On May 16, 2024, the United States Consumer Product Safety Commission (CPSC) took an unconventional action, unilaterally issuing a recall announcement urging consumers to dispose of CHZHVAN Combination Smoke and Carbon Monoxide Detectors after reports that the detectors failed to alarm in the presence of smoke. The recall press release notes that the seller of the detectors “has not responded to the CPSC or consumers and has been uncooperative in the implementation of the recall.”
Traditionally, consumer product recalls are voluntarily conducted by the product manufacturer or retailer in conjunction with CPSC. If a company is unwilling to conduct a voluntary recall, CPSC can use various enforcement mechanisms to pressure the company to agree to recall the product.
One common enforcement mechanism is CPSC’s authority under Section 6(b) of the Consumer Product Safety Act to issue a unilateral press release, warning consumers of a potential hazard and/or advising consumers to stop using a product. While unilateral press releases carry no direct penalties themselves, they can—and frequently do—result in various adverse consequences for the named company. Most evidently, unilateral press releases can trigger negative press attention and calls from industry groups and consumers for the company to recall the product, which often will lead to the company ultimately conducting a recall.
But CPSC’s authority does not include the ability to unilaterally issue a mandatory recall. CPSC can file an administrative complaint in a U.S. District Court requesting the court find a product to be an “imminently hazardous consumer product” (one that “presents imminent and unreasonable risk of death, serious illness, or severe personal injury”) and seeking temporary or permanent relief to protect the public. This relief may come in the form of a public notice or product recall. 15 U.S.C. § 2061. CPSC has only turned to filing administrative complaints in extreme situations, as the entire process to obtain a court order can be lengthy. In the last 10 years, CPSC has only filed four administrative complaints.
United States v. Zen Magnets, LLC, 104 F. Supp. 3d 1277, 1284 (D. Colo. 2015) illustrates both the appeal and drawbacks of this authority for CPSC. There, the court granted CPSC’s request for a preliminary injunction, enjoining future sales of a product it found to present a substantial product hazard, but denied CPSC’s request that the court order the company to recall the products it had already sold. Id. at n. 5. The court explained that no statutory provision cited by CPSC “confers authority to order an individual or entity to recall” products found to present a substantial product hazard that have already been distributed in commerce. Id. CPSC first filed its administrative complaint in August 2012 and did not receive an order until March of 2016.
Here, CPSC went beyond issuing a Section 6(b) unilateral press release by issuing a warning and stop‑use notice for the combination smoke and carbon monoxide detectors in a product recall announcement. Importantly, CPSC did this without filing an administrative complaint.
CPSC appears to have taken this approach once in the past. A similar recall press release issued on June 30, 2022, warning consumers to dispose of a Lidocaine 4% Topical Anesthetic Cream that failed to meet child-resistant packaging requirements, also notes that the seller “has been uncooperative in the implementation of the recall.”
These two apparent unilateral recall press releases demonstrate CPSC’s continued aggressive enforcement efforts. If a manufacturer or retailer is resistant to CPSC, CPSC has sought to expand its traditional enforcement mechanisms in order to communicate what it believes are substantial product hazards to consumers.
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