Headshot of Patrick FurbushThe free market has an incredible ability to regulate itself; businesses have incentives to make their products safe and reliable or risk that consumers will shop elsewhere. However, potentially dangerous products still reach the market despite such incentives. Both the Consumer Product Safety Commission (CPSC) and the National Highway Traffic Safety Administration (NHTSA) work to address those market failures and inform the public about the safety of products under their jurisdiction. This article looks at the rules governing each agency’s ability to share information about dangerous products and take action to require their removal from the marketplace as well as recent congressional and state attorney general activity concerning potentially dangerous products.

The Creation of the CPSC and NHTSA

In 1970, Congress created the National Highway Traffic Safety Administration (NHTSA) to help reduce the number of injuries from motor vehicle crashes.1 NHTSA, an agency within the Department of Transportation, regulates the safety of motor vehicles and related equipment, such as tires and car seats.2

Shortly thereafter, in 1972, Congress, having found there to be “an unacceptable number of consumer products which present unreasonable risks of injury,” passed the Consumer Product Safety Act to both protect the public against these risks and to “assist consumers in evaluating the comparative safety of consumer products.”3 This law, codified at 15 U.S.C. § 1501, et seq., created the Consumer Product Safety Commission and gave it the responsibility of protecting the public against unreasonable risks of injuries and deaths associated with over 15,000 types of consumer products.4

How the Agencies Disclose Information About the Safety of Products

Required reporting of defective products

The two agencies approach their mission to protect the public in similar ways. For example, each has mechanisms for obtaining and sharing information about product defects affecting consumers’ safety. Both organizations collect consumer complaints and conduct independent investigative research regarding the safety of specific products.5 If a manufacturer is aware of a safety issue with their product, the CPSC and NHTSA both require that the problem be reported to the appropriate agency. For example, if a manufacturer of automobile parts knows that their product has a safety defect or violates a NHTSA safety standard, 49 CFR § 573.6 requires the manufacturer to inform NHTSA about the product and the specific defect.6 Likewise, 15 U.S.C. § 2064 states that any consumer product manufacturer aware that their product violates a CPSC regulation or voluntary safety standard relied on by the agency, or creates a substantial risk of serious injury or death, must inform the CPSC.7

CPSC’s Authority to Publicize Defective Product Information

To share information about product safety, the CPSC publishes a database for consumer product injury statistics and a database on products that have been recalled8 and have violated mandatory standards.9 For injury statistics, the CPSC has reports sorted by product category and hazard type. The reports contain a description of the product, information on how the product may cause an injury and how such injuries may be prevented.10 For the database of products that have violated standards, the agency releases data regarding the injury, the name of the product and manufacturer, as well as other information the CPSC considers in the public interest.11 The CPSC also can, and does, issue periodic press releases regarding products that pose a risk of injury.12

However, if a hazardous product does not violate a mandatory standard, section 6(b) of the Consumer Product Safety Act restricts the CPSC’s ability to share information. For example, although the CPSC can warn the public about a hazardous category of products, the agency must give the manufacturer 15 days to mark certain information as confidential before it publicly discloses “any information which will permit the public to ascertain readily the identity of a particular manufacturer or private labeler or the identify of a particular consumer product.”13 While the CPSC can determine a shorter period of time is necessary to protect public health and safety, information marked by the manufacturer as confidential may not be disclosed to the public.14 The manufacturer can then supplement the CPSC’s press release with their own comments, or object to the release of the information.10 The company may also bring an action in federal court before the release of the information and apply for a stay. If challenged in court, the CPSC’s press release cannot be issued until the court has ruled on the application for a stay.10 These limitations on the CPSC’s ability to share information about products it considers dangerous have been the source of considerable criticism and concern from consumer advocates and public officials, including members of Congress.15

Section 6(b) is controversial even among CPSC officials. In a 2019 congressional hearing, Elliot Kaye, former Chairman and a current Commissioner of the CPSC, stated “We need the anti-consumer safety and anti-transparency requirements of Section 6(b) . . . to be eliminated,” and “People die because of Section 6(b). It is that simple.”16 In addition, David Friedman, a former acting Administrator of NHTSA, noted that NHTSA was “able to call for the recall of millions of deadly Takata airbags because we had the freedom to share what we knew. But CPSC can’t do that.”17 In fact, according to a recent report of the House Committee on Oversight and Reform, the restrictions placed on the CPSC by section 6(b) are unique among federal agencies.10

