If you’ve ever conducted a Consumer Product Safety Commission (“CPSC”) recall and had to complete the Monthly Progress Report to file with the CPSC, you may have wished that the CPSC also issued a “Progress Report for Dummies” guidance document. Well, they haven’t issued a guidance document, but they have posted a revised form on their website. The new form imposes new burdens on reporting companies, and the CPSC staff has recently made similar requests as part of voluntary corrective action plans (“CAPs”). Significantly, the staff is requesting that companies monitor third party auction sites and post all recalls, including those for which all consumers can be contacted directly, through the company’s social media accounts. Here’s a summary of the new form:
- The first section tracks the previous form, requesting the number of units from different sources that were corrected or recovered during the reporting period. The CPSC has just removed the “Percentage corrected” column.
- The second section requests the same information about incidents that was requested on the previous form. The form requests the number of incidents, injuries, and deaths that occurred before and after the recall and were reported during the relevant period.
- The third section tracks “notifications made by firm and consumer response.” The first subsection requests information about consumer contacts by phone, email, and regular mail (the form no longer includes some of the other categories of contact, such as billing inserts, newspaper ads, and posters). The second subsection is shifted slightly from the previous form – rather than requesting information about how consumers who contacted the company learned about the recall, it requests the number of consumers who contacted the company by phone, email, and regular mail.
- The third section also adds four new topics:
- Whether the recall is currently posted on the company’s home page. If not, the CPSC requests an explanation.
- How many hits the website has received during the reporting period.
- Whether the company identified the recalled product on any online auction sites and, if so, a description of the action taken to remove the products. As part of voluntary CAPs, the CPSC staff is also requesting that companies monitor “re-sale, auction, or wholesale websites.” If a company identifies any recalled product, the company should notify the website that it is illegal to sell recalled products and request that the website remove the product. The CPSC staff has added this requirement without formal requests for comment, claiming authority under 16 C.F.R. 1115.20(a)(1)(xii), which describes the elements of a voluntary correction plan and includes a catch-all provision allowing “additional points of agreement, as appropriate.” We have requested additional guidance regarding the staff’s expectations.
- How many times the company posted the recall notice through social media, including Facebook and Twitter, and the number of SHARES, LIKES, and RETWEETS. As part of voluntary CAPs, the CPSC staff is requesting that companies use their social media accounts to announce all recalls, even those that are subject to a Recall Alert and that the CPSC does not typically publicize through its own social media accounts.
Although these changes may be manageable in many circumstances, they are consistent with other CPSC initiatives (such as the recent proposed rule regarding voluntary corrective action plans) that increase the burdens on companies conducting voluntary recalls and, to the extent that a company objects to new requirements like auction website monitoring or unnecessary use of social media, could increase the time it takes to announce a recall.