February 22, 2011

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By Sean Oberle

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Once a product has been recalled, can it ever be re-sold? Yes.

Take for instance last week’s recall by Summer Infant involving baby monitors. In that corrective action, the company is offering consumers warning labels and safety instructions aimed at preventing the strangulation deaths of babies.

I contacted CPSC spokesman Scott Wolfson and asked if those monitors could be re-sold once the labels were applied. He told me, “Once the proper label is on the recalled monitors, they can be re-sold.”

I also asked, “More broadly, does the CPSIA bar the sale of products that were the subject of recalls but that have been fixed, retrofitted or otherwise altered to meet a remedy?”

His answer: “Generally, once a recalled product has been repaired in a manner consistent with the agreed upon corrective action plan, the product can be re-sold.”

My interest in these questions was sparked by an anonymous comment on the blog of Rick Woldenberg, Learning Resources chairman. That unknown person complained, “[S]ince this product has been recalled, it's now illegal to resell.”

The correct statement would add, "...without the warning labels."

By the way, although Woldenberg has raised valid and lucid criticism about CPSC in the past, I think he’s off base in his criticism that “CPSC Recalls Baby Product for Missing Warning Label”.

Woldenberg seems to be confusing the reason for the recall and its remedy. The reason is that two babies died. The remedy cited in CPSC press release is the labels and instructions. The labels are not the reason ... not the cause; not the impetus.

Further, CPSC’s press release explains, “Summer Infant has initiated a campaign to provide new on-product labels for electric cords and instructions to consumers with the recalled video monitors” (my emphasis).

When I asked CPSC’s Wolfson if that meant this action was Summer’s idea, he told me yes.

This recall is not about “missing” warning labels. It’s certainly not about, as Woldenberg puts it, “an ex post facto requirement dreamt up by the CPSC.”

This is about a company – concerned that its products were involved in the deaths of two infants – dealing with CPSC to come up with a remedy, and CPSC agreeing with the company's idea.

Meanwhile, the company is going beyond CPSC’s press release, offering to replace clips originally supplied with the monitors in case consumers have lost or discarded them. It writes, “In conjunction with the CPSC, Summer Infant is issuing a voluntary recall to provide new product label and instructions for baby monitors with electric cords. Summer Infant is also offering consumers additional wall-mounting security clips for their cords should they have thrown the set that originally came with their baby monitor away.”

The labels and instructions are "in conjunction" with CPSC and the clips are "also offered." Offering them seems to be about good customer service, not about Summer’s agreement with CPSC.

Would reselling the monitors without the clips open a reseller to legal risk as Woldenberg suggests in a subsequent blog? Perhaps. But it's hard to blame CPSC for that since CPSC doesn't mention the clips.

Should CPSC quash Summer's offer of the clips to avoid such confusion? Perhaps -- after all, CPSC is big on offering unified messages in recalls. That's one of the reasons recall notices don't go public until all the negotiation is over.

But doing that puts the agency in the awkward position of asking a company to refrain from offering to replace a safety component. Just as awkward, however, is including the clips in the recall. It's not like the company failed to supply them in the first place.

This situation also is not about anything new or changed at CPSC. Activity like this has occurred between CPSC and regulated companies thousands of times in the 39 years since the agency’s creation in 1972. This recall could have happened in 2