On the other hand, Nancy Nord, former Acting Chairman of the CPSC, has disagreed that the rule is detrimental. “I do scratch my head over all the wails I hear about how awful 6(b) is. This notion that somehow companies control what the agency is saying is just not correct. It’s not my experience, and it’s not what the statute requires.”18 This decades-old rule, supporters argue, satisfies consumer needs while avoiding unfairly harming a company’s reputation.19 Further, since section 6(b) requires the CPSC to take reasonable steps to assure the accuracy of information, and that the disclosure is fair under the circumstances, supporters of section 6(b) argue that the rule avoids potentially biased trials by media in favor of a fairer process.10

NTSA’s Authority to Publicize Defective Product Information

NHTSA also releases data about products under its jurisdiction. The agency may disclose information about specific dangerous products regardless of whether they violate a NHTSA standard, but unlike the CPSC, NHTSA is not required to wait to publish information or keep information confidential at the request of the manufacturer if the Secretary determines that disclosure is necessary to protect the public.20 NHTSA makes information available through a database that is searchable by product, year of production, identification number, and manufacturer.21 Through this database, NHTSA provides information about prior investigations, complaints, manufacturer communications, and any related recalls. NHTSA will inform consumers about products that are being recalled, what the safety defect is, communication between NHTSA and the company, as well as the requested or ordered remedy.22

Additionally, through the New Car Assessment Program, NHTSA provides another searchable database that contains information about the agency’s safety ratings of automobile products and accessories.23 The agency’s five-star rating system awards automobiles up to five stars in categories like rollover safety, frontal crash safety, and side crash safety.10 All cars under five tons must have a label on them displaying these grades.24 NHTSA also rates automobile accessories like booster seats and car seats in categories including installation features, how secure the child is, and clarity of labels and instructions.25 NHTSA’s purpose in requiring this transparency is to incentivize manufacturers to produce the safest possible equipment since consumers greatly value security in their products.26

Through mandatory or voluntary recalls, NHTSA can order manufacturers to notify consumers that NHTSA found a safety defect in their product. NHTSA also issues press releases on topics like product recalls, agency rules, and safety tips.27

The CPSC Recall Process

When determining whether any kind of recall is necessary to protect the public from a potentially dangerous product, the CPSC evaluates product complaints as well as any information that the business is required to disclose regarding defects.28 When it has determined that further inquiry potentially leading to a recall is necessary, the agency typically uses a voluntary recall process. This process begins with a “Preliminary Determination of Hazard” (PD) where staff determines if the product poses a substantial risk of serious injury to the public due to a defect in the product, or where the product violates a specific regulation.29 Factors that could create a substantial risk of injury include the number of defective products distributed, the likelihood of injury, and the severity of injury.30 If the CPSC wishes to designate a product as a substantial hazard, interested parties are given the opportunity to participate in an agency hearing, during which consumers and affected businesses can submit facts and arguments to support their position.31

This process can be time-consuming, so the CPSC encourages companies to follow the Fast Track recall program. The Fast Track program skips the PD process and allows a business, within 20 business days of disclosing a product defect, to implement a voluntary recall that satisfies the CPSC.32 This program has been hailed as a success by the CPSC because it allows CPSC officials and the company to work together on a corrective plan immediately rather than spending resources in an adversarial adjudicatory proceeding.33

Whether a business opts for the Fast Track program or the Preliminary Determination process, the next step is the corrective action plan. If the CPSC and the company agree on a remedy to correct the product defect, the two parties create a plan for public notification and implementation.34 For corrective action plans that involve a recall, the goal is to locate all defective products, remove them from consumers’ possession and the entire distribution chain, and communicate to the public about the product defect, the hazard, and the corrective action.35

However, if a company does not agree to a voluntary recall, the CPSC may begin the mandatory recall process. To halt distribution of the product and require the manufacturer to notify the public of the defective product, the CPSC may proceed administratively through an adjudicatory process under 15 U.S.C. § 2064, or, alternatively, the CPSC may file a federal court action against the manufacturer under 15. U.S.C. § 2061.36 The CPSC has cited this resource-intensive process as the rationale for using voluntary recalls more often than mandatory recalls.37

