In a somewhat unusual development for CPSC Consumer Product Safety Commission rulemaking, Pennsylvania Senators Robert Casey and Patrick Toomey submitted a bipartisan comment letter into the official administrative record for CPSC’s proposed voluntary recalls rulemaking that echoed many of the same concerns voiced by at least 45 others who submitted comments (see full comment docket here).

In their letter, the Senators stated:

As you know, the agency currently operates a “Fast Track” program that is well regarded and has a history of success. Since its inception in 1997, the program has allowed companies to recall products when they have reason to believe their products will harm consumers. The vast majority of companies across the nation comply with the program, and companies in Pennsylvania often initiate product recalls as a precautionary measure, even where there is no evidence of injury to consumers. As the CPSC itself points out, the advantage of its award-winning program is that it permits companies to remove potentially hazardous products from the marketplace as quickly and efficiently as possible, without requiring CPSC staff to make a preliminary determination that the product is hazardous. Because the program makes recalls voluntary and utilizes standard-form documents that can be expeditiously reviewed and executed, product recalls occur rapidly and efficiently.

Unfortunately, the proposed changes seem to jeopardize the efficacy of the existing process, which could increase the risk of harm to consumers. The proposed rule makes “voluntary” product recall Action Plans legally binding and requires companies to state with specificity each instance in which a product causes harm. We worry that these changes may discourage companies from initiating precautionary recalls and increase compliance and administrative costs. Companies that recall products will have to utilize lawyers to negotiate their “legally binding” documents and will involve upper corporate management to approve forward-looking obligations. Similarly, the CPSC will have to devote more time and personnel to negotiating recall documents and may be subject to litigation to determine whether a particular product is hazardous. Given these issues, we are concerned that the proposed change could ultimately keep harmful products on store shelves for longer periods of time, and thus increase the risk of harm to consumers.

 The 45 other comments mainly focused on legal and policy reasons why the final version of the rule should not:

1. Reverse the CPSC’s longstanding regulation by making all voluntary recalls legally binding

2. Condition CPSC’s agreement to issue a voluntary recall on a company’s agreement to adopt an internal compliance program in certain circumstances

3. Give the agency the discretion to condition its agreement to issue a voluntary recall on a company forfeiting its ability to deny that the product being voluntarily recalled presents a substantial product hazard;

4. Require recall notifications to list significant retailers, foreign manufacturers, the state of residence of any persons seriously or fatally injured, and certain other types of information.

The major themes of the comments include that the rule will slow down the recall process by requiring legal and senior management involvement, reduce cooperation between companies and the Commission, and harm small businesses. Additionally, many of the comments insisted that the proposed rule is not truly “interpretive” and is beyond CPSC’s legal authority.

One set of commenters, through a joint comment from Kids in Danger, Consumer Federation of America, Consumers Union, the Union of Concerned Scientists, National Research Center for Women & Families and Public Citizen, supported all aspects of the proposed rulemaking. They stated “our organizations strongly support the proposed rule and guidelines. These actions will strengthen recall effectiveness and will enable the use of additional resources to communicate the vital safety information in recall notices to the consumers using the products.”

With over 245 pages of comments submitted critical of the rule and at least 35 distinctive arguments against many of the changes proposed, it might be quite some time before the rule is finalized by the agency. Stay tuned here for further analysis of the numerous critical comment letters and the potential impact they may have on the proposed rule.