February 28, 2020, 8:07

People buy millions of unsafe products every year. Here’s why recalls are harder than they should be.

People buy millions of unsafe products every year. Here’s why recalls are harder than they should be.

On January 22, 2018, a father living in New York City filed a complaint on SaferProducts.gov, the website of the Consumer Product Safety Commission. It read, in part:

“My 6 month old son was put down for a nap in the Fisher-Price Rock n Play. During the time of his nap, he rolled over in the Rock N Play and silently died. The Rock N Play is sold as a sleeper and is marketed for ‘great overnight sleep’ … Fisher-Price has been notified of infant deaths due to their product and will still not recall it. This product can not be labeled as a sleeper or for “great overnight sleep”. My son was a beautiful, healthy baby and only died because of the Rock N Play and the false sense of security they provide with their false and UNSAFE claims of the Rock N Play being used for safe sleep.”

On April 12, 2019, Mattel, the owner of Fisher-Price, recalled 4.7 million Rock ‘n Plays it had sold, citing safety concerns.

The recall, which essentially forbids any retailer from selling the troubled product, happened more than a year after this complaint of an infant death caused by the Rock ‘n Play was made to the CPSC, and likely only happened because a Consumer Reports article had recently linked 32 infant deaths to its product, causing the American Academy of Pediatrics to urge the CPSC to recall it. As angry Facebook commenters noted, this recall was long overdue.

The CPSC had for many years heard complaints that the Rock ‘n Play was dangerous. The baby sleeper, which came out in 2009, rocked, vibrated, and played music to soothe an infant. Although the sleeper’s snug and angled cocoon-like shape directly violated the AAP’s SIDS prevention guidelines that recommend babies sleep on flat surfaces, the Rock ‘n Play advertised as a safe sleep product. Yet there were dozens of complaints filed to the CPSC about how some infants were developing plagiocephaly, or flat head syndrome, because of the bed’s shape or “respiratory issues” because of the product’s tendency to grow mold. Parents had also labeled the Rock ‘n Play an “asphyxiation hazard” because of the way it laid babies in an upright position.

And yet, the fact that it took years for Fisher-Price to voluntarily recall the Rock ‘n Play speaks to the long and complicated recall process in the US — a process public safety advocates say needs to be improved.

How a product gets recalled

When shoppers spend money on a product, they assume it’s been expertly tested, manufactured, and produced. In reality, though, millions of units get pulled from shelves every year because they are safety hazards: Overly flammable BBQs, lawn mowers that are liable to spit out sharp objects, toys that kids can choke on, scuba diving masks that cause restricted airflow, and cellphones that spontaneously combust.

The Consumer Product Safety Commission, a tiny government agency, is in charge of the recall process. The CPSC researches hazardous products, studies consumer complaints, enforces safety rules in specific product categories, and works with companies to issue recalls.

The CPSC has been around since 1971, when Congress established the Consumer Product Safety Act, establishing the agency as a watchdog that would keep consumers safe from potentially hazardous products. This law was reissued in 2008 as the Consumer Product Safety Improvement Act, giving categories like children’s products specific safety rules for the first time.

The CPSC now monitors categories like baby products; toys; appliances and other home goods; sports and recreational items; and fire and carbon monoxide-emitting items like generators and space heaters, as well as products with lead or mercury. (Vehicle recalls happen through the National Highway Traffic Safety Administration while food recalls are issued by the Food Safety and Inspection Service and by the Food and Drug Administration.)

The CPSC has five commissioners (the majority of the seats go to the sitting president’s political party, but no more than three are allowed to be from the same party to ensure bipartisanship). The agency sifts through complaints filed against roughly 15,000 different types of products and issues about 300 recalls a year.

In order for a product to be recalled, the CPSC first needs to determine if it can “present a significant risk to consumers.” Coming to this determination is not so easy, though, as Joseph Martyak, the director of communications at the CPSC, writes in an email (the CPSC did not make its commissioners available for this story).

“Many of the reports CPSC receives require no corrective action because CPSC staff concludes that the reported issue or product defect does not create a substantial product hazard,” Martyak writes. “In the case of reporting a non-compliance with a CPSC rule or regulation, there are other corrective actions that CPSC staff may consider short of a recall, for example, correcting future production, destroying products, or removing or repairing the non-compliant aspect of the product prior to sale.”

Once a report is issued, the product is investigated by the CPSC staff, which determines if a recall is necessary. Martyak says most product recalls kick off when a brand alerts the CPSC. Legally, all companies have to report when they find a defect in one of their products that could cause harm or risk of death, or if they are aware that they are violating mandatory consumer products safety rules. Martyak says the CPSC’s advice is “when in doubt, report.”

But the CPSC doesn’t just rely on companies to report on themselves; it gathers data about product-related deaths from coroners and hospitals, and studies news reporting. It also fields complaints filed to CPSC’s own website.

If the CPSC does decide something needs to be recalled, it works directly with the company to come up with a game plan, like how it will remove products from stores and what type of refunds customers will get. Most recalls are voluntary, since brands don’t want to face the PR disaster of publicly butting heads with a public safety watchdog agency.

In some rare situations, though, if a company doesn’t agree to pull its products, the CPSC will sue in order to issue a mandatory recall. Last year, the agency sued Britax after the company refused to recall a stroller that had a faulty wheel that kept popping off, injuring children and adults. The Washington Post recently reported that the CPSC agreed to settle with Britax, a decision that was moved along by a commissioner appointed by President Trump. Public safety advocates had previously raised concern that Trump’s picks for the CPSC had close relationships with the business world and might bring their biases with them when faced with holding corporations responsible.