On July 14, 2021, the CPSC filed an administrative complaint against Amazon.com (Amazon) to refund consumers and effectuate a recall of allegedly hazardous products.38 According to the complaint, after the CPSC notified Amazon of the hazardous products available on Amazon’s website, Amazon took steps to perform their own voluntary recall including notifying consumers of some of the products’ defects and provided Amazon credit to consumers who bought those products.39 The CPSC’s complaint alleges, however, that these unilateral steps were insufficient because Amazon did not adequately notify the public, and did not recover and destroy the defective products.40 The agency is seeking an order requiring Amazon to engage with the CPSC to correct these deficiencies in its corrective action program.41 Amazon has responded publicly, claiming that it had already done virtually everything the complaint seeks to compel and that the CPSC did not provide Amazon with enough information to take further actions.42

According to a recent Government Accountability Office (GAO) report, from 2016 to 2019, the CPSC helped institute 131 voluntary recalls; the agency brought only 6 administrative cases for mandatory recalls from 2010 to 2020.43 Currently, most mandatory recall cases initiated by the CPSC last more than one year with a recent one lasting almost seven.44 In fact, given the long, resource-intensive process of litigating a mandatory recall, the CPSC relies mostly on voluntary recalls from manufacturers. Many CPSC officials believe increased funding would provide the CPSC with enough resources to issue more mandatory recalls.10

NHTSA’s Recall Process

The first step in NHTSA’s recall process is a determination that the product is defective or unsafe. The agency maintains complaints in a public NHTSA database, and its Office of Defects Investigation (ODI) looks at the frequency of complaints, analyzes company defect reports, and considers petitions calling for defect investigations to determine if an investigation is warranted.22 ODI staff investigates by analyzing the aggregate dataset and sending information requests to manufacturers.45 If the Secretary of Transportation, through the ODI, concludes that the product contains a safety defect or violates a safety standard, the Secretary must immediately notify the manufacturer of the alleged defect and the information on which the decision is based.46 The notification and the relevant evidence for the determination are available to any “interested person,” and, if the Secretary of Transportation decides that disclosure is necessary to help reduce traffic injuries, the general public.47

After receiving the notification, and before any recall order is issued, a hearing must be held to allow the manufacturer to present information and arguments to show that there is no defect or safety standard violation. Any interested persons may also “present information, views, and arguments.” 48 If the Secretary of Transportation still believes the product to be unsafe, the manufacturer is ordered to notify the purchasers of the product and remedy the defect, which generally means by repairing the product, replacing the product, or refunding the purchase price.49 Once they are notified of the defect, manufacturers often work with NHTSA to voluntarily recall the products.50 But as with the CPSC, if NHTSA orders a mandatory recall, that order can be challenged in federal court and there is no requirement to remedy the defect while the suit is pending.51 Also, as with the CPSC, the long, resource-intensive process of litigating a mandatory recall means that NHTSA relies primarily on voluntary recalls.52

Additionally, as noted by a 2011 GAO report, NHTSA has the authority to require manufacturers to notify consumers of recalls and safety defects but it “lacks the authority to require manufacturers to notify used-car dealerships.”53 In contrast, the “CPSC’s authority applies to retailers of products affected by a recall order, which includes a requirement for retailers to refrain from selling the affected product.”54 While the CPSC’s recalls have a potentially broader scope than NHTSA’s because they impact all resellers of recalled products, NHTSA has more authority to publicly disclose information about companies that create unsafe products.

CPSC Recalls and Disclosures in Practice

Recently, the CPSC’s ability to publicize information about defective products was examined by a congressional committee.55 The Congressional Committee on Oversight and Reform (Oversight Committee) held hearings and issued a report regarding Fisher-Price’s infant “inclined sleeper,” the Rock ‘N Play, that was associated with dozens of infant deaths. The Oversight Committee’s report noted particularly that the agency had information about infant deaths but was unable to act upon it as expeditiously as the risk to children warranted.56 The CPSC was able to share a safety alert to warn purchasers of dangers associated with inclined sleepers in general but was initially unable to specifically identify the Rock ‘N Play as a potentially dangerous product. The report noted that the agency’s ability to share such information was impacted by Section 6(b) of the CPSA.57

