Highlights from ICPHSO London 2010
On November 29 and 30, 2010, Crowell and Morning attorneys Anne Davies and Natalia Medley attended the International Consumer Product Health and Safety Organization's ("ICPHSO") Seventh Annual International Meeting and Training Symposium in London, England. Attendees at the meeting included government officials from the European Commission, the United States, Canada, Australia, Korea, and Japan; industry representatives; attorneys; and testing laboratories.
Here are some highlights from the conference:
- Public Databases. There was a discussion of the role that public databases may play in identifying product safety issues and trends, which was particularly relevant in light of the U.S. Consumer Product Safety Commission's ("CPSC") recent vote to approve the final interpretive rule relating to the public database mandated by the Consumer Product Safety Improvement Act of 2008 ("CPSIA").
- A representative from the CPSC provided some information about the public database, to which people will be able to post reports of harm involving consumer products, subject to some restrictions, which will then be available to be viewed by the public. Manufacturers and other entities whose products have been the subject of such a report will be provided the opportunity to comment on these reports as well, which will also be posted to the database. Manufacturers and private labelers may begin registering to receive notice of relevant reports for the public database beginning in January 2011, which will enable them to receive information and analyze reports submitted for publication on the database in a timely manner. The public database is scheduled to be online at www.saferproducts.gov on March 11, 2011. A representative from the CPSC acknowledged that the new database will create additional responsibilities for both manufacturers and the Commission, and that the CPSC will be hiring additional staff to handle the verifications and investigations required by law for the new database.
- The European Commission operates the European Injury Database ("IDB") and many of the member states are already participating in this initiative. The United Kingdom at one time had a public injury database, but it was discontinued in 2002.
- Some consumer product manufacturers also operate their own public complaint databases, which provide a uniform way for consumers to comment on product issues, both involving quality and safety concerns. This type of initiative was lauded by regulators as a useful tool for manufacturers to identify product defects and emerging hazards.
- Harmonization of Standards. Industry, consumer groups, and regulators all stressed the importance of harmonizing consumer product safety standards. There are many different mandatory and voluntary standards in place for different products around the world, including in the U.S., Europe, and China, among many other regulatory regimes. The European Commission intends to attempt to harmonize the standards of the different member states. It was noted that industry may undertake to develop globally uniform voluntary standards.
- Supply Chain Control. It was generally recognized that supply chains are becoming increasingly complicated and removed from consumers, and the regulators discussed the need for more controls at every point in the supply chain to minimize product safety issues. Counterfeiting was recognized as a serious problem, usually resulting from an uncontrolled supply chain. Counterfeited products typically do not incorporate as many safety features as the genuine articles, which may present hazards, damage a manufacturer’s reputation, and are a serious concern.
- Market Surveillance. Market surveillance was recognized as an area for improvement by regulators.
- The CPSC conducts some market surveillance now by sending its field investigators to stores to evaluate potential hazards, conduct XRF testing, and secure samples for testing. The CPSC searches internet websites, attempting to locate recalled goods being resold and apparent violations of consumer product safety standards. The CPSC has also increased its import surveillance in the past year, which it views as being generally effective.
- In Europe, market surveillance of consumer products is the responsibility of individual member states. There was discussion of a potential coordination of market surveillance through a central body to assist the different jurisdictions with these enforcement efforts.
- Australia has increased its market surveillance by employing nine consumer product safety field officers doing surveillance work around the country. The Australian Competition and Consumer Commission ("ACCC") is also linking up with border control to conduct market surveillance. It is anticipated that these efforts will result in more warning letters and administrative actions.
- The Korea Consumer Agency operates a Consumer Injury Surveillance System ("CISS") that monitors consumer safety and assists officials in investigating product issues and trends, drawing from reports from hospitals, fire stations, and other sources. These recalls often result in recalls and other corrective actions.
- Food Safety & Product Safety. It was also suggested that the regulation of food safety and consumer product safety might be unified, as product safety efforts in particular might benefit if approached in a similar way as food safety.
- Recall Effectiveness. Different jurisdictions have varying approaches to measuring recall effectiveness, several acknowledging that the measurement of recall effectiveness may depend on the type of product and risk. Recall fatigue, resulting from the inundation of recall and safety notices across many markets, was cited as a possible source of the decreased effectiveness of recalls. It was suggested that one way to address this issue is by using different terms or developing a system that indicates the seriousness of a safety alert or corrective action so that consumers may easily determine the nature of the risk at the heart of the recall.
Most of the regulators at ICPHSO identified increased recall effectiveness as a goal:
- The CPSC typically measures recall effectiveness by tracking the number of recalled products returned and how many incidents occur post-recall but has recognized that there might be other ways to ascertain recall effectiveness. One potential way to increase recall effectiveness identified by the CPSC is by tracing credit card purchases to identify and contact consumers directly. Another issue that needs to be addressed is the problem of the reselling of recalled goods by third parties that were hired to destroy those items, which drastically reduces the effectiveness of a recall.
- The European Commission has identified the need for close cooperation with enforcement authorities to increase recall effectiveness. The RAPEX system has been a successful means of making recalls and safety issues more visible in the market. Joint enforcement efforts among member states was identified as a way to increase effectiveness.
- The Japanese Ministry of Economy, Trade & Industry ("METI") has attempted to improve recall rates by working with manufacturers and taking measures to increase consumer knowledge of recalls. Japan has revised its Recall Handbook, which contains a section that speaks to recall effectiveness.
- Social Media. Both Australia and the U.S. have used social media such as Facebook and Twitter to publicize product safety concerns and recalls, recognizing that social media can be a useful means of getting the word out about these issues. The U.S. CPSC representative said that the use of social media in the recall process has now become a part of corrective action negotiations.
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