking to recover the $3.6 million in payouts associated with 44 clothes dryer fires. Suits like these should remind product manufacturers about the breadth of potential exposure associated with costly product recalls, and the importance of prompt response to indicia of product defects or safety concerns.

Total Recalls: 19

Hazards:

Fire/Burn/Shock (5); Crash (3); Injury (3); Fall (2); Tip-Over (2); Choke (2); Violation of Flammability Standards (1); Laceration (1)

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