[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Rules and Regulations]
[Pages 3355-3371]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-873]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1115
Guidelines and Requirements for Mandatory Recall Notices
AGENCY: Consumer Product Safety Commission.
ACTION: Final rule.
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[[Page 3356]]
SUMMARY: The Consumer Product Safety Commission (``Commission,''
``CPSC,'' ``we'') is issuing a final rule establishing guidelines and
requirements for mandatory recall notices as required by section 214 of
the Consumer Product Safety Improvement Act of 2008 (``CPSIA''). The
rule contains the Commission's interpretation of information which must
appear on mandatory recall notices ordered by the Commission or a
United States district court pursuant to certain sections of the
Consumer Product Safety Act (``CPSA''). The rule also contains
Commission guidelines for additional information that the Commission or
a court may order to be included on a mandatory recall notice.
DATES: Effective Date: This rule is effective on February 22, 2010.
Compliance Date: Regardless of when a product subject to a recall
was manufactured, all mandatory recalls ordered pursuant to sections
12, 15(c) or 15(d) of the CPSA are subject to the guidelines and
requirements herein as of February 22, 2010.
FOR FURTHER INFORMATION CONTACT: Marc Schoem, Deputy Director, Office
of Compliance and Field Operations, Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7520.
SUPPLEMENTARY INFORMATION:
I. Introduction
In the Federal Register of March 20, 2009 (74 FR 11883), the CPSC
published a proposed rule that would establish guidelines and
requirements for mandatory recall notices ordered by the Commission or
a United States District Court under the Consumer Product Safety Act.
The rule was intended to provide firms with a uniform set of
information they can expect to find in a recall notice ordered by the
Commission or a court. The Commission and a court's substantive
authority to order that a mandatory recall notice be issued, including
control over the final form and content of such notice, arises under
sections 12, 15(c), and 15(d) of the CPSA. Section 214 of the CPSIA
(Pub. L. 110-314) did not change this authority. Rather, section 214(c)
of the CPSIA, which adds a new subsection 15(i) to the CPSA, requires
the Commission to establish guidelines which set forth a uniform class
of information that will be included in mandatory recall notices, and
specifies certain content that must be included in mandatory recall
notices. However, the Commission or a court ordering that a recall
notice issue retains final authority over the form and content of
mandatory recall notices. Accordingly, the Commission or a court may
remove information that is unnecessary or inappropriate under the
circumstances, or add additional appropriate information to a mandatory
recall notice. Sections 15(i)(2) and 15(i)(2)(I) of the CPSA.
The preamble to the proposed rule contained detailed explanations
of the proposed rule and described the basis for the proposed rule. See
74 FR 11883 through 11886. We refer readers to that preamble if they
wish to obtain further information or explanation with regard to the
rule. In brief, the Commission developed the proposed rule based on its
expertise with recall notifications since the Commission's inception.
Accordingly, the final rule is a culmination of the statutory
requirements and the Commission's expertise, which is summarized in the
Commission's Recall Handbook, available at http://www.cpsc.gov/BUSINFO/8002.html. Each section of the rule is either statutorily required by
section 214 of the CPSIA, or the Commission has determined will likely
increase recall effectiveness by helping consumers to: (a) Identify a
product subject to a recall; (b) understand the hazard identified with
such product; or (c) understand what remedy is being offered with
regard to the recalled product.
The rule does not contain requirements for voluntary recall notices
which result from corrective action settlement agreements with
Commission staff. If the Commission decides to extend the requirements
to voluntary recall notices, it would proceed with a separate
rulemaking. While this rule may serve as a general guide for
information to include on voluntary recall notices in some instances,
we recognize that each voluntary recall is unique and is negotiated as
such. Therefore, all recall notices issued, whether voluntary or
mandatory, should be tailored to the specific product and circumstances
of a recall. Section 214 of the CPSIA did not alter the Commission's
ability to negotiate voluntary recall notices with a manufacturer and
to tailor both voluntary and mandatory recall notices to a particular
recall scenario.
The Commission received 43 substantive comments on the proposed
rule. After reviewing the comments the CPSC made several changes to the
rule. The changes between the proposed and the final rules are as
follows:
Table 1--Summary of Changes to the Final Rule
------------------------------------------------------------------------
Proposed rule Final rule
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Did not contain a definition of ``Other Defines ``Other persons'' in a
persons''. new Sec. 1115.25(e). This
change is discussed in more
detail in response to comment
12 in section III of this
document below.
Provided that ``firms'' target and Removes the word ``firm'' in
tailor recall notices and consider the Sec. 1115.26(a)(3) to
manner in which a product was marketed clarify that, in a mandatory
and advertised in determining the form recall scenario, firms are not
and content of a recall notice. the entity determining the
form and content of a recall
notice. By statute, the final
form and content of mandatory
recall notices are ordered by
a United States district court
or the Commission. See
sections 12, 15(c) and 15(d)
of the CPSA.
Did not address use of more than one Clarifies in Sec.
form of recall notice. 1115.26(a)(5) that more than
one form of recall notice
should be used. This change is
discussed in more detail in
response to comments 15 and 17
in section III of this
document below.
Did not address when a firm has direct Clarifies in Sec.
contact information. Unclear whether a 1115.26(b)(2) when a firm has
telephone number is considered direct direct contact information.
contact information. Also clarifies that a
telephone number is considered
direct contact information.
These changes are discussed in
more detail in response to
comment 16 in section III of
this document below.
Did not contain examples of when a Provides examples of
recall notice may be required in circumstances when a recall
languages in addition to English. notice may be required to be
made available in languages in
addition to English in Sec.
1115.26(c). This change is
discussed in more detail in
response to comment 19 in
section III of this document
below.
[[Page 3357]]
Did not clearly set forth that Clarifies in Sec. 1115.27(c)
information related to the product that the information outlined
description is required. therein must be included in a
recall notice when applicable
to a product. This change is
discussed in more detail in
response to comment 23 in
section III of this document
below.
Did not specify when a foreign Clarifies in Sec. 1115.27(h)
manufacturer's legal name must be that foreign manufacturers
identified. must be identified by a legal
name, city, and country of
headquarters. This change is
discussed in more detail in
response to comment 32 in
section III of this document
below.
Did not require a description of the Adds ``Region'' at a new Sec.
region where a product was sold or 1115.27(j) as a separate
offered for sale. category of information which
is required when necessary or
appropriate to assist
consumers to identify a
product. This change is
discussed in more detail in
response to comment 21 in
section III of this document
below.
------------------------------------------------------------------------
II. Legal Authority
The substantive authority for the Commission or a United States
District Court to order that a firm issue a mandatory recall notice
comes from existing statutes in sections 12, 15(c), and 15(d) of the
CPSA. Section 15(c) of the CPSA specifically provides that, when the
Commission orders that a firm conduct a mandatory recall, such order
``shall specify the form and content of any notice required to be given
* * *.'' Section 214 of the CPSIA does not alter the Commission's or a
court's authority over the final form and content of a mandatory recall
notice. Section 214(c) of the CPSIA, which added subsection 15(i) to
the CPSA, states that the Commission shall, by rule, within 180 days of
the date of enactment of the CPSIA (August 14, 2008), establish
guidelines which set forth a uniform class of information to be
included in any recall notice ordered under sections 15(c) or (d), or
by court order pursuant to section 12 of the CPSA. (15 U.S.C. 2061,
2064(c), or 2064(d)). Thus, the statute calls for a rulemaking which
sets forth guidelines concerning information that firms can expect may
be ordered in any Commission or court-ordered mandatory recall and the
statute specifies specific content that must be included in mandatory
recall notices.
Section 15(i) of the CPSA states that the guidelines established by
the Commission must include information that would help consumers: (a)
Identify a specific product; (b) understand the identified hazard; and
(c) understand any remedy available to the consumer. Section 15(i) of
the CPSA also requires that a recall notice include certain specific
information, unless the Commission determines otherwise. This
information includes, but is not limited to, descriptions of the
product, hazard, injuries, deaths, action being taken, and remedy;
identification of the manufacturer and retailers; identification of
relevant dates; and any other information the Commission deems
appropriate.
Finally, in addition to section 214 of the CPSIA, section 3 of the
CPSIA grants the Commission general rulemaking authority to issue
regulations, as necessary, to implement the CPSIA. Accordingly, the
Commission has authority to implement section 15(i) of the CPSA, as
amended by section 214(c) of the CPSIA, through section 3 of the CPSIA
as well as section 214(c) of the CPSIA.
III. Comments on the Proposed Rule and the CPSC's Responses
We describe and respond to significant issues raised by the
comments below. To make it easier to identify comments and the
Commission's responses, the word ``Comment'' will appear in italics
before each comment description, and the word ``Response'' will appear
in italics before the Commission's response. We have grouped comments
based on their similarity and have numbered the comments to help
distinguish between different comment themes. The number assigned to
each comment summary is for organizational purposes and does not
signify the comment's value, importance, or order in which it was
received.
Additionally, on our own initiative, we have replaced ``U.S.'' with
``United States'' in the codified text to preclude any potential
confusion as to what the abbreviation of ``United States'' means.
A. Comments Related to Procedural Issues
Comment 1--Administrative Procedure Act (APA)--One commenter states
that the NPR is lacking because it does not contain a list of data or
studies relied upon as required by the APA. Although the preamble to
the proposed rule states that the agency relied on agency recall
guidance materials, including but not limited to the Recall Handbook,
the commenter maintains that these resources were not made available to
the general public. The commenter believes that, at minimum,
information on where to access the resources should be provided or, a
Web link provided for direct access to the documents. The commenter
states that no final rule should issue until the public has the
opportunity to review the underlying data.
Response--The requirements for mandatory recall notices set forth
in the proposed rule are largely dictated by section 214 of the CPSIA.
The proposed rule also includes the Commission's interpretation and
clarification of section 214 of the CPSIA, as well as additional
guidelines. The preamble to the proposed rule states that, in drafting
the proposed rule, the agency relied on its experience conducting
recalls and recall effectiveness gained since the CPSC's inception, as
well as agency recall guidance materials, including but not limited to
the Recall Handbook. Contrary to the commenter's assertion that access
to the Recall Handbook was not provided, the preamble to the proposed
rule contained a link to the Recall Handbook (see 74 FR at 11883).
Moreover, the Commission did not rely on quantifiable ``data'' in
drafting the proposed rule; it relied on the text of the statute and
more than thirty years of experience conducting recalls, which is
summarized in the Recall Handbook. Recall templates and a recall
checklist are also available to the public on the CPSC's Web site at
http://www.cpsc.gov/businfo/corrective.html. These materials have been
available to the public on the CPSC Web site long before passage of the
CPSIA.