Section 6(b)’s prohibition on sharing information about a dangerous product does not apply if the CPSC has filed an action to have the product in question declared imminently hazardous or if the CPSC has reason to believe the product is in violation of any consumer product safety rule or provision enforced by the CPSC.58 Critics of 6(b) argue that filing an action to have the product deemed imminently hazardous takes too long when lives are at stake. Some dangerous products would not be deemed to violate a consumer product safety rule or provision of the Act because the CPSC has not yet issued rules for a particular product. Fisher-Price’s Rock ‘N Play is an example of this issue; when the product came out in 2009, there were no inclined sleepers on the market, so the CPSC had no rule regulating them.59 Because there was no rule regulating the angle of inclined sleepers, Fisher-Price was directed to follow voluntary standards set by the American Society for Testing and Materials (ASTM).60

Further, the CPSC’s process for creating mandatory standards can often take several years.61 The CPSC must first conduct a cost-benefit analysis, assess alternatives to the final rule, justify why alternatives were not adopted, substantiate its findings, including that the rule is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product, and that the rule is the least burdensome alternative that will adequately reduce the risk.10

In the case of the Rock ‘N Play sleeper, Fisher-Price recalled the sleeper in April 2019 after CPSC information inadvertently came into the possession of Consumer Reports, which published an article regarding the number of infant deaths associated with the product.62 The CPSC then wrote a letter to Fisher-Price explaining their intention to release a statement specifically about the Rock ‘N Play, and gave them time to comment on the release or object to it.10 After no legal objection was made, the CPSC publicly disclosed the dangers of the sleeper product. That same day Fisher-Price announced a Fast Track recall of the Rock ‘N Play.10

NHTSA Recalls and Disclosures in Practice

NHTSA is not limited by any restrictions comparable to section 6(b). NHTSA’s ability to publicly identify unsafe products was likely instrumental in the agency’s success in getting defective Takata airbags off the market, as noted by former NHTSA Acting Administrator Friedman in his testimony regarding Section 6(b) quoted above. Further, the Secretary of Transportation can order manufacturers to notify consumers that the agency has determined their particular product has a safety defect if a civil enforcement action has been filed against the company for violating a safety regulation.63 This order can be issued while recall litigation is pending.64 Manufacturers can move to enjoin enforcement of that order in the civil case brought by the Department of Justice.65

As with the CPSC, instituting new safety standards at NHTSA takes time. According to an investigation by the House Subcommittee on Economic and Consumer Policy, a rule regulating child booster seats has been delayed for years at NHTSA despite a congressional directive that a new standard be issued and mounting evidence that existing standards are not protective.66 On July 13, 2021, 18 attorneys general wrote to Transportation Secretary Buttigieg and Acting NHTSA Administrator Cliff, expressing concern about the delay in rules governing child booster seats and urging the adoption of effective labeling standards and side-impact testing for those seats.67

Congressional Action to Increase CPSC Authority

In their June 2021 Staff Report on Infant Deaths in Inclined Sleepers, the Committee on Oversight and Reform recommended the removal of administrative barriers so that the CPSC can issue and enforce a mandatory recall if it determines that a product poses an imminent danger of serious injury or death without going through lengthy litigation.68 The committee also proposed that before an infant product goes to market, manufacturers must submit reports to the CPSC that demonstrate the safety of any infant product not covered by the CPSC’s mandatory standards and the CPSC must conclude that the product is safe.10 Finally, the Committee recommended the repeal of section 6(b) of the CPSA to enable the CPSC to more rapidly and thoroughly identify the unsafe products and their manufacturers.10

Congresswoman Janice Schakowsky has introduced H.R. 2813, titled the Sunshine in Product Safety Act of 2021, which was referred to the House Committee on Energy and Commerce.69 This bill would strike section 6(b) from the Consumer Product Safety Act and allow the CPSC greater disclosure privileges. On the same day, Senator Richard Blumenthal introduced S. 1355, which was referred to the Committee on Commerce, Science and Transportation.70 Both bills contain the same title and language and are currently being reviewed by their respective committees.

Conclusion

The CPSC and NHTSA each face statutory limitations on their authority to regulate and recall products, including administrative and adjudicatory hurdles to agency actions. Each agency relies primarily on voluntary recalls because of these statutory limitations as well as limited resources. Both agencies maintain publicly available databases through which consumers can learn more about unsafe products, but the CPSC can release only limited information regarding specific products and manufacturers. These obstacles and the CPSC and NHTSA’s actions are likely to continue to receive scrutiny from policymakers and the public as they look to improve efforts to protect consumers from dangerous products, particularly those marketed for use by infants and children.

