Earlier this week, the CPSC filed an administrative complaint against Baby Matters, LLC, makers of the Nap Nanny. (http://www.cpsc.gov/CPSCPUB/PREREL/prhtml13/13058.html). In July of 2012, the CPSC filed an administrative complaint against Maxfield & Oberton, makers of Buckyballs, and noted in the press release that it was only the second administrative complaint the agency had filed in 11 years. (http://www.cpsc.gov/CPSCPUB/PREREL/prhtml12/12234.html) From two suits in 11 years to two suits in six months; something’s clearly amiss, but is it the products or the agency? Similarities abound in the cases, and they’re pretty disturbing in terms of what they say about the CPSC’s policies and decisions.
Perhaps the most alarming and disappointing part of these lawsuits is that the companies both cooperated with the CPSC and both conducted voluntary recalls prior to the CPSC filing these lawsuits. In May of 2010, Maxfield & Oberton conducted a voluntary recall, complying with the CPSC’s request to relabel sets of Buckyballs for ages 14 and up. (http://www.cpsc.gov/cpscpub/prerel/prhtml10/10251.html). They even came up with a magnet safety alert that went out in 2011. (http://www.cpsc.gov/onsafety/2011/11/magnet-dangers/) Similarly, Baby Matters recalled Nap Nanny products in July of 2010, providing consumers with an upgraded model and/or improved instructions for use. (http://www.cpsc.gov/cpscpub/prerel/prhtml10/10309.html) When initially approached by the CPSC, both companies cooperated with the CPSC and worked together with the CPSC to come to a mutually agreed upon solution to the problem. And that’s a big part of why these lawsuits are so troubling.
If you’ve been through a recall with the CPSC, then you know that any remedy to be given to consumers has to first be approved by the CPSC, and neither of these recalls was an exception to that rule. In both, CPSC staff reviewed the information and the proposed remedies and gave both the official stamp of approval before announcing the recall. Yet, two years later, both companies find themselves on the end of a lawsuit by the CPSC. Why is that?
The CPSC’s public rationale would no doubt be something along the lines of “We tracked the effectiveness of the recalls and found they weren’t effective, further action was necessary and the companies weren’t cooperating so we were forced to file suit.” Ask the companies and I’m sure you’d get a different answer, one the CPSC doesn’t like to hear. Looking at the incidents involving both products, there is a common thread – consumer misuse. With Buckyballs, even though they have been conspicuously labeled for ages 14+ (I just bought another set and found no less than four separate warnings when I opened them), they’ve still found their way into the mouths of toddlers. With the Nap Nanny, they are labeled with numerous warnings not to use in cribs and to make sure the straps are properly attached and fastened, yet incidents have occurred with them in cribs and with improperly attached straps. Consumers are clearly misusing the products, yet the companies are being held responsible. And when they stand up for themselves, the CPSC goes to the only tool left in its toolbox, an administrative lawsuit. Both lawsuits seek to accomplish the same goal – prevent consumers from doing what they shouldn’t (and what they were told not to do) by taking the products away from everyone.
The CPSC’s statement on the lawsuit against the Nap Nanny makers couldn’t be more clear on that point – the CPSC filed suit because negotiations ” failed to result in an adequate voluntary recall plan that would address the hazard posed by consumer use of the product in a crib or without the harness straps being securely fastened.” Consumers had already been clearly warned NOT to use the product in a crib or without the harnesses properly attached, yet because a few bad apples decided to ignore the warnings, everyone else has to pay the price. Baby Matters has announced that this lawsuit has put them out of business, and the numerous testimonials on their website prove that this is taking a useful and safe product out of the hands of many who have found it quite beneficial.
Similarly with Buckyballs, in the CPSC’s statement regarding that lawsuit, it stated “CPSC has received reports of toddlers finding loose magnets left within reach and placing them in their mouths,” and “[T]oddlers have accessed loose magnets left on a refrigerator and other parts of the home.” It could not be more clear that these are instances of bad parenting, not bad product design/manufacture, yet the CPSC’s only solution is to file suit to take them off the market entirely. As with the Nap Nanny, Buckyballs have countless supporters that found their products safe and useful.
In both press releases announcing the lawsuits, the CPSC stated that “discussions” with the companies failed to result in adequate voluntary recall plans. To borrow a phrase from Inigo Montoya, “You keep saying that word. I do not think it means what you think it means.” Discussion connotes a back-and-forth exchange, with both sides open to what the other has to say. Neither of these cases bear that hallmark; the proper term here is bullying – when these two companies stood up to the CPSC and failed to cave in to the bullying, the CPSC filed suit. Both companies have legitimate arguments that most (if not all) of the cited incidents involving these products where a child was injured were the result of consumer misuse, whether it was an adult giving a 4-year old a set of Buckyballs to play with (despite it being very conspicuously labeled 14+), or a parent putting a child in a Nap Nanny in a crib (despite many warnings against doing so). The companies, rather than cave in to the CPSC’s bullying, stood by their arguments that consumers were misusing otherwise safe products and now they’re being sued.
So what does that mean for companies going forward? It’s tough to tell, but it doesn’t paint a pretty picture. On the one hand, if companies don’t cooperate with the CPSC, then they could very well find themselves a defendant in an administrative lawsuit. On the other, if companies do cooperate with the CPSC, they could very well find themselves a defendant in an administrative lawsuit. So where’s the incentive to cooperate in the first place? In the span of six months, the CPSC’s done a great job of vaporizing any trust or spirit of cooperation by showing that even if you do cooperate and work with the CPSC, if you don’t give in to their demands – even if they’re completely unreasonable – you may very well end up in court.
Unfortunately, I fear that the outcome of both of these cases won’t be of much help to either the CPSC or those of us on the outside. Maxfield & Oberton has, for whatever reason, decided to walk away from making and distributing Buckyballs, so that lawsuit is essentially moot; the CPSC managed to bully them into submission. For Nap Nanny, the CPSC has forced them out of business, meaning they likely lack the funds to mount a substantial defense. Again, the CPSC has bullied its way to what it considers a victory.
All of this begs the question – what’s the point of cooperating in the first place if you’re just going to be called into court later?