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Monday November 19, 2018

CPSC OKs Multi-Step Eligibility Process for Britax Stroller Remedy

Owners of BOB jogging strollers will have to participate in an instructional program and then categorized their abilities before being eligible for replacement parts or other offerings under a settlement agreement between CPSC and Britax. Additionally, only consumers who bought units made January 2009 to September 2015 will be entitled to remedies, which are being called "incentives." CPSC's complaint (PSL, 2/19/18) had included units made since 1997. That filing sought to force a recall. The company declined to do one voluntarily, citing compliance with mandatory rules and asserting users' failure to follow instructions.

 

Commissioners voted 3-2 along party lines earlier this month to approve the agreement (bit.ly/2Kjy0UX), just made available. Democratic Commissioners Elliot Kaye and Robert Adler jointly issued a dissenting statement (see below).

 

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Under the agreement, Britax will create a "robust, intensive campaign" to instruct consumers how to operate the quick-release mechanism associated with the wheel detachment incidents that prompted CPSC's attention. That effort will include at least a video, and there are detailed instructions in the settlement for its contents.

 

Distribution will be on BOBGear.com. Promotion will be by emails to consumers and dealers as well as via secondary markets like eBay, Craigslist, etc. Britax also will use BOB Gear social media accounts to attempt to reach consumers.

 

Consumers who meet the 2009-2015 timespan restriction and who take part in the instructional effort then must self-identify as in one of two categories to receive anything.

  • Those who tell the company they still are concerned about their ability to safety operate the quick-release mechanism will get a modified mechanism, a through-bolt to alternatively attach wheels, or a 20% discount on a new stroller.
  •  

  • Those who tell the company they are confident will get the 20% discount offer.

As can be typical in corrective actions, consumers will have to provide serial numbers and "other unique product identifiers" before being eligible for any of the offerings.

 

Britax will not be required to honor requests made after 12 months, but it will need keep an instructional video on the BOBGear website for another 12 months after that.

 

In their dissent, Kaye and Adler, criticize the agreement as "misleading." They point to wording in the settlement that forbids characterizing the activity as a "recall." They note that it does involve a corrective action so assert that avoiding the word will limit attention. They further criticize a planned message from Britax to retailers and dealers that uses the phrase "without a recall." They write:

"[D]escribing the Agreement as an information campaign 'without a recall' misleadingly directs the public's attention away from the actual terms agreed to by the parties. It's not quite analogous to a tree falling in a forest with no one to hear it, but it's close. Having an agreement that provides relief without anyone being fully alerted to the nature of the relief is pretty much no relief at all."

Adler and Kaye also fault the timespan limit, asserting:

"Nowhere in the Agreement is there any explanation why the fix is so limited in time. If the pre-2009 strollers do not contain the alleged defect, the parties should have explained this. If, on the other hand, the parties believe that few, if any, pre-2009 strollers remain in use, we would like to see evidence of this."

They additionally worry:

"[W]e fear that other respondents will invoke this agreement as a precedent in future recalls, thereby lessening safety for far more consumers than are affected by this agreement."

Britax acquired maker BOB Trailers in 2011. When the agency filed its administrative complaint, it cited 200 incidents with 97 injuries, 50 involving children. Britax disputed that the problem was a defect, asserting the issue was failure to follow instructions. The case additionally had the interesting quirk of constitutional questions about the appointment of the administrative law judge in charge.