Other articles in this edition include:

Center for Consumer Protection logo

  1. Highway Safety Act of 1970, Pub. L. No. 91-605, Sec. 202, § 201, 84 Stat. 1739; 23 U.S.C. § 401. [↩]
  2. Id.; A Drive Through Time, NHTSA (last visited July 6, 2021), https://one.nhtsa.gov/nhtsa/timeline/index.html.  [↩]
  3. 15 U.S.C. § 2051. [↩]
  4. Who We Are – What We Do for You, CPSC (last visited July 6, 2021) https://www.cpsc.gov/Safety-Education/Safety-Guides/General-Information/Who-We-Are—What-We-Do-for-You; Guide to Public Information, CPSC (last visited July 8, 2021), https://cpsc.gov/Newsroom/FOIA/Guide-to-Public-Information/. “We have jurisdiction over thousands of types of consumer products, from coffee makers to toys to lawn mowers. Some types of products, however, are covered by other federal agencies. For example, cars, trucks and motorcycles are covered by the Department of Transportation; food, drugs and cosmetics are covered by the Food and Drug Administration; and alcohol, tobacco and firearms are within the jurisdiction of the Department of the Treasury.” [↩]
  5. Safety Issues & Recalls, NHTSA (last visited July 7, 2021), https://www.nhtsa.gov/recalls; Guide to Public Information, CPSC (last visited July 8, 2021), https://cpsc.gov/Newsroom/FOIA/Guide-to-Public-Information/.  [↩]
  6. 49 C.F.R. § 573.6 (2021). [↩]
  7. 15 U.S.C. § 2064(b). [↩]
  8. Recall List, CPSC (last visited July 31, 2021), https://www.cpsc.gov/Recalls. [↩]
  9. 15 U.S.C. § 2054; 15 U.S.C. 2055(a); Consumer product injury statistic database can be found at https://www.cpsc.gov/Recalls/Violations/. Consumer products violating mandatory standards database can be found at https://www.cpsc.gov/Recalls/Violations/. Injury statistics and CPSC research indexed by product area can be found at https://www.cpsc.gov/Research–Statistics/. [↩]
  10. Id. [↩][↩][↩][↩][↩][↩][↩][↩][↩][↩][↩][↩]
  11. 15 U.S.C. § 2055(a); other information can include the address of the manufacturer and the action that the CPSC has requested.  [↩]
  12. Press releases can be found at https://www.cpsc.gov/Newsroom/News-Releases.  [↩]
  13. 15 U.S.C. § 2055. [↩]
  14. Id.  [↩]
  15. Staff of H.R. Comm. on Oversight and Reform, 117th Cong., Infant Deaths in Inclined Sleepers: Fisher-Price’s Rock ‘n Play Reveals Dangerous Flaws in U.S. Product Safety, at 32 (2021) (hereinafter “Rock ‘N Play Report”), https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Inclined%20Sleeper%20Report%202021.pdf; Letter from New York Att’y Gen. Letitia James, et al. to Sec’y of Transp. Pete Buttigieg and Acting Adm’r Dr. Steven Cliff (July 13, 2021), https://ag.ny.gov/sites/default/files/boosters_side_impact_letter_to_nhtsa_with_ag_signatures_final_7122021.docx.pdf.  [↩]
  16. Protecting Americans From Dangerous Products: Is The Consumer Product Safety Commission Fulfilling Its Mission? Hearing Before the H. Subcomm. on Consumer Prot. and Com., 1156th Cong. 3 (2019) (statement of Elliot Kaye, former Comm’r, Consumer Product Safety Comm’n), https://docs.house.gov/meetings/IF/IF17/20190409/109316/HHRG-116-IF17-Bio-KayeE-20190409.pdf.  [↩]
  17. Rock ‘N Play Report at 23. [↩]
  18. Consumer Reports, Decades-Old Law Hides Dangerous Products and Impedes Recalls, (April 30, 2019), https://www.consumerreports.org/product-safety/decades-old-law-hides-dangerous-products-and-impedes-recalls/. [↩]