Comment 2--Regulatory Flexibility Act--Two commenters take opposite
positions with regard to applicability of the Regulatory Flexibility
Act (``RFA'') to the proposed rule. One comment states that the RFA
should not be applicable
[[Page 3358]]
to children's products so that small businesses will not be able to
circumvent recall duties. Another commenter opines that the CPSC is
attempting to evade the RFA when it states that small businesses will
not be affected by the rule. The commenter takes this position based on
the discretion the Commission has with regard to determining a
``significant retailer,'' which the commenter believes, depending on
the definition, could have a large effect on small businesses. The
comment suggests that a small business analysis should be done on the
proposed regulation.
Response--The RFA generally requires that agencies review proposed
rules for their potential economic impact on small entities, including
small businesses. A regulatory flexibility analysis was not conducted
pursuant to section 605(b) of the RFA, which states that the
requirement to prepare and make available for public comment an initial
regulatory flexibility analysis does not apply if the head of the
agency certifies that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities,
and the agency provides an explanation for that conclusion.
As with the proposed rule, the final rule will have little to no
effect on small businesses. First, the recall notice requirements set
forth in the final rule are largely dictated by the CPSIA and are
already in effect. Second, mandatory recalls are rare in the
Commission's history, so, even if we were to assume that a significant
economic impact would exist (and we do not claim that such an impact
exists), the impact would not affect a ``substantial number'' of small
entities. Third, the final rule will not alter the agency's reliance on
voluntary recalls. Finally, the recall burden on small businesses will
not be altered by the definition of ``significant retailer.'' The sole
purpose of identifying retailers in the recall notice is to assist
consumers with product identification. It has no effect on which firm
issues a recall notice or has responsibility for conducting a recall.
Comment 3--Effective Date--Several commenters state that because
they believe the proposed rule seeks to impose requirements that go
beyond the CPSIA, firms require notice of the additional requirements
and time to comply. Accordingly, these commenters state that the rule
should not be effective upon publication, but should follow the
standard of becoming effective 30 days after publication so that firms
have time to comply. One commenter suggests further that the rule be
clarified not to apply retroactively and that the requirements only
apply to goods manufactured after August 14, 2009.
Response--The final rule applies only to mandatory recalls pursuant
to a court order (section 12 of the CPSA) or an order of the Commission
(sections 15(c), and 15(d) of the CPSA). Mandatory recalls are
infrequent in the Commission's history, and currently there are no
pending matters where a mandatory recall is at issue. Because of the
length of time involved in litigating these issues in a United States
district court or administratively, it is impracticable that any action
would be litigated to conclusion and that an order requiring a
mandatory recall notice would be issued in 30 days time. Therefore,
setting the effective date 30 days after publication is appropriate and
there is no good cause for shortening the period. Finally, the final
rule does not go beyond the CPSIA. Section 214 of the CPSIA
specifically provides that the Commission shall promulgate both
guidelines and requirements for mandatory recall notices, and
authorizes the Commission to issue additional requirements as it deems
appropriate. Section 15(i)(2)(I) of the CPSA.
B. General Comments on the Proposed Rule and Commission Responses
Comment 4--Many commenters seek clarification of the rule. Several
are concerned that many requirements are unnecessary, extraneous, too
complicated, and do not help consumers locate relevant products and
determine what to do with them. In particular, several commenters are
concerned about harm that could occur to business reputation based on
the detailed requirements and the speed at which imperfect information
may travel. Several commenters state that some information is
burdensome for firms to maintain and report with no added benefit to
consumers, and are concerned about the costs to maintain detailed
records such as photographs and pricing information. These commenters
prefer a shorter mandatory recall notice that would purportedly be more
helpful to consumers.
Response--Most requirements set forth in the final rule are
statutorily mandated, and the Commission has the authority to add
requirements it determines are appropriate. A review of the CPSC Web
site demonstrates that the use of many of the requirements in the final
rule in previously issued voluntary recall notices have not resulted in
lengthy recall notices. Moreover, the final rule is not burdensome
because it does not impose any recordkeeping requirements on firms.
Locating a photograph of the product and the price range has not been a
significant issue for firms at the time of a recall. Finally, the
Commission rejects the idea that a recall notice causes undue harm to
business reputation. Responsible firms generally desire to move quickly
to remove defective products from the marketplace because it is
statutorily required, preserves their brand and consumer confidence,
limits liability, and, most importantly, reduces the likelihood of
injuries and deaths from unsafe products.
Comment 5--One commenter would create a mandatory recall notice
template form that includes all required sections for a notice. The
commenter believes that a template will be more efficient, save time
and resources, and allow the Commission to quickly check for all
requirements to speed approval of recall notices.
Response--The CPSC already has a bank of recall notice examples
that staff provides to firms to help create a recall notice. To the
extent such a template is revised, it can and should be done outside of
this rulemaking process, to allow both the Commission and industry
flexibility to update such templates as appropriate.
Comment 6--Several commenters discuss use of the words ``should''
and ``must'' in the proposed rule, and suggest that in the final rule,
use of the word ``should'' should be changed to ``must'' to alleviate
any confusion regarding the mandatory nature of the requirements.
Response--With regard to use of the words ``should'' and ``must''
in the final rule generally, the statute directs the Commission to
issue both a guidance and requirements for mandatory recall notices.
Guidance provided by the Commission regarding mandatory recall notices
uses the term ``should,'' while requirements are described in the
regulation using the words ``must'' or ``shall.''
Comment 7--One commenter notes that the rule omits timeliness
issues with regard to issuing a mandatory recall notice. This commenter
argues that the rule should incentivize firms to comply in a timely
fashion, and provide penalties for non-compliance.
Response--Timeliness is important with regard to both mandatory and
voluntary recall notices. With regard to mandatory recall notices
specifically, the Commission or a court will have control over the
timing of recall notices once ordered.
Comment 8--One commenter suggests using the civil penalties in
section 20(a) of the CPSA as a guideline for penalties for non-
compliance with any time
[[Page 3359]]
constraints imposed. Another commenter suggests adding a section on
prohibited acts for non-compliance with part C generally.
Response--All prohibited acts over which the Commission has penalty
authority are listed in section 19 of the CPSA, and the associated
penalty amount provisions are located in section 20 of the CPSA.
Section 19(a)(5) of the CPSA provides that it is unlawful for any
person to ``fail to comply with an order issued under section 15(c) or
(d).'' Accordingly, these penalty provisions already apply to mandatory
recall orders and the Commission declines to duplicate these provisions
in the rule.
Comment 9--FOIA Rights--One commenter suggests that the rule
include a section on Freedom of Information Act (``FOIA'') rights.
Response--The Commission declines to address FOIA issues in the
rule because a separate, pre-existing, rule on FOIA exists at 16 CFR
part 1015.
C. Specific Comments on the Proposed Rule and Commission Responses
1. Section 1115.23--Purpose
Proposed Sec. 1115.23 would describe the purpose for a new subpart
C, ``Guidelines and Requirements for Mandatory Recall Notices.'' In
accordance with direction in the CPSIA, the proposed rule would set out
guidelines and requirements for recall notices issued under section
15(c) and (d) or section 12 of the CPSA.
Comment 10--One commenter believes that the proposed rule's purpose
and reasoning section are too generic and lack specific information.
The commenter suggests including specific rationales for why certain
requirements will be effective and suggests adding specific examples or
data to illustrate what the specific recall problem is and how the rule
will address the problem.
Response--Section 214 of the CPSIA sets forth a uniform class of
information to be included in mandatory recall notices. The final
rule's requirements are largely dictated by the statutory language.
Further, the Commission's interpretation of section 214 of the CPSIA is
not based on a scientific study, but rather on the culmination of the
Commission's and the staff's many years of experience conducting
product safety recalls. Because of the wide variety of consumer
products and industries that such recalls encompass, it is necessary to
allow flexibility to tailor recall notices to a specific target
consumer group, product, and hazard situation to effectively remove
hazardous products from the hands of consumers. The statute and the
final rule give the Commission and/or a court the flexibility to add or
remove requirements from a particular recall notice as necessary and
appropriate, keeping in mind the goal of increasing recall
effectiveness, and to help consumers identify products, understand the
product hazard, and understand any available remedy.
2. Section 1115.24--Applicability
Proposed Sec. 1115.24 would explain the requirements in subpart C
apply to manufacturers (including importers), retailers, and
distributors of consumer products. The preamble to the proposed rule
(see 74 FR at 11883) explained that the rule would not contain
requirements for recalls and recall notices that are voluntary and
result from corrective action settlement agreements with Commission
staff. The preamble to the proposed rule further noted that, if the
Commission decides to extend the requirements to voluntary recalls, it
would proceed with a separate rulemaking initiated by a separate notice
of proposed rulemaking.
Comment 11--Many commenters note the Commission's statement that
the proposed rule will apply to mandatory recall notices only and will
serve as a guideline for voluntary recalls unless and until the
Commission initiates a separate rulemaking to apply the requirements to
voluntary recalls.
Comments from individuals and consumer groups generally support the
extension of the mandatory notice requirements to voluntary recalls to
promote uniformity and consistency in providing consumers recall data
and to prevent firms from circumventing the requirements for a
mandatory recall notice by agreeing to a voluntary recall. One
commenter notes that voluntary recalls comprise the vast majority of
recalls and that the protections and information afforded by the
mandatory recall notice should be extended to consumers in voluntary
recall notices as well. Some commenters believe that consumer safety is
compromised by not using the same notice requirements for both
mandatory and voluntary recalls. One commenter states that the
mandatory recall notice requirements should at least be applied to
voluntary recall notices for ultrahazardous products.
Industry commenters are generally opposed to extending the
mandatory recall notice requirements to voluntary recall notices,
arguing that important differences exist between a mandatory and
voluntary recall. For example, one commenter states that, during a
voluntary recall, the firm and the CPSC staff have time to develop an
effective recall notice in a more positive environment. Depending on
the nature of the product and the harm, the same level of detail may
not be necessary for every recall to be helpful to consumers. These
commenters support the current system whereby the final notice
requirements are left for each specific recall situation working with
the staff. One commenter notes the success of the Fast Track program
and believes the Commission should continue to foster cooperation in
that program and only impose mandatory recall procedures when
absolutely required. Some commenters state that imposing mandatory
notice requirements will discourage firms from conducting voluntary
recalls, which is typically done to avoid the burdens of a mandatory
recall. Less voluntary recalls will lead to over-burdening the
Commission staff and resources.
A few commenters are concerned about the mandatory notice
requirements even serving as a guideline for a voluntary recall notice
and urge the Commission to withdraw this statement. One commenter
believes that a heightened level of importance should be associated
with mandatory recalls. Other commenters note that, even though the
Commission acknowledges that a separate rulemaking will be necessary to
extend the requirements to voluntary recalls, using the rule as a
guideline is essentially a distinction without a difference. One
commenter suggests that the Commission explicitly acknowledge in the
preamble that a voluntary recall notice will not need to meet all of
the guidelines for a mandatory recall notice in order to be approved
for voluntary corrective action.