The case for improving the recall system

As Martyak of the CPSC notes, not every death or injury associated with a product results in a recall. In many cases, companies are able to shift the blame onto consumers. In the case of the Fisher-Price Rock ‘n Play, the company said the deaths linked to the sleeper were caused by a product misuse; in an emailed statement to Vox, Fisher-Price VP Chuck Scothon said that there were “reported incidents in which the product was used contrary to the safety warnings and instructions.”

Adam Garber, a consumer watchdog with the United States Public Interest Network, says the CPSC should be active instead of reactive; it should tell companies to halt the sale of a product until the investigation is concluded.

“We would argue that when it comes to death being tied to a product, safety should be ensured first,” he says. “At a minimum, the sale of the product should be stopped, especially if there are children involved, and people should be notified that products that they own are being investigated.”

“At a minimum, the sale of the product should be stopped, especially if there are children involved”

Martyak admitted in his email that the agency does not seek out complaints; it does not read negative product reviews on website, where plenty of these product complaints live (the comments section for Rock ‘N Play listings on Amazon were littered with warnings). Instead, it waits for companies to report themselves to the CPSC. This system might have worked a decade ago, but with the surge of manufacturing, cheap labor overseas, and the ability for anyone to sell anything online today, Garber believes the agency needs to be aggressive.

“The current methods of the Consumer Product Safety Commission allows them to stay on top of a market where there are, let’s say, 1,000 new products,” he says. “But in reality, there are tens of thousands of new products hitting the market every year.”

Advocates also take issue with the nature of recalls — specifically, that they are product-focused, as opposed to category-focused. For example, the CPSC has reported that every two weeks, a child dies after a piece of furniture or a TV tips over and falls on them. In 2017, Ikea recalled 29 million Malm dressers after the model was linked to the deaths of at least eight children. Consumer Reports has identified 24 different dressers in 2018 that have the same safety hazards as Ikea’s Malm dressers. None have been recalled. Neither have copycats of the Rock ‘n Play.

“Because a lot of recalls are related to an individual product or a manufacturing flaw, there’s no invitation for a recall on a class of products,” Garber says. “Really, they should all be recalled, and at a minimum, the CPSC could stop the sale of these items until they do further investigation.”

Do recalls even work?

Advocates have issues with the recall itself: How do customers even find out?

When a product is recalled, both the brand and the CPSC spread the news via press releases, social media, and the occasional personal notification if a company has access to a customer’s information. But Nancy Cowles, executive director of Kids in Danger (KID), a nonprofit dedicated to the safety of children’s products, believes the CPSC lets brands off too easily, since they don’t make it mandatory for companies to track down shoppers or ensure that the recalled product disappears completely. KID, in fact, was founded in 1998 by the parents of a baby who died in a recalled portable crib; news about the recall had never reached his parents.

“Getting these products out of people’s homes is the hardest part, and we don’t believe there’s enough emphasis on making sure the recalls are effective,” she says. “Guarantee, in a year from now, we’ll hear about injuries of more children from [the Rock ‘n Play] because there’s no planning to make sure every customer is reached.”

Consumer safety watchdogs note that since recalls aren’t as effective as they should be, the CPSC should really be focused on something that’s crucial: product safety.

“We don’t believe there’s enough emphasis on making sure the recalls are effective”

What it can do, and what advocates want, is for the agency to make product safety mandatory. Currently, there are no laws that make product development teams factor in safety. The CPSC has mandatory safety standards for about 200 products, including electric garage door openers and children’s cribs. Other products, though, are subject to voluntary standards, or considered “industry consensus.” These standards are put together by groups like the American National Standards Institute (ANSI), which works with manufacturers, retailers, and other product experts. But they are suggestions; companies do not have to fully comply by them. According to the US Government Accountability Office, “compliance with voluntary standards is not routinely tracked.”

“Recalls should be the last line of defense in our product safety system, and the first is that dangerous products don’t reach people’s homes in the first place,” Garber says. “Our product safety system has gotten infinitely better, and we’ve made huge strides in getting away from toxics materials, but there’s more room to be done to make sure dangerous products aren’t slipping through the cracks.”

Recalls in general are on the decline — which makes advocates worry

Back in March, KID released its annual Recall Report and it found that under the Trump administration, there has been a 44 percent decrease in recall of children’s products (52 recalls a year, down from 93). The report also found that the number of actual items being pulled as a result of a recall had dropped from 12 million in 2017 to 2 million in 2018.

The CPSC has instead been relying on issuing warnings, according to the New York Times.

Pulling millions of products from shelves can be extremely destructive to a business, so it’s easy to understand why a company would prefer sending a warning instead. But the declining number of recalls concerns public safety advocates.

“Consumers react to product recalls with more urgency and more care and attention than they do for warnings,” Pamela Gilbert, who was the agency’s executive director from 1995 to 2001, told the Times. “When deaths are involved, especially for babies and children, warnings are really not the appropriate remedy.”

In its report, KID urges the CPSC to “invigorate its efforts” to getting more dangerous products off the market. It’s unlikely the agency will decide to take a proactive approach and start combing products on Amazon in search of reviews that hint at danger. The CPSC is notoriously understaffed and has a tiny budget.

“Most parents will say they hear about a product recall once a month or so, but last year, there was one recalled product a week, but they just aren’t hearing about them,” Cowles says. “The product safety system has a long way to go to ensure the safety of our most vulnerable consumers: children.”

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