  19. Cheryl A. Falvey & Natalia R. Medley, Upsetting The Confidentiality Balance? CPSC Proposes Revisions To Its § 6(b) Information Disclosure Regime, Washington Legal Foundation, Feb. 28, 2014 at 1, https://www.crowell.com/files/Upsetting-the-Confidentiality-Balance-CPSC-Proposes-Revisions-to-Its-Section-6b)-Information-Disclosure-Regime.pdf. [↩]
  20. 49 U.S.C. § 30166; 49 U.S.C. § 30167. [↩]
  21. The database can be found at https://www.nhtsa.gov/recalls. [↩]
  22. Safety Issues & Recalls, NHTSA (last visited July 8, 2021), https://www.nhtsa.gov/recalls.  [↩][↩]
  23. Ratings, NHTSA (last visited July 9, 2021), https://www.nhtsa.gov/ratings; the database can be found at https://www.nhtsa.gov/ratings.  [↩]
  24. 49 C.F.R. § 575.301. [↩]
  25. Ratings, NHTSA (last visited July 9, 2021), https://www.nhtsa.gov/ratings. [↩]
  26. Highly Automated Vehicles: Federal Perspectives on the Deployment of Safety Technology, NHTSA (Nov. 20, 2019), https://www.nhtsa.gov/congressional-testimonies/highly-automated-vehicles-federal-perspectives-deployment-safety.  [↩]
  27. Press Releases, NHTSA (last visited July 19, 2021), https://www.nhtsa.gov/press-releases.  [↩]
  28. U.S. Consumer Product Safety Comm’n, Recall Handbook 12 (2012)(hereinafter “Recall Handbook”). [↩]
  29. Id. at 13. [↩]
  30. Id. at 13-14. [↩]
  31. 15 U.S.C. § 2064. [↩]
  32. Recall Handbook at 15 (2012). [↩]
  33. CPSC Fast Track Recall Program, CPSC (last visited July 13, 2021), https://www.cpsc.gov/Business–Manufacturing/Recall-Guidance/CPSC-Fast-Track-Recall-Program.  [↩]
  34. Recall Handbook at 17 (2012). [↩]
  35. Id. at 18. [↩]
  36. 15 U.S.C. § 2064 (c). [↩]
  37. Id. at 16. [↩]
  38. CPSC Sues Amazon to Force Recall of Hazardous Products Sold on Amazon.com, CPSC (last visited July 15, 2021), https://www.cpsc.gov/Newsroom/News-Releases/2021/CPSC-Sues-Amazon-to-Force-Recall-of-Hazardous-Products-Sold-on-Amazon-com; The products at issue include 24,000 faulty carbon monoxide detectors, flammable children’s sleepwear, and nearly 400,000 hair dryers sold without the required immersion protection devise.  [↩]
  39. Amazon.com, Inc., No. 21, at 11 (C.P.S.C. filed July 14, 2021)(hereinafter “Amazon Complaint”), https://www.cpsc.gov/s3fs-public/pdfs/recall/lawsuits/abc/001-In-re-Amazon-com-Inc__.pdf?TvLLxHy1UMfiz3BpfXaKjQy1ibQbYAiU.  [↩]
  40. Id.; Joe Hernandez, U.S. Consumer Agency Sues Amazon To Force A Recall Of Potentially Hazardous Products, NPR (July 15, 2021), https://www.npr.org/2021/07/15/1016512896/us-consumer-agency-sues-amazon-to-recall-dangerous-products. [↩]
  41. Amazon Complaint at 11. [↩]
  42. Joe Hernandez, U.S. Consumer Agency Sues Amazon To Force A Recall Of Potentially Hazardous Products, NPR (July 15, 2021), https://www.npr.org/2021/07/15/1016512896/us-consumer-agency-sues-amazon-to-recall-dangerous-products.  [↩]
  43. U.S. Gov’t Accountability Off., GAO-21-56, Consumer Product Safety Commission: Actions Needed to Improve Processes for Addressing Product Defect Cases, p. 16 (2020), https://www.gao.gov/assets/gao-21-56.pdf. [↩]
  44. Id. at 9. [↩]
  45. Nat’l Highway Traffic Safety Admin., DOT HS 812 984, Risk-Based Processes for Safety Defect Analysis and Management of Recalls, p. 10 (Nov. 2020), https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/14895_odi_defectsrecallspubdoc_110520-v6a-tag.pdf.  [↩]
  46. 49 U.S.C. § 30118(a); 49 C.F.R. § 554.3. [↩]
  47. Id.; See also 49 U.S.C. § 30167(a). [↩]
  48. 49 U.S.C. § 30118 (b). [↩]
  49. Id. See also 49 U.S.C. § 30120(a). [↩]
  50. Safety Issues & Recalls, NHTSA (last visited July 8, 2021) https://www.nhtsa.gov/recalls.  [↩]