Response--While the Commission may use the mandatory recall
requirements as a general guide for voluntary recall notices, we
recognize that a separate rule on voluntary recall notices is needed to
make these requirements uniform and required. The ultimate purpose of
every recall notice is to get dangerous products out of the hands of
consumers as quickly as possible, and each recall notice must be
negotiated with that goal in mind. The Commission still retains the
flexibility to work with firms to tailor voluntary recall notices to a
particular product and particular recall circumstance.
3. Section 1115.25--Definitions
Proposed Sec. 1115.25 would define ``recall,'' ``recall notice,''
``direct recall notice,'' and ``firm.''
Comment 12--One commenter suggests that the final rule define
``other
[[Page 3360]]
persons,'' who were mentioned in proposed Sec. 1115.26. The preamble
to the proposed rule explained that ``the term `other persons' would
include, but would not be limited to, consumer safety advocacy
organizations, public interest groups, trade associations, other State,
local and Federal government agencies, and the media.'' 74 FR at 11884.
Another commenter states that it is important to keep ``other persons''
in the rule to acknowledge that both governmental and non-governmental
entities are involved in the dissemination of information in the
interest of consumer safety.
Response--The Commission agrees that defining ``other persons'' in
the rule acknowledges the importance that both governmental and non-
governmental entities can play in the broad dissemination of consumer
product safety information. Accordingly, the final rule adds the
definition of ``other persons'' at Sec. 1115.25(e) as follows: ``Other
persons means, but is not limited to, consumer safety advocacy
organizations, public interest groups, trade associations, industry
advocacy organizations, other State, local, and Federal government
agencies, and the media.'' This definition is the same as set forth in
the preamble to the proposed rule, with the addition of ``industry
advocacy organizations,'' to demonstrate the broad range of entities
that assist in disseminating product safety information.
4. Section 1115.26--Guidelines and Policies
Proposed Sec. 1115.26 provides general guidance and describes the
policies pertaining to recall notices. The proposed guidelines would
restate the goals delineated in section 214 of the CPSIA. The CPSIA
requires the guidelines to include information helpful to consumers.
In general, proposed Sec. 1115.26(a) would state general
principles that are important for recall notices to be effective. For
example, proposed Sec. 1115.26(a)(1) would state that a recall notice
should provide information that enables consumers and other persons to
identify the product and take a stated action. Proposed Sec.
1115.26(a)(2) through (a)(4) would provide guidance on the form of the
recall notice, recognizing the various forms of notice and providing
guidance concerning direct recall notices and Web site recall notices.
Proposed Sec. 1115.26(a)(4) would recognize that a direct recall
notice is the most effective form of a recall notice, and proposed
Sec. 1115.26(b)(2) would state that when firms have contact
information they should issue direct recall notices.
Comment 13--Many comments discuss Sec. 1115.26(b)(2) on direct
recall notices and Sec. 1115.26(a)(4) which states that direct recall
notices are the most effective form of a recall notice. Overall,
individual consumer comments support the proposed rule with regard to
direct recall notices, suggesting that consumers tend to tune out
information not directed to them. One commenter notes that direct
recall notices have worked effectively in Illinois since 2006. A few
commenters suggest revising the rule to require firms to exhaust
resources and to send direct recall notices via every means possible
depending on the data they have, i.e., mail, electronic mail, and via
telephone. One commenter suggests requiring e-mail notification when a
firm has e-mail contact information. One commenter suggests asking
consumers to forward e-mail notices to people they know have an
interest in receiving the information in order to take advantage of
social networking abilities. However, another commenter suggests that,
because people ignore e-mails based on the large volume received,
direct regular mail notices and automated phone messages would be more
effective. Another commenter suggests that a direct recall notice be
required in all cases where a firm has contact information unless the
firm can prove by a preponderance of evidence that a direct recall
notice will not be as effective as other forms of a recall notice.
However, one commenter urges that direct recall notices should only
be required when a significant and imminent health and safety risk is
involved because of the costs involved in direct notice and because
over-warning can de-sensitize consumers. Moreover, section 15 of the
CPSA recognizes that the form of notice depends on the risk involved
and affords parties the opportunity for a hearing before the Commission
can order a number of actions.
Response--Direct recall notices are the most effective form of a
recall notice. 74 FR at 11886. The statement is based on the
Commission's experience that one of the most important aspects of
conducting a recall is to target recall notices to those consumers that
are more likely to have purchased the product at issue. Direct recall
notices have the advantage of reaching a large portion of the consuming
public that may have actually purchased the product. Even if the
product was not ultimately used by the purchaser, in the case of a
parent buying a product for a child or a consumer buying a gift, the
purchaser is in a good position to notify the product's user about the
recall. Ensuring that notice of the recall is provided in a timely
manner to the affected target audience is a major component of recall
effectiveness, and direct recall notices are a key advantage in the
recall process when this information is known. Moreover, the rule
recommends, but does not require, use of direct recall notices.
Assessing whether direct notice is necessary, appropriate, or possible
in a particular mandatory recall is best done on an individual basis.
Comment 14--One commenter advocates a clear delineation in the rule
with regard to responsibility for direct recall notices. This commenter
argues that manufacturers should never have responsibility for a direct
recall notice, but should have responsibility for broad dissemination
through other means. Direct notice responsibility should fall to the
product distributors and retailers that have such contact information.
Response--Determining which firms have responsibility for a recall
and disseminating recall notices is beyond the scope of the rule, which
solely relates to information categories required on a mandatory recall
notice.
Comment 15--Some commenters note the limitations of relying solely
on direct recall notices. One commenter states that direct recall
notices are not the best method of notifying consumers, and should
never be used as the sole method of notifying consumers because they
miss third party consumers that purchase products second-hand or
receive them as gifts. Considering the popularity of certain Web sites
that sell, re-sell, or auction consumer products, direct recall notices
could miss a large population of the consuming public. Additionally,
the general public has an interest in knowing about recalled products,
such that the recall strategy should be to reach the broadest possible
audience.
Response--The Commission agrees that a direct recall notice should
not be the sole form of recall notification because the purpose of a
recall notice is to reach the broadest possible audience of consumers
that may have purchased or received the products. Sole reliance on
direct recall notices ignores the fact that other persons may benefit
from receiving recall notices and assist in broad dissemination of
recall notices. The final rule acknowledges this by adding Sec.
1115.26(a)(5) stating that at least two of the recall notice forms
listed in subsection (b) should be used.
Comment 16--One commenter asks the Commission to clarify the rule
with regard to the factors for determining
[[Page 3361]]
when a firm actually has direct contact information. This commenter
states that firms have millions of bits of information, but being able
to track the information to a specific time frame and product is time
consuming and costly. Moreover, firms may have some information related
to the sale, i.e., credit card information, but may not have all
information without relying on a third party to match data, which can
also be time consuming and costly. The commenter urges that the rule
clarify that it only applies when accurate, up to date, contact
information is readily and practically available, and is in fact in the
firm's direct possession. Another commenter suggests adding ``telephone
number'' to the list of contact information, and to prioritize the
direct notice methods as follows: (1) Direct mail; (2) e-mail; and (3)
telephone.
Response--Assessing when a firm has possession of direct contact
information and when the information should be used is best done on an
individual basis because of the variety of information that firms or
third parties may possess. However, the final rule clarifies that ``[a]
direct recall notice should be used for each consumer for whom a firm
has direct contact information, or when such information is obtainable,
regardless of whether the information was collected for product
registration, sales records, catalog orders, billing records, marketing
purposes, warranty information, loyal purchaser clubs, or other such
purposes.'' The Commission or a court retains flexibility to determine
when a firm has direct contact information and when a direct recall
notice is appropriate. The final rule also clarifies that a telephone
number is considered direct contact information: ``[D]irect contact
information includes, but is not limited to, name and address,
telephone number, and electronic mail address.''
Comment 17--Some commenters are positive about the various methods
available for dissemination of information, but want the Commission to
make more than one form of notice mandatory. For example, one commenter
would require multiple forms of dissemination so that firms cannot rely
on a single press release and notice to retailers. Another commenter
suggests requiring firms to contact national and local media. Another
commenter is concerned that the rule does not require firms to ensure
that notices are actually received and not dismissed as spam or junk
mail and says requiring multiple dissemination methods would address
this problem. Several commenters would require the use of paid
advertisements, for example, where injuries and deaths have occurred.
Similarly, another commenter suggests that the recall notice be
required to be disseminated in the same manner as advertising and
promotion for the product.
Response--Section 1115.26(a)(5) in the final rule provides that
more than one form of recall notice should be used. The Commission
declines to provide for any certain type of notice for every recall in
the final rule. Recall notice forms may vary depending on the type of
hazard, the severity of the risk, and the nature and distribution of
the target audience. While circumstances will arise where paid
advertisements are warranted and the Commission's or a court's order
may require their use directed to certain target audiences, in certain
time frames and intervals, retaining flexibility and creativity to
adjust the forms of required recall notices to the specifics of each
case and to allow for technological advancements in recall notice forms
should be maintained.
Comment 18--Several comments support Sec. 1115.26(b)(3), stating
that a Web site recall notice should be prominent and clear on the
first entry point of a Web site, such as a home page, and be
interactive. Several commenters suggest making a Web site recall notice
a mandatory requirement when a firm maintains a Web site. One commenter
agrees that the information must be on the home page and urges the CPSC
not to allow firms to bury recall notices deep within a Web site. These
commenters support the idea of an interactive Web site that allows a
consumer to seek a remedy on-line.
However, one commenter opposes placing a recall notice on a firm's
home page and states that such a requirement goes beyond the CPSIA
mandate. This commenter argues that manufacturers and distributors post
Web site recall notices in a location where consumers have become
familiar with locating the information. This commenter urges that the
CPSC should not adopt a ``one-size fits all'' home page requirement and
that the decision should be based on the circumstances of each case.
Moreover, the requirement for an interactive Web site which allows a
consumer to request a remedy does not make sense in all cases. The
commenter gives the example of ATVs and RVs, which must be taken into
an independent dealer for repair. Because section 214 of the CPSIA does
not require an interactive Web site, the commenter would delete this
section from the final rule.
Response--The Commission agrees that product safety information
should not be buried in a firm's Web site. Since at least 2000, the
CPSC has provided guidance to firms to post recall notices prominently
on the home page of the firm's Web site. The Commission rejects the
proposition that the rule goes beyond the requirements of the CPSIA
with regard to providing an interactive Web site for recalls. First,
the guidelines and policies set forth in section 1115.26 of the final
rule are guidelines, not requirements. And, as reviewed above, section
214 of the CPSIA specifically provides that the Commission should
``include any information that the Commission determines would be
helpful to consumers'' to identify the product, understand the hazard,
and understand the proposed remedy. Although, for example, an ATV
cannot be exchanged through a Web site, a prominently placed Web site
recall notice that is interactive will expand the recall notice to the
relevant target audience, and increase recall effectiveness by helping
consumers with product identification, hazard identification and to
understand the nature of the remedy being offered. Moreover, if the
remedy is a repair, an interactive Web site can help consumers to
locate a dealer to make the necessary repair and/or arrange an
appointment for such repair at an appropriate dealer. While the content
and nature of Web site interactivity may be product and remedy
specific, the tool itself can be used in many ways to enhance consumer
understanding and recall effectiveness.
