The CPSC chairman is also rattling the cages on further updating the 2014 version of ASTM 2057 and moving to make an even newer version of ASTM 2057 a mandatory national standard. This news should serve as a wakeup call for the industry. Companies should begin to plan for these possibilities by setting aside funds and taking some of the steps outlined below in this article.
In its meeting, Kaye continued to note that, in discussing tipovers, the meeting was “the first time we have publicly acknowledged, maybe as a group, [furniture] product on the market that complies with the standard as opposed to product that does not comply with the standard.”
This sentence clearly implies what many product safety attorneys already knew: specifically that the Commission is already using, as the basis of compliance and enforcement actions, non-compliance with the current voluntary standard ASTM 2057-14 as the basis for a finding a defect and a recall. Does your furniture comply with ASTM 2057-14?
Not only is the commission placing enormous reliance on the current version of ASTM 2057-14, the chairman is pushing for further improvements and a newer version of the voluntary standard. A consumer advocacy group, Kids In Danger, engaged Underwriters Laboratory to help it conduct tipover research, and the resulting report has clearly colored the views of Chairman Kaye:
“Based on what I thought was absolutely outstanding work by UL and Kids in Danger, they have already identified test methods and changes, improvements to the voluntary standards that I think will make a huge difference. And yes, that doesn’t get to product on the market right now, that gets to future products. But I do think that we need to pursue those.
"And I’m grateful that the staff … included … the one item that I did request that the staff consider adding to the operating plan, which was commencing rulemaking on tipovers because I do think that, based on that report by Underwriter Laboratories and Kids in Danger, it, as well as other information, that ... we know enough now that we should be considering not only what the standard can evolve to but how we can enforce that better.
"So, I am very eager. I understand that there is other work that has to come before that. But I’m very eager should the staff package warrant or confirm those suspicions that we would forcefully move in the direction of improving the standard, both through the voluntary standard process and, if that is insufficient or compliance with it is insufficient, that we would move on rulemaking.”
In other words, definitely expect tremendous pressure from the CPSC to revise and, in its view, improve the standard. And, if a substantial part of the industry does not comply with the voluntary standard, expect the CPSC to move forward with mandatory rulemaking in 2018. The chairman is putting his substantial political capital into tipover safety, and we expect serious follow up work by CPSC staff to meet the Chairman’s stated goals.
What should you do?
- If you have not already done so, you should test all of your products covered by ASTM 2057-14 for compliance with that standard. Although technically this is a “voluntary” industry consensus standard, failing to test your product is a major problem after CPSC’s announcements. Ignorance is no excuse, and not knowing where your products stand puts your company at serious risk.
- Evaluate the results of your testing and conduct a risk assessment for your product line. If your product does not comply, you should immediately consider how you would go about re-engineering the product to comply or repairing the product, perhaps through the use of counterweights or drawer stops, to make the product comply. Be cautious in how you draft language and engineering change orders. You may wish to consult a product safety attorney.
- Decision time: Once you know where you stand, it is time to make a difficult decision. Do you voluntary self-report your non-complying products to the CPSC, or do you wait and see? This is an extremely difficult strategic decision to make. Again, you may wish to engage a product safety attorney to assist you.
Deciding whether to report a product that may be a substantial product hazard to the CPSC is always a difficult decision, in any industry. This particular decision is made even more difficult due to the high-profile statements of Chairman Kaye and the CPSC’s attempt to rely, legally, on a voluntary industry consensus standard for finding a defect. Having knowledge about a product’s propensity to tip and not reporting it to the CPSC could subject your company to a multi-year investigation and possible civil penalty.