Little Known About Consumer Product Safety Whistleblowers, Despite Continued Enforcement

Known for monitoring and removing dangerous and potentially lethal products from store shelves, the U.S. Consumer Product Safety Commission (or “CPSC”), has seen a steady increase in product incident reports from the general public since 2007. What’s unclear, though, is how many of the reporters are whistleblowers covered under the Consumer Product Safety Improvement Act (“CPSIA”) of 2008, and given the paucity of CPSC and OSHA data on product safety whistleblowers, it’s difficult to determine what, if any, role they play in recent enforcement actions.

In 1972 Congress established the CPSC to "protect the public against unreasonable risks of injury associated with consumer products" and with Congress’s passage of the CPSIA in 2008, the Commission received additional enhancements, such as greater recall powers, increased funding and regulatory authority to address risk of harm to consumers, the enforcement of toy labeling requirements to improve tracking and a ban on certain toy and plastic child-care products containing phthalates like Benzylbutylphthalate (BBP) in baby bottles.

Much to the dismay of manufacturing industry advocates, CPSIA also raised civil fines under virtually every law enforced by the Commission and also includes criminal penalties for willful violations for product safety laws. In addition, the relatively new law includes whistleblower protections for employees of manufacturers, distributors and retailers that report, object to or refuse to participate in activities or policies that violate product safety laws. While the CPSIA has facilitated reports of product failures from the public and proven effective in extending the Commission’s reach, little is known about potential and current whistleblowers who may have a hand in the agency’s enforcement measures.

Last year, Commission recalls matched 2010 recalls, with the market removal of just over 400 different products "that either violated mandatory standards or were defective and presented a substantial risk of injury to the public," according to the annual performance and accountability report. Civil penalties of companies that failed to report potentially hazardous products to the CPSC were slightly down from $3.9 million in 2010 to $3.26 million. However, penalties in 2010 were considerably bolstered by the Commission's $2.05 million settlement with Daiso Holdings, a Seattle-based company alleged to have imported and sold children's toys with excess levels of lead and phthalate compounds, in violation of the CPSIA and the Federal Hazardous Substances Act. The hefty settlement represented the Commission's first civil penalty enforcing the CPSIA, and is third to the agency's $2.3 million fine of Mattel Inc. in 2009 for violating a federal ban on lead paint and $4 million penalty against Graco Children's Products in 2005 for failing to report numerous injuries caused by faulty toddler beds and other products.

The CPSIA prohibits employers from retaliating against employees who report product safety law violations either internally or to local, state or federal authorities; participate in legal and investigatory proceedings on alleged violations; and/or refuse to participate in practices or policies he or she believes violates consumer product safety laws. If you believe that your employer has retaliated against you, you may, within 180 days of such violation, file a complaint with the Secretary of Labor. Visit the website of Katz, Marshall and Banks to learn more about product safety whistleblower protections. For more information on filing a complaint, visit http://www.dol.gov/compliance/topics/whistleblower-protections.htm.