Comment 19--Comments generally support Sec. 1115.26(c), which
states that the Commission or a court may require that a recall notice
be in languages in addition to English ``when necessary or appropriate
to adequately inform and protect the public,'' but would set mandatory
criteria for recall notices in additional languages. For example, one
commenter states that the phrase ``necessary and appropriate'' requires
further clarification and an explanation of the criteria that will be
used. Another commenter urges the Commission to consider languages
likely used by consumers when reviewing and approving recall notices
and to insure that recall hotlines and on-line forms should be made
available in additional languages when the product was likely purchased
by non-English speaking consumers.
Several commenters note the current demographic situation in the
United States, stating that approximately 12% of the population speaks
Spanish, and suggest that the Commission require that all recall
notices be drafted in both English and Spanish. Another commenter
suggests requiring that all
[[Page 3362]]
recall notices be drafted in the top two or three other languages
spoken in the United States.
Moreover, several commenters opine that the rule should contain
criteria to help determine when recall notices in additional languages
should be required. Suggestions for criteria for a mandatory language
requirement include:
When product labeling is primarily in a language other
than English;
When product instructions are written in more than one
language; and
When a product is marketed in a language other than
English.
Finally, one commenter suggests that the Commission maintain a
``bank'' of standard recall information in other major languages spoken
in the United States to help reduce the costs of providing recall
notices in additional languages.
Response--The final rule clarifies when the Commission or a court
may order that a recall notice be made in languages in addition to
English by providing non-exhaustive examples. However, the Commission
and/or a court retain flexibility to tailor recall notices to
individual recall circumstances. Two criteria suggested by commenters
have been added as examples in the final rule: When the product
labeling is primarily in a language other than English and when a
product is marketed in a language other than English. Both examples
establish circumstances where it may be necessary or appropriate to
issue recall notices in additional languages in order to increase the
likelihood that audiences will understand the notices. The final rule,
at Sec. 1115.26(c), states one additional example: When a product is
marketed or available in a geographic area where English is not the
predominant language. This example demonstrates that even when a
product's marketing or labeling is in English, there may be
circumstances that arise in a mandatory recall scenario that still make
it appropriate to distribute recall notices in languages in addition to
English.
The Commission declines to adopt additional criteria in the final
rule that would not result in an efficient use of staff resources. For
example, insufficient information exists to impose a requirement that
every mandatory recall notice be made available in two or three
languages. Finally, maintaining a ``bank'' of standard recall
information in other languages is something the Commission may consider
doing as a matter of efficiency, but it is not within the scope of the
rule.
5. Section 1115.27--Recall Notice Content Requirements
Proposed Sec. 1115.27 would set forth the recall notice content
requirements specified in the CPSIA and would provide further details
where appropriate. For example, proposed Sec. 1115.27(a) would require
that a recall notice include the word ``recall'' in the heading and
text. As another example, proposed Sec. 1115.27(b) would require the
recall notice to contain the date of its release, issuance, posting, or
publication.
Comment 20--One commenter would have the rule address the sequence
of information found in a mandatory recall notice. The commenter would
have the most important information appear at the top of the notice
because it is more likely to be read. For example, the photograph of
the product should appear at the top of the notice under the ``recall''
heading. The commenter would use the following order: Description of
product hazard, type of hazard or risk, identification of retailers,
etc. This commenter also suggests that the rule address readability
issues, such as the use of bullet points over lengthy paragraphs.
Response--The Commission agrees that recall notices should be
written with the intent to aid readability and understanding by
consumers, but that this issue is best addressed on an individual,
case-by-case basis. In a mandatory recall situation, the Commission or
a court has control over the final form and content of a recall notice,
and can require such notices to conform to the standard format already
in use. The Commission declines to set a uniform sequence in the
current rulemaking because what represents the most critical recall
information may vary slightly depending on the circumstances
surrounding the recall.
Comment 21--One commenter suggests adding a ``Region'' provision to
mandatory recall notices to specify the geographic region in which the
product was made available in order to narrow down areas of concern
when a national retailer is involved. This commenter suggests that the
``Region'' should state whether the product was for sale on line, so
that a consumer understands when the geographic area may have been
broadened by Internet sales.
Response--When it is relevant, a specific geographic region where a
product is sold or offered for sale is typically included in a recall
notice. Although the proposed rule did not list ``region'' as part of
the recall notice content requirements, adding a separate ``region''
requirement to a mandatory recall notice could help to narrow the
geographic range for affected retailers and consumers (while not
narrowing the range for dissemination of a recall notice generally),
and would allow for a description of the region in situations where no
significant retailer is identified. Designation of a region may help
consumers to identify whether they have the product being recalled.
Accordingly, the final rule adds a requirement for ``Region'' as a new
Sec. 1115.27(j), which provides that ``[w]here necessary or
appropriate to assist consumers in determining whether they have the
product at issue, a description of the region where the product was
sold, or held for purposes of sale or distribution in commerce, must be
provided'' and has renumbered the remaining paragraphs accordingly.
Comment 22--Most commenters support Sec. 1115.27(a)'s requirement
to use the word ``recall'' in the heading and text of the notice. A few
commenters suggest use of the label ``Safety Recall'' in the heading to
alert consumers to a safety issue with regard to the product. One
commenter suggests using the term ``Urgent Recall'' in the heading
whenever there is a serious risk of death or loss of limb. This
commenter urges that the Commission use this designation to create a
more serious class of product recalls.
One commenter dislikes using the word ``recall'' in every notice,
arguing that it may be misleading and ``unnecessarily harmful to the
character of a product, manufacturer, importer, or retailer'' by
suggesting the harm is greater than it actually may be. This commenter
suggests using language from the ``action taken'' section, which the
commenter believes will be more accurate in describing the nature of
the recall at issue. At minimum, the commenter suggests using
``recall'' along with the ``action taken'' in the header so that
consumers can quickly and easily see the nature of the action being
taken with regard to the product.
Response--As a matter of Commission policy for consistency and
uniformity, use of the word ``recall'' is preferred because consumers
and other persons recognize the word ``recall'' as meaning that a
safety issue has arisen that requires action by the consumer. The
CPSC's position on the title of a recall notice has been in the Recall
Handbook for many years. The Commission does not agree that the
dissemination of a recall notice necessarily harms manufacturers. As
reviewed in the Recall Handbook, consumers no longer necessarily view
product recalls in a negative light and are, instead, more likely to
have a
[[Page 3363]]
negative view of a firm if it does not take responsibility for
conducting an effective recall. How well a company conducts a timely,
reasonable recall of a product may have a strong influence on
consumers' attitudes about the firm. Successful product recalls can
result in continuing consumer support and demand for the firm's
products.
While the Commission categorizes recalls, as set forth in the
Recall Handbook Section III, CPSC Evaluation of Section 15 Reports, the
Commission has avoided categorizing recall notices because it wants
consumers to review and respond to all recall notices. Consumers should
have the opportunity to read each notice and make an informed decision
regarding whether they have the product, whether the risk of injury
applies to them, how to avoid injury, and how to take advantage of any
remedy associated with the recall. Categorizing recalls by the severity
of risk may hinder the overall goal of recall effectiveness.
Comment 23--A few commenters agree with proposed Sec. 1115.27(c)'s
requirements pertaining to a description of the product. However, one
commenter suggests that it is unclear whether Sec. 1115.27(c)(1)
through (6) establishes requirements because the word ``must'' is not
used. This commenter suggests clarifying the rule so that firms know
whether all or some subset of these product identification guidelines
are required.
Response--Section 15(i)(2) of the CPSA requires that a mandatory
recall notice include a product description, including model numbers or
SKUs, common product name(s), and a photograph of the product. The
final rule is organized such that items in Sec. 1115.26 are guidelines
and policies, and items in Sec. 1115.27 are requirements. Accordingly,
Sec. 1115.27(c) provides that ``[a] recall notice must include a clear
and concise statement of the information that will enable consumers and
other persons to readily and accurately identify the specific product
and distinguish it from similar products. The information must enable
consumers to readily determine whether or not they have, or may be
exposed to, the product.'' The rule lists six types of descriptive
information relevant to product identification, including the fact that
a photograph ``must'' be included. The final rule clarifies that when
the information specified under this section is applicable to a
particular product, it must be included as part of the product
description: ``[T]o the extent applicable to a product, descriptive
information that must appear on a recall notice includes, but is not
limited to:'' The list is not exhaustive, however, and additional
product identification information may be required for a particular
recall notice.
Comment 24--Several comments would strengthen the remedy
requirements in proposed Sec. Sec. 1115.27(d) and (m). One commenter
observes that the remedy offered must be implementable by all parties.
The commenter notes that there have been several instances where a
manufacturer offered a remedy, such as a voucher or coupon, that was
not recognized by all retailers' computer systems when presented by a
consumer. Accordingly, consideration of different systems should be
given when providing a remedy and approval by the CPSC.
A few commenters suggest limiting a manufacturer's ability to
instruct consumers to discard products. They argue that this remedy
should be limited to situations where a firm has gone out of business
or the product is of nominal value. One commenter urges the Commission
to not approve any recall notice that does not include replacement,
repair, or refund of the purchase price as a remedy because consumers
will be less likely to comply without compensation as they do not want
to pay for the item twice. Finally, one commenter urges the Commission
to include a section for ``incentive'' or ``reward'' to inform
consumers about any additional incentives for the return of the
product, or state that ``none'' are being given.
Response--The nature of remedies approved as part of a corrective
action plan goes to the substance of a corrective action plan, which is
not at issue in the final rule. With regard to the suggestion to
include a category for a description of any recall incentive in a
mandatory recall notice, while the Commission generally encourages
firms to offer incentives for compliance with a recall, the Commission
declines to require a separate category for such information.
Incentives are properly part of the remedy being offered. An additional
category for incentives in every recall notice, even when an incentive
is not being offered, will lengthen the recall notice without improving
the overall effectiveness of the notice or providing new or different
information to help consumers understand the remedy being offered.
The Commission also notes that proposed Sec. 1115.27(m) is now
renumbered as Sec. 1115.27(n) in the final rule.
Comment 25--Proposed Sec. 1115.27(e) would require the recall
notice to state the approximate number of product units covered by the
recall, including all product units manufactured, imported, and/or
distributed in commerce. Several comments suggest clarifying Sec.