  51. Motor Vehicle Defects and Safety Recalls: What Every Vehicle Owner Should Know, NHTSA (last visited July 21, 2021) https://www-odi.nhtsa.dot.gov/recalls/recallprocess.cfm#:~:text=If%20NHTSA%20makes%20a%20final,in%20a%20Federal%20District%20Court.  [↩]
  52. Kevin M. McDonald, Judicial Review of NHTSA-Ordered Recalls, 47 Wayne L. Rev. 1301, 1318 (2002); U.S. Gov’t Accountability Off., GAO-21-56, Consumer Product Safety Commission: Actions Needed to Improve Processes for Addressing Product Defect Cases, p. 9 (2020). [↩]
  53. U.S. Gov’t Accountability Off., GAO-11-603, AUTO SAFETY: NHTSA Has Options to Improve the Safety Defect Recall Process p. 36 (2011), https://www.gao.gov/assets/gao-11-603-highlights.pdf. [↩]
  54. Id. at 15. [↩]
  55. Rock ‘N Play Report at 1 (2021). [↩]
  56. Id. at 37. [↩]
  57. Id. at 23. [↩]
  58. 15 U.S.C. § 2055(b)(4). [↩]
  59. Rock ‘N Play Report at 3 (2021). [↩]
  60. The ASTM is a non-governmental organization that develops standards for thousands of consumer products. The ASTM is composed of committees that set voluntary standards for various industries. Because up to half of a given committee can be representatives of the manufacturers themselves, many Oversight Committee members argued the CPSC needs more authority to avoid alleged “regulator capture.” Others argue that the ASTM process serves the public by ensuring that manufacturing stakeholders, who have considerable knowledge about the products, are included in the standard setting process at no cost to the taxpayer. See Frequently Asked Questions, ASTM International, (last visited July 21, 2021), https://www.astm.org/FAQ/#what.  [↩]
  61. U.S. Gov’t Accountability Off., GAO-21-56, Consumer Product Safety Commission: Actions Needed to Improve Processes for Addressing Product Defect Cases, p. 20 (2020), https://www.gao.gov/assets/gao-21-56.pdf. [↩]
  62. Rock ‘N Play Report at 28 (2021), https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Inclined%20Sleeper%20Report%202021.pdf. [↩]
  63. 49 U.S.C. § 30121; 49 U.S.C. § 30118; 49 U.S.C. § 30163 (Civil enforcement actions are filed by the U.S. Department of Justice). [↩]
  64. Kevin M. McDonald, Judicial Review of NHTSA-Ordered Recalls, 47 Wayne L. Rev. 1301, 1320 (2002). [↩]
  65. 49 U.S.C. § 30121(b). [↩]
  66. Staff of H.R. Subcomm. on Economic and Consumer Policy, 116th Cong., Booster Seat Manufacturers Give Parents Dangerous Advice: Misleading Claims, Meaningless Safety Testing, and Unsafe Recommendations to Parents About When They Can Transition Their Children from Car Seats to Booster Seats, at 28 (2020), https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-12-10%20Subcommittee%20on%20Economic%20and%20Consumer%20Policy%20Staff%20Report%20on%20Booster%20Seat%20Investigation.pdf. A rule was proposed in 2014 but never finalized. 79 Fed. Reg. 4570-01 (proposed Jan. 28, 2014) (to be codified at 49 C.F.R. § 571.213), https://www.regulations.gov/document/NHTSA-2014- 0012-0001. [↩]
  67. Letter from New York Att’y Gen. Letitia James, et al. to Sec’y of Transp. Pete Buttigieg and Acting NHTSA Adm’r Dr. Steven Cliff (July 13, 2021), https://ag.ny.gov/sites/default/files/boosters_side_impact_letter_to_nhtsa_with_ag_signatures_final_7122021.docx.pdf.  [↩]
  68. Rock ‘N Play Report at 38 (2021). [↩]
  69. https://www.congress.gov/bill/117th-congress/house-bill/2813?s=1&r=18. [↩]
  70. https://www.congress.gov/bill/117th-congress/senate-bill/1355. [↩]

Related Posts