1115.27(e) by requiring a statement of the number of product units
included in a recall notice. A few commenters state that the rule
should only include products actually sold to consumers so that the
number does not include products that were never sold to any
distributor or retailer or are still in the hands of the manufacturer
and were never imported. The commenters believe that these products are
not subject to a recall and that it is inappropriate and beyond the
scope of the CPSIA to include in the number of units products that have
never been in the hands of consumers. Moreover, these commenters argue
that including such data is misleading and distorting of the number of
products actually subject to the recall and cannot be said to help
consumers identify a product, understand a product hazard, or obtain a
remedy.
One commenter suggests that product unit information is
unnecessary, unhelpful to the consumer, and is likely to overwhelm the
average consumer. According to this commenter, including product unit
information only serves to frustrate the purpose of understanding the
product's actual or potential hazard. This information could have a
negative effect on the firm, and media and other groups could
incorrectly focus on the number of products being recalled rather than
any actual threat of public harm.
Response--Section 15(i)(2)(C) of the CPSA requires that a mandatory
recall notice include ``[t]he number of units of the product with
respect to which the action is being taken.'' Accordingly, firms must
state product unit information in a mandatory recall notice pursuant to
the statute. The Commission's interpretation of this section of the
statute is consistent with past Commission practice for all recall
notices, as set forth in the Recall Handbook, which is to list all
units of a product manufactured, imported, and/or distributed in
commerce. As for those comments suggesting that products that are not
in the hands of consumers are not subject to a recall, the CPSC has
jurisdiction over all consumer products subject to a recall, and all
such products must be dealt with in a corrective action plan,
regardless of where the product is in the supply chain. For example, in
a mandatory recall situation, a manufacturer holding product could not
sell, modify, or destroy product without CPSC authorization. Stating
the number of product units involved informs consumers as to the scope
of a recall,
[[Page 3364]]
aids product identification, and increases recall effectiveness.
Comment 26--Many comments address proposed Sec. Sec. 1115.27(f)
and (l) regarding a description of substantial product hazard and a
description of the incidents, injuries and deaths. Several commenters
agree that requiring a mandatory recall notice to describe and state
the number of injuries and deaths is helpful to consumers and will
motivate them to comply with the recall. Many commenters, however,
state that specific information on injuries and deaths is unnecessary
and irrelevant, or suggest that the rule should be further clarified to
prevent the recall notice from becoming a lengthy, multi-paged
document. One commenter states that proposed Sec. 1115.27(f) exceeds
the scope of the intent of the CPSIA with regard to a description of
the substantial product hazard and reason for action. This information
may not be feasible for firms to provide and may be more misleading
than informative because a firm may not know all of this information at
the time of a recall. Further, several commenters state that reporting
death statistics is outside the purpose of a recall, will not help
consumers or their decision to participate in a recall, but will have
an adverse effect on retailers and producers.
Response--Sections 15(i)(2)(D) and (G) of the CPSA require that a
mandatory recall notice include ``[a] description of the substantial
product hazard and the reasons for the action,'' as well as ``[t]he
number and a description of any injuries or deaths associated with the
product, the ages of any individuals injured or killed, and the dates
on which the Commission received information about such injuries or
deaths.'' Accordingly, the statute and the final rule require both a
description of the substantial product hazard and specific information
on injuries and deaths, including the number, description and ages of
persons involved. However, recall notices will, by necessity, only
include information regarding a substantial product hazard and any
injuries or deaths that are known at the time of the recall notice.
The Commission also notes that it has renumbered Sec. 1115.27(l)
as Sec. 1115.27(m) in the final rule.
Comment 27--Some commenters request clarification on what
constitutes an injury that requires reporting, what the phrase
``associated with the product'' in proposed Sec. 1115.27(f) means,
what ``product conditions or circumstances'' can give rise to an injury
or death related to a product, and what a ``concise summary''
constitutes. For example, one commenter opines that the term ``injury''
should be defined to only include injuries which require medical
treatment, and to exclude minor injuries such as superficial scrapes
and bruises. This commenter states that defining ``injury'' will make
reporting consistent across recall notices. Another commenter states
that ``associated with the product'' language could be interpreted
broadly to require that all deaths or injuries be reported, even when
there may be other causes, such as gross negligence or use contrary to
warning labels. One commenter suggests that the rule address whether a
manufacturer must list any death or injury, however tangential, or may
qualify injuries where gross negligence and contrary use are involved.
Finally, one commenter believes that requiring detailed information on
injuries and deaths will expose firms to liability for acts that have
not been proven in court to be causally linked to the products without
providing any benefits to the consumer. Moreover, it could require
corporations to implicate themselves criminally or civilly, in
violation of the Fifth Amendment of the Constitution.
Response--With regard to the types of injuries required to be
reported on a recall notice, the Commission interprets the statutory
requirement consistent with past agency practice with regard to
reporting injuries on a recall notice, which is to include all
injuries, regardless of whether a consumer sought medical treatment,
where the consumer product is present at the time of the injury and may
have been a contributing factor.
A well-crafted recall notice does not necessarily subject a firm to
increased product liability. The Commission's mandate is public safety,
and effective recall notices can play an important role in enhancing
public safety. Allowing a defective product to stay on the market
without providing the public with timely hazard and recall information
would likely result in increased liability for non-compliant firms, not
only from potential civil and criminal penalties by the Commission, but
from product liability lawsuits as well. Finally, no concern exists
that providing information on injuries and deaths in a recall notice
impairs any Fifth Amendment right against self-incrimination, as the
Fifth Amendment protects individuals, not corporate entities. See,
e.g., Bellis v. United States, 417 U.S. 85, 88-90 (1974) (reviewing
history of decisions regarding the Fifth Amendment privilege and its
inapplicability to corporations and stating that no artificial
organization may utilize the personal privilege against self-
incrimination to avoid producing corporate documents).
Comment 28--Several comments would clarify the rule to allow
reporting of injuries and age ranges in the aggregate. These commenters
argue that reporting specific ages is not necessarily helpful for the
consumer to evaluate the risks involved. Moreover, if the rule is
interpreted to require a description of each injury and the age of each
person, this could turn the recall notice into a lengthy, multi-page
document that defeats the purpose of efficiently and effectively
identifying the product, explaining the hazard, and communicating a
remedy to consumers. Age ranges can be described in numbered ranges,
or, for example, as adult, child, infant. One commenter opines that the
number of injuries is not as important as the details of the injuries
and deaths, to distinguish minor injuries from other types of harm.
Response--Reporting of injuries and deaths, including the ages of
individuals injured or killed, is statutorily required in a mandatory
recall notice. Providing this information, however, need not result in
a lengthy recall notice. Consumers and firms can find numerous examples
of recall notices on the CPSC's Web site, and note that when age and
injury information is detailed, it does not result in lengthy,
unreadable recall notices. The Commission or a court retains the
flexibility to craft effective recall notices for particular recall
scenarios which are in the best interest of the consumer. The exact
wording of any recall notice cannot be done before the fact, and the
Commission declines to adopt a specific, one size fits all, approach to
how this information is presented for every recall notice. Firms should
anticipate that aggregation of age information will be required in
limited circumstances.
Comment 29--One commenter states that information regarding
injuries on exact dates can be considered confidential material
supplied to staff under section 15(b) of the CPSA. Including such
information in a recall notice would undermine confidentiality under
section 6(b) of the CPSA and otherwise. Another commenter notes that
the date of injury may be unrelated to when the consumer decides to
report the injury and how accurately the injury is characterized. One
commenter states that if the information must be provided, then the
Commission should at least allow firms to provide a range of dates
rather than exact dates, or a summary such as ``prior to the time of
this announcement.'' Another
[[Page 3365]]
commenter, however, agrees that the recall notices should include the
dates or date ranges when the Commission received information about
deaths or injuries, and suggests that the Commission further require
the dates or date ranges when the recalling firm received information
about deaths or injuries.
Response--Some commenters may misunderstand the statutory
requirement with regard to reporting dates related to injuries. Neither
the statute nor the rule require that a mandatory recall notice state
the actual date that an injury or death occurred, or the actual date
when a firm received information about an injury. Section 15(i)(2)(G)
of the CPSA requires that a mandatory recall notice include ``the dates
on which the Commission received information about such injuries or
deaths.'' (Emphasis added.) At minimum, a month and year must be
reported as to when the Commission received such information.
Accordingly, aggregation of the month and year may occur when necessary
or appropriate to shorten the information presented on a recall notice
while not sacrificing appropriate and statutorily required detail. For
example, if the Commission learns of three injuries on three separate
dates in a single month, a mandatory recall notice may provide the
month and year in which these injuries were reported, presenting
accurate information in a shortened format. However, the Commission or
a court retains the flexibility to order the use of exact dates or the
use of a range of dates by month and year, depending, among other
things, on the number of injuries and the risk involved, if it is more
helpful to consumers.
Comment 30--One commenter suggests that information on injuries and
deaths is a subpart of the section on substantial product hazard and
should be moved under that section.
Response--A description of the substantial product hazard and a
description of the associated injuries and deaths are separate
categories of information presented on a recall notice. Both the
statute and the final rule separate these categories of information.
See, e.g., sections 15(i)(2)(D) and (G) of the CPSA. The information
presented under substantial product hazard is a short, factual
statement regarding the actual or potential harm, i.e., choking,
laceration, drowning, while the number and description of injuries
reports actual injuries that have occurred. In some instances, for
example, the risk of injury for choking may be present, but no reported
injuries have occurred.
Comment 31--Many comments address Sec. 1115.27(h) regarding
identification of manufacturers on a mandatory recall notice. A few
comments are favorable, but many comments question the value of
identifying a foreign manufacturer, and suggest that this information
is confidential business information subject to trade secret
protection.
A few comments simply state that while the identification of
manufacturers may be helpful to the CPSC, it is not helpful to a
consumer and may be confusing with regard to who is responsible for the
recall. Several commenters opine that not only is the information
irrelevant to an effective recall and the stated goals of a recall
notice under section 214 of the CPSIA, but the identity of foreign
manufacturers is proprietary, confidential business information which
should only be required to be provided to the Commission under trade
secret protection. These commenters state that the CPSIA does not
require identification of a foreign manufacturer, and that the name of
the importer and country of origin should be sufficient. Moreover,
publishing the name of foreign manufacturers can cause significant harm
to a firm and is information not shared with competitors. Naming a
foreign manufacturer may cause confusion to consumers, and unfairly
place blame on foreign manufacturers when the problem, for example, may
actually be with the design of the product. Finally, one commenter
opines that information on the country of origin is not helpful to the
consumer and detracts from the overall effectiveness of a recall
notice. Such information may confuse consumers to believe that all
products manufactured in a country are dangerous.
Response--Section 15(i)(2)(E) of the CPSA requires that a mandatory
recall notice shall include ``[a]n identification of the manufacturers
* * * of the product.'' Section 3(a)(11) of the CPSA defines
``manufacturer'' as ``any person who manufactures or imports a consumer
product.'' The term ``manufactured'' means to ``manufacture, produce,
or assemble.'' Section 3(a)(10) of the CPSA. A consumer product
includes ``any article, or component part thereof, produced or
distributed'' for sale to consumers. Section 3(a)(5) of the CPSA. Thus,
any firm that manufactures, produces, assembles or imports a consumer
product, or any component part thereof, may be characterized as a
product manufacturer. As is often the case, a consumer product may have
more than one manufacturer. This fact is acknowledged both by the
statute, which employs the plural term ``manufacturers'' and the rule,
which provides that ``[a] recall notice must identify each manufacturer
(including importer) of the product and the country of manufacture.''
The identity of a foreign manufacturer is not a trade secret or
commercially sensitive information in every case. For example, many
voluntary recall notices issued in the past identify a foreign
manufacturer. In the context of a mandatory recall situation, whether
identification of a foreign manufacturer is indeed trade secret,
confidential information, and/or whether an exception to section 6 of
the CPSA applies, will necessarily be litigated in the judicial or
administrative proceeding. These issues require a fact-dependent,
individualized analysis in every case; it is not something that could
ever be decided broadly and apply to all manufacturers. To the extent
that section 6 of the CPSA is applicable, the Commission acknowledges
that it, and a firm, must comply with the law and any exceptions
thereto.
Comment 32--Another commenter opines that the rule is ambiguous as
to whether different information is required from foreign and domestic
manufacturers. The commenter would clarify the rule to state that a
recall notice must identify a domestic manufacturer's legal name, city,
and state of headquarters, or if a foreign manufacturer is involved,
identify the city and country of its headquarters (but omit the name of
the company). Another commenter agrees that the manufacturer name and
country of manufacture should be on the recall notice, but not the city
and state of the headquarters. This commenter does not see any added
benefit to the consumer to have this information.
Response--The rule anticipates that many consumer products have
both foreign and domestic manufacturers and importers, both of whom
must be identified. The rule requires all manufacturers to be
identified by their legal names. Additionally, domestic companies
should be identified by the city and state of their headquarters, and
foreign companies should be identified by the city and country of their
headquarters. The Commission agrees that the language in the proposed
rule was unclear with regard to what identifying information is
required for foreign manufacturers. The final rule clarifies that
foreign manufacturers must be identified by: (i) Legal name; (ii) city;
and (iii) country of headquarters.
[[Page 3366]]
Comment 33--One commenter suggests that the Commission require a
manufacturer's Web site address to be listed with the identification
information, in addition to name, trade name, city, and state, to
facilitate recall information dissemination and allow consumers to
access recall and remedy information via the company's Web site.
Response--The Commission declines to require that a manufacturer's
Web address be listed as identifying information in every mandatory
recall notice. A Web address for recall information is already provided
elsewhere on the recall notice. The manufacturer may or may not have a
Web site and may or may not be the firm in charge of a recall. The
Commission does not want consumers to be confused with regard to which
entity is responsible for the recall, or to deluge the wrong firm with
phone calls about a recall.
Comment 34--One commenter suggests excluding small importers that
are not the sole importer or retailer from any provision that allows
them to be characterized as a ``manufacturer'' or ``significant
retailer'' for purposes of a recall, because the burden on small
importers would be too great and they would not likely have the type of
information available to manufacturers and retailers to implement a
recall. However, another commenter observed that the burden on small
businesses should not be great because there are few mandatory recalls.
Response--Determining which firm is responsible for conducting a
recall is outside the scope of the final rule, which focuses on
guidelines and requirements for information categories to include in a
mandatory recall notice.
Comment 35--Many commenters request clarification of proposed Sec.
1115.27(i) with regard to identification of ``significant retailers,''
arguing that the rule is too vague regarding what criteria will be used
to determine a ``significant retailer.''
One commenter opines that singling out retailers does not help to
identify a product. This information is only relevant if the remedy is
to return the product to the retailer, or if there is only one
retailer. Moreover, several commenters prefer to keep the current
system whereby no specific retailer is named, and the firm can rely on
language such as ``sold at department store and retail stores
nationwide.''
Response--Section 15(i)(2)(E) of the CPSA requires that a mandatory
recall notice include ``[a]n identification of the * * * significant
retailers of the product.'' Thus, the statute requires the
identification of ``significant'' retailers but does not define
``significant.''
Comment 36--Several commenters believe the language regarding
``significant retailers'' should be expanded to include all retailers,
instead of just ``significant'' retailers. Many commenters state that
if only a few retailers are listed, consumers may be confused and
believe that their product is not at issue in the recall simply because
the retailer they purchased the product from is not listed. Moreover,
this scenario would leave out the majority of retailers where the
products were actually purchased and may compromise dissemination of
recall information to the majority of the consuming public. One
commenter suggests that, in order to keep the notice short, the
Commission should require the notice to state that the retailer list is
not exhaustive and to provide a Web site address where the consumer can
find an exhaustive list of retailers. Several commenters claim that,
because the definition of ``significant retailer'' is so vague, firms
will simply list all retailers to avoid non-compliance. These
commenters argue that a long list of retailers will increase the length
of the notice and make it difficult for consumers to obtain the
information required for an effective recall.
Response--Section 15(i)(2)(E) of the CPSA requires that a mandatory
recall notice identify significant retailers of the product. Although
the statute does not define ``significant,'' the Commission does not
read it to mean identification of all retailers. While the Commission
could identify all retailers on its Web site if it were in the interest
of public safety, it declines to do so in every mandatory recall
scenario. First, the statute requires identification of ``significant''
retailers, not all retailers. Second, it is unclear whether requiring
every mandatory recall notice to include an exhaustive list of
retailers on the CPSC Web site would increase recall effectiveness or
would be an efficient use of Commission resources. Such a requirement
may become burdensome with no added value to consumers. Finally,
listing significant retailers will not result in a lengthy recall
notice because the Commission retains the discretion to control the
substance, format, and organization of recall notices in the interest
of consumer safety and recall effectiveness.
Comment 37--Many commenters suggest that the concept of, and the
criteria for, ``significant retailer'' be clarified and that Sec.
1115.27(i)(5) should not contain a vague catch-all that allows the
Commission to find a retailer significant if it ``is in the public
interest.'' Many commenters request that the Commission set forth
criteria the Commission will consider in determining what is in the
public interest.
Response--The Commission's experience with recall notices and
identification of retailers is that such information helps consumers to
determine whether or not they may have the defective product.
Accordingly, the rule provides four circumstances under which
identifying a retailer may be helpful to consumers to identify a
product: (i) An exclusive retailer; (ii) a retailer that is also an
importer of the product; (iii) a retailer with national and/or
regionally located stores; and (iv) a retailer that holds or sold a
significant number of the defective products. The rule also provides
the Commission, or a court, with the flexibility to determine that
although a retailer may not fall into one of the four enumerated
categories, circumstances may arise whereby designation of the retailer
as ``significant'' for a particular mandatory recall would help
consumers identify the product. The final rule maintains this
flexibility because: (i) It is not possible to anticipate every
circumstance where listing a particular retailer may become helpful to
consumers beforehand; and (ii) the Commission, under sections 15(c) and
(d) of the CPSA, and a court, pursuant to section 12 of the CPSA,
already have final authority over the form and content of mandatory
recall notices. Such authority is not altered by section 15(i) of the
CPSA and the Commission declines to do so in the final rule.
Comment 38--Some commenters state that the Commission failed to
define ``regional retailer,'' or ``regionally-located.'' Accordingly,
these commenters argue that the rule is too vague.
Response--The term ``regional'' should be understood based on its
ordinary and customary usage. For example, a regional chain could be
located in one region of the state of California, it could comprise
affiliated stores existing in an entire state, or it could comprise
affiliated stores located in a group of states, or finally, stores
located in one or more regions of the United States.
Comment 39--Some commenters note that there are many situations
where regional chains or ``mom and pop'' stores sell the majority of
the products and collectively outsell a national retailer, but the
national retailer may end up being named as a ``significant retailer''
because, compared to any one store, it may have sold more products.
Several commenters observe that the rule, as
[[Page 3367]]
proposed, will likely result in a small number of national retailers
being named in virtually every recall notice, which will dilute the
purpose of the information. One commenter suggests addressing this
problem by changing Sec. 1115.27(i)(4) from ``a significant number of
the total manufactured'' to ``a majority of the total manufactured.''
This commenter believes that naming one retailer where a majority of
the products were sold would be more helpful to the consumer than
listing every ``significant retailer.''
Response--With regard to the idea that listing some, but not all,
retailers will cause consumer confusion, this has not been the
Commission's experience. For example, a recall notice can list major
retail outlets, but also explain that the list of retailers is not
exhaustive. In a situation where Store A sold 40% of the defective
product and more than 50 smaller home centers and hardware stores sold
the remaining 60%, a recall notice could employ additional, helpful
language describing the types of stores where the product was sold
without causing the notice to become unduly long and unreadable:
``Product was sold nationwide at Store A and at home centers and
hardware stores nationwide.''
The Commission declines to adopt the suggestion that the required
statutory term ``significant'' be modified to mean a ``majority'' of
the products. The statute itself requires identification of
``significant'' retailers. Many situations arise where there may be two
or three retailers that sell 60% to 80% of the products. While no
retailer individually sold a majority of the products, listing these
retailers is helpful to consumers to determine whether or not they may
have the defective product.
Comment 40--One commenter would expand the description of retailers
to include contractors, so that contractors must notify consumers when
the materials were used in building projects. The commenter cited, as
an example, the drywall situation, where the nature of the product
makes it difficult for consumers to discern whether the defective
product is in their home.
Response--The Commission declines to include the term
``contractors'' in the description of retailers, but this does not
preclude the fact that there may be situations when contractors may be
considered to be retailers. Even if the Commission were to include
contractors in the description of retailers, it would not address the
commenter's primary concern that contractors notify homeowners about
the materials used in building projects. The statute at issue here,
section 15(i) of the CPSA, does not impose any specific obligation on a
retailer to notify consumers. Being listed as a ``significant
retailer'' does not create any obligation on the part of retailers so
listed; the information is present solely to assist consumers with
product identification.
Comment 41--One commenter opines that the dates of manufacture and
sale under proposed Sec. 1115.27(j) (now renumbered as Sec.
1115.27(k) in the final rule) are too expansive. Manufacturers date
code products by the date of manufacture, not the date of sale.
Manufacturers often do not know the date a product first hits retail
shelves. Providing more than manufacturing dates may be confusing to
consumers. The current system of citing manufacturing dates by date
code, or date of sale if known, has been successful.
Response--Section 15(i)(2)(F) of the CPSA requires that a mandatory
recall notice include ``[t]he dates between which the product was
manufactured and sold.'' The statute thus requires both the dates of
manufacture and the dates of sale. If a manufacturer does not have this
information, it is expected that, where available, it may be provided
by retailers or distributors.
Comment 42--A few commenters suggest expanding the price
requirement in proposed Sec. 1115.27(k) (now renumbered as Sec.
1115.27(l) in the final rule). One commenter would require suggested
retail price, prices known to the manufacturer, and the highest and
lowest retail price known. Another commenter suggests that the
approximate price range is not helpful enough, and that the price range
should be made specific for geographic locations.
One commenter opines that a price should only be required when the
remedy is a purchase price refund. Otherwise, this information is
unhelpful and clutters the recall notice.
Response--The Commission typically requires approximate price
information in all recall notices to assist with product
identification. We decline to require every price known to the
manufacturer in every mandatory recall notice; the approximate price
range is sufficient for product identification purposes, and to assist
the consumer in understanding what the price refund may be. Further,
providing a price range for each specific geographic location in every
recall situation is not always practical. It is unclear whether such
information will add sufficient value to the recall notice to offset
the use of resources in every recall situation. The Commission retains
the flexibility, however, to require more information on price if it
would assist consumers.
Comment 43--One commenter states that proposed Sec. 1115.27(n)
(now renumbered as Sec. 1115.27(o) in the final rule) regarding
``other information'' that the Commission or a court may deem
appropriate for inclusion in a recall notice should state what types of
additional information may be required to put firms on notice. The
commenter argues that without such clarification an aggrieved party may
later argue that a requirement placed on it is burdensome and not
contemplated by the rule. Accordingly, the commenter suggests that the
rule clarify that Sec. 1115.27 is exhaustive as can be currently
contemplated, but that other requirements will be included as the
situation demands. At a minimum, the rule should state that future
requirements will be based on a fair assessment of the situation.
Response--Section 15(i)(2)(I) of the CPSA provides that a mandatory
recall notice must include ``[o]ther information the Commission deems
appropriate.'' Moreover, when a mandatory recall notice is ordered by a
court or the Commission, it has authority over the final form and
content of the recall notice and can require additional information
deemed appropriate in particular cases pursuant to sections 12, 15(c)
and 15(d) of the CPSA. Thus, the authority to include any other
information the Commission deems appropriate in a mandatory recall
notice does not solely originate from section 15(i) of the CPSA. The
rule reflects the Commission or a court's inherent authority with
regard to the form and content of mandatory recall notices, and the
Commission declines to limit its own authority in the rule.
6. Section 1115.28--Multiple Products or Models
Proposed Sec. 1115.28 would require the notice for each product or
model covered by a recall notice to meet the requirements of this
subpart.
We received no comments on this provision and have finalized it
without change.
7. Section 1115.29--Final Determination Regarding Form and Content
Comment 44--Most commenters support Sec. 1115.29 which states that
the Commission or the Court has the final determination as to the form
and content of a recall notice. Consumer groups, in particular, support
this rule to level the influence that firms have traditionally had over
form and content. One commenter suggests imposing a
[[Page 3368]]
deadline on firms for disseminating the recall notice after Commission
approval and immediate posting on the CPSC's Web site after approval.
One commenter, however, feels that the rule is vague and allows the
CPSC excessive discretion with regard to recall form and content. This
commenter suggests more specificity and criteria be inserted into the
rule to create more uniform expectations for firms. Another commenter
suggests imposing a deadline on the Commission's approval process, and
allowing firms to disseminate a recall notice if the Commission has not
rejected or approved the proposed recall notice within the time frame
in order to get recall information out to the public as soon as
possible.
Response--The Commission and/or a court have statutory authority to
control the final form and content of mandatory recall notices.
Mandatory recall notices must be approved by the Commission before they
are disseminated. Sections 15(c)(1) and 15(d)(2) of the CPSA. Nothing
in section 15(i) of the CPSA or the final rule changes this control;
the statute merely requires that the Commission provide guidance on a
uniform set of information that firms can expect to find in a mandatory
recall notice, as well as sets forth certain requirements for mandatory
recall notices which can be altered by the Commission in particular
recall scenarios as necessary or appropriate. Thus, the date of
dissemination by both the CPSC and the firm is directed by the CPSC,
and the CPSC posts all recall press notices on its Web site at http://www.CPSC.gov after approval by the Commission.
IV. Environmental Impact
Generally, the Commission's regulations are considered to ``have
little or no potential for affecting the human environment,'' and
environmental assessments and impact statements are not usually
prepared. See 16 CFR 1021.5(c). The final rule establishes requirements
and guidelines for mandatory recall notices is not expected to have an
adverse impact on the environment. Thus, the Commission concludes that
no environmental assessment or environmental impact statement is
required in this proceeding.
V. Paperwork Reduction Act of 1995
The rule does not impose information collection requirements.
Rather, the rule sets forth a uniform set of information categories
that are either statutorily required or provided as guidelines by the
Commission for use in recall notices that are ordered by the Commission
or a United States district court in individual enforcement actions
under sections 12, 15(c) or 15(d) of the CPSA. Additionally, under 5
CFR 1320.4(a)(2), the Paperwork Reduction Act requirements do not apply
to collections of information ``during the conduct of a civil action to
which the United States or any official or agency thereof is a party,
or during the conduct of an administrative action * * * against
specific individuals or entities.'' Accordingly, it is not subject to
the Paperwork Reduction Act, 44 U.S.C. 3501 through 3520.
VI. Executive Order 12988
According to Executive Order 12988 (February 5, 1996), agencies
must state in clear language the preemptive effect, if any, of new
regulations. The requirements and guidelines contained in the rule do
not impact the States, as they only apply to mandatory recalls ordered
by the Commission or a United States district court. Moreover, section
26 of the CPSA with regard to preemption only addresses the preemptive
effect of consumer product safety standards under the CPSA. The current
rule is not a consumer product safety standard under the Act.
Accordingly, the Commission has determined that this rule does not
contain requirements or guidelines that impact the States.
VII. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA'') generally requires that
agencies review proposed rules for their potential economic impact on
small entities, including small businesses. Section 603 of the RFA
calls for agencies to prepare and make available for public comment an
initial regulatory flexibility analysis describing the impact of the
proposed rule on small entities and identifying impact-reducing
alternatives. 5 U.S.C. 603. Section 605(b) of the RFA, however, states
that this requirement does not apply if the head of the agency
certifies that the rule will not, if promulgated, have a significant
economic impact on a substantial number of small entities, and the
agency provides an explanation for that conclusion.
This final rule will have little or no effect on small businesses.
First, this rule consists of guidelines (which do not require a
regulatory flexibility analysis) and recall notice content requirements
that are largely dictated by the CPSIA. Second, these guidelines and
requirements apply in the context of an administratively adjudicated
order to a specific party to issue a recall notice. Such mandatory
recalls have occurred infrequently in the Commission's history.
Finally, the substantive authority for a court or the Commission to
order that a mandatory recall notice issue comes from existing law,
sections 12, 15(c) and 15(d) of the CPSA, rather than the final rule.
Therefore, the Commission concludes that the final rule will not have a
significant economic impact on a substantial number of small entities.
VIII. Effective Date
In the preamble to the proposed rule, the Commission indicated that
the final rule would be effective upon publication in the Federal
Register based upon good cause shown (74 FR 11885). However, in its
vote to approve the issuance of the final rule, the Commission voted to
follow the APA standard, codified at 5 U.S.C. 553(d), such that the
effective date of the final rule is 30 days after publication in the
Federal Register.
List of Subjects in 16 CFR Part 1115
Administrative practice and procedure, Business and industry,
Consumer protection, Reporting and recordkeeping requirements.
0
For the reasons stated above, the Commission amends chapter II of title
16 of the Code of Federal Regulations as follows:
PART 1115--SUBSTANTIAL PRODUCT HAZARD REPORTS
0
1. The authority citation for part 1115 continues to read as follows:
Authority: 15 U.S.C. 2061, 2064, 2065, 2066(a), 2068, 2069,
2070, 2071, 2073, 2076, 2079, and 2080.
0
2. Add a new Subpart C to read as follows:
Subpart C--Guidelines and Requirements for Mandatory Recall Notices
Sec.
1115.23 Purpose.
1115.24 Applicability.
1115.25 Definitions.
1115.26 Guidelines and policies.
1115.27 Recall notice content requirements.
1115.28 Multiple products or models.
1115.29 Final determination regarding form and content.
Subpart C--Guidelines and Requirements for Mandatory Recall Notices
Sec. 1115.23 Purpose.
(a) The Commission establishes these guidelines and requirements
for recall notices as required by section 15(i) of the Consumer Product
Safety Act, as amended (CPSA) (15 U.S.C. 2064(i)). The guidelines and
requirements set
[[Page 3369]]
forth the information to be included in a notice required by an order
under sections 12, 15(c), or 15(d) of the CPSA (15 U.S.C. 2061,
2064(c), or 2064(d)). Unless otherwise ordered by the Commission under
section 15(c) or (d) of the CPSA (15 U.S.C. 2064(c) or (d)), or by a
United States district court under section 12 of the CPSA (15 U.S.C.
2061), the content information required in this subpart must be
included in every such notice.
(b) The Commission establishes these guidelines and requirements to
ensure that every recall notice effectively helps consumers and other
persons to:
(1) Identify the specific product to which the recall notice
pertains;
(2) Understand the product's actual or potential hazards to which
the recall notice pertains, and information relating to such hazards;
and
(3) Understand all remedies available to consumers concerning the
product to which the recall notice pertains.
Sec. 1115.24 Applicability.
This subpart applies to manufacturers (including importers),
retailers, and distributors of consumer products as those terms are
defined herein and in the CPSA.
Sec. 1115.25 Definitions.
In addition to the definitions given in section 3 of the CPSA (15
U.S.C. 2052), the following definitions apply:
(a) Recall means any one or more of the actions required by an
order under sections 12, 15(c), or 15(d) of the CPSA (15 U.S.C. 2061,
2064(c), or 2064(d)).
(b) Recall notice means a notification required by an order under
sections 12, 15(c), or 15(d) of the CPSA (15 U.S.C. 2061, 2064(c), or
2064(d)).
(c) Direct recall notice means a notification required by an order
under sections 12, 15(c), or 15(d) of the CPSA (15 U.S.C. 2061,
2064(c), or 2064(d)), that is sent directly to specifically-identified
consumers.
(d) Firm means a manufacturer (including an importer), retailer, or
distributor as those terms are defined in the CPSA.
(e) Other persons means, but is not limited to, consumer safety
advocacy organizations, public interest groups, trade associations,
industry advocacy organizations, other State, local, and Federal
government agencies, and the media.
Sec. 1115.26 Guidelines and policies.
(a) General. (1) A recall notice should provide sufficient
information and motivation for consumers and other persons to identify
the product and its actual or potential hazards, and to respond and
take the stated action. A recall notice should clearly and concisely
state the potential for injury or death.
(2) A recall notice should be written in language designed for, and
readily understood by, the targeted consumers or other persons. The
language should be simple and should avoid or minimize the use of
highly technical or legal terminology.
(3) A recall notice should be targeted and tailored to the specific
product and circumstances. In determining the form and content of a
recall notice, the manner in which the product was advertised and
marketed should be considered.
(4) A direct recall notice is the most effective form of a recall
notice.
(5) At least two of the recall notice forms listed in subsection
(b) should be used.
(b) Form of recall notice--(1) Possible forms. A recall notice may
be written, electronic, audio, visual, or in any other form ordered by
the Commission in an order under section 15(c) or (d) of the CPSA (15
U.S.C. 2064(c) or (d)), or by a United States district court under
section 12 of the CPSA (15 U.S.C. 2061). The forms of, and means for
communicating, recall notices include, but are not limited to:
(i) Letter, Web site posting, electronic mail, RSS feed, or text
message;
(ii) Computer, radio, television, or other electronic transmission
or medium;
(iii) Video news release, press release, recall alert, Web stream,
or other form of news release;
(iv) Newspaper, magazine, catalog, or other publication; and
(v) Advertisement, newsletter, and service bulletin.
(2) Direct recall notice. A direct recall notice should be used for
each consumer for whom a firm has direct contact information, or when
such information is obtainable, regardless of whether the information
was collected for product registration, sales records, catalog orders,
billing records, marketing purposes, warranty information, loyal
purchaser clubs, or other such purposes. Direct contact information
includes, but is not limited to, name and address, telephone number,
and electronic mail address. Forms of direct recall notice include, but
are not limited to, United States mail, electronic mail, and telephone
calls. A direct recall notice should prominently show its importance
over other consumer notices or mail by including ``Safety Recall'' or
other appropriate terms in an electronic mail subject line, and, in
large bold red typeface, on the front of an envelope and in the body of
a recall notice.
(3) Web site recall notice. A Web site recall notice should be on a
Web site's first entry point such as a home page, should be clear and
prominent, and should be interactive by permitting consumers and other
persons to obtain recall information and request a remedy directly on
the Web site.
(c) Languages. Where the Commission for purposes of an order under
section 15(c) or (d) of the CPSA (15 U.S.C. 2064(c) or (d)), or a
United States district court for purposes of an order under section 12
of the CPSA (15 U.S.C. 2061), determines that it is necessary or
appropriate to adequately inform and protect the public, a recall
notice may be required to be in languages in addition to English. For
example, it may be necessary or appropriate to require a recall notice
be in a language in addition to English when a product label is in a
language in addition to English, when a product is marketed in a
language in addition to English, or when a product is marketed or
available in a geographic location where English is not the predominant
language.
Sec. 1115.27 Recall notice content requirements.
Except as provided in Sec. 1115.29, every recall notice must
include the information set forth below:
(a) Terms. A recall notice must include the word ``recall'' in the
heading and text.
(b) Date. A recall notice must include its date of release,
issuance, posting, or publication.
(c) Description of product. A recall notice must include a clear
and concise statement of the information that will enable consumers and
other persons to readily and accurately identify the specific product
and distinguish it from similar products. The information must enable
consumers to readily determine whether or not they have, or may be
exposed to, the product. To the extent applicable to a product,
descriptive information that must appear on a recall notice includes,
but is not limited to:
(1) The product's names, including informal and abbreviated names,
by which consumers and other persons should know or recognize the
product;
(2) The product's intended or targeted use population (e.g.,
infants, children, or adults);
(3) The product's colors and sizes;
(4) The product's model numbers, serial numbers, date codes, stock
keeping unit (SKU) numbers, and tracking labels, including their exact
locations on the product;
[[Page 3370]]
(5) Identification and exact locations of product tags, labels, and
other identifying parts, and a statement of the specific identifying
information found on each part; and
(6) Product photographs. A firm must provide photographs. Each
photograph must be electronic or digital, in color, of high resolution
and quality, and in a format readily transferable with high quality to
a Web site or other appropriate medium. As needed for effective
notification, multiple photographs and photograph angles may be
required.
(d) Description of action being taken. A recall notice must contain
a clear and concise statement of the actions that a firm is taking
concerning the product. These actions may include, but are not limited
to, one or more of the following: Stop sale and distribution in
commerce; recall to the distributor, retailer, or consumer level;
repair; request return and provide a replacement; and request return
and provide a refund.
(e) Statement of number of product units. A recall notice must
state the approximate number of product units covered by the recall,
including all product units manufactured, imported, and/or distributed
in commerce.
(f) Description of substantial product hazard. A recall notice must
contain a clear and concise description of the product's actual or
potential hazards that result from the product condition or
circumstances giving rise to the recall. The description must enable
consumers and other persons to readily identify the reasons that a firm
is conducting a recall. The description must also enable consumers and
other persons to readily identify and understand the risks and
potential injuries or deaths associated with the product conditions and
circumstances giving rise to the recall. The description must include:
(1) The product defect, fault, failure, flaw, and/or problem giving
rise to the recall; and
(2) The type of hazard or risk, including, by way of example only,
burn, fall, choking, laceration, entrapment, and/or death.
(g) Identification of recalling firm. A recall notice must identify
the firm conducting the recall by stating the firm's legal name and
commonly known trade name, and the city and state of its headquarters.
The notice must state whether the recalling firm is a manufacturer
(including importer), retailer, or distributor.
(h) Identification of manufacturers. A recall notice must identify
each manufacturer (including importer) of the product and the country
of manufacture. Under the definition in section 3(a)(11) of the CPSA
(15 U.S.C. 2052(a)(11)), a manufacturer means ``any person who
manufactures or imports a consumer product.'' If a product has been
manufactured outside of the United States, a recall notice must
identify the foreign manufacturer and the United States importer. A
recall notice must identify the manufacturer by stating the
manufacturer's legal name and the city and state of its headquarters,
or, if a foreign manufacturer, the foreign manufacturer's legal name
and the city and country of its headquarters.
(i) Identification of significant retailers. A recall notice must
identify each significant retailer of the product. A recall notice must
identify such a retailer by stating the retailer's commonly known trade
name. Under the definition in section 3(a)(13) of the CPSA (15 U.S.C.
2052(a)(13)), a retailer means ``a person to whom a consumer product is
delivered or sold for purposes of sale or distribution by such person
to a consumer.'' A product's retailer is ``significant'' if, upon the
Commission's information and belief, and in the sole discretion of the
Commission for purposes of an order under section 15(c) or (d) of the
CPSA (15 U.S.C. 2064(c) or (d)), or in the sole discretion of a United
States district court for purposes of an order under section 12 of the
CPSA (15 U.S.C. 2061), any one or more of the circumstances set forth
below is present (the Commission may require manufacturers (including
importers), retailers, and distributors to provide information relating
to these circumstances):
(1) The retailer was the exclusive retailer of the product;
(2) The retailer was an importer of the product;
(3) The retailer has stores nationwide or regionally-located;
(4) The retailer sold, or held for purposes of sale or distribution
in commerce, a significant number of the total manufactured, imported,
or distributed units of the product; or
(5) Identification of the retailer is in the public interest.
(j) Region. Where necessary or appropriate to assist consumers in
determining whether they have the product at issue, a description of
the region where the product was sold, or held for purposes of sale or
distribution in commerce, must be provided.
(k) Dates of manufacture and sale. A recall notice must state the
month and year in which the manufacture of the product began and ended,
and the month and year in which the retail sales of the product began
and ended. These dates must be included for each make and model of the
product.
(l) Price. A recall notice must state the approximate retail price
or price range of the product.
(m) Description of incidents, injuries, and deaths. A recall notice
must contain a clear and concise summary description of all incidents
(including, but not limited to, property damage), injuries, and deaths
associated with the product conditions or circumstances giving rise to
the recall, as well as a statement of the number of such incidents,
injuries, and deaths. The description must enable consumers and other
persons to readily understand the nature and extent of the incidents
and injuries. A recall notice must state the ages of all persons
injured and killed. A recall notice must state the dates or range of
dates on which the Commission received information about injuries and
deaths.
(n) Description of remedy. A recall notice must contain a clear and
concise statement, readily understandable by consumers and other
persons, of:
(1) Each remedy available to a consumer for the product conditions
or circumstances giving rise to the recall. Remedies include, but are
not limited to, refunds, product repairs, product replacements,
rebates, coupons, gifts, premiums, and other incentives.
(2) All specific actions that a consumer must take to obtain each
remedy, including, but not limited to, instructions on how to
participate in the recall. These actions may include, but are not
limited to, contacting a firm, removing the product from use,
discarding the product, returning part or all of the product, or
removing or disabling part of the product.
(3) All specific information that a consumer needs in order to
obtain each remedy and to obtain all information about each remedy.
This information may include, but is not limited to, the following:
Manufacturer, retailer, and distributor contact information (such as
name, address, telephone and facsimile numbers, e-mail address, and Web
site address); whether telephone calls will be toll-free or collect;
and telephone number days and hours of operation including time zone.
(o) Other information. A recall notice must contain such other
information as the Commission for purposes of an order under section
15(c) or (d) of the CPSA (15 U.S.C. 2064(c) or (d)), or a United States
district court for purposes of an order under section 12 of the CPSA
(15 U.S.C. 2061), deems appropriate and orders.
[[Page 3371]]
Sec. 1115.28 Multiple products or models.
For each product or model covered by a recall notice, the notice
must meet the requirements of this subpart.
Sec. 1115.29 Final determination regarding form and content.
(a) Commission or court discretion. The recall notice content
required by this subpart must be included in a recall notice whether or
not the firm admits the existence of a defect or of an actual or
potential hazard, and whether or not the firm concedes the accuracy or
applicability of all of the information contained in the recall notice.
The Commission will make the final determination as to the form and
content of the recall notice for purposes of an order under section
15(c) or (d) of the CPSA (15 U.S.C. 2064(c) or (d)), and a United
States district court will make the final determination as to the form
and content of a recall notice for purposes of an order under section
12 of the CPSA (15 U.S.C. 2061).
(b) Recall notice exceptions. The Commission for purposes of an
order under section 15(c) or (d) of the CPSA (15 U.S.C. 2064(c) or
(d)), or a United States district court for purposes of an order under
section 12 of the CPSA (15 U.S.C. 2061), may determine that one or more
of the recall notice requirements set forth in this subpart is not
required, and will not be included, in a recall notice.
(c) Commission approval. Before a firm may publish, broadcast, or
otherwise disseminate a recall notice to be issued pursuant to an order
under section 15(c) or (d) of the CPSA (15 U.S.C. 2064(c) or (d)), the
Commission must review and agree in writing to all aspects of the
notice.
Dated: January 13, 2010.
Todd A. Stevenson,
Secretary, United States Consumer Product Safety Commission.
[FR Doc. 2010-873 Filed 1-20-10; 8:45 am]
BILLING CODE 6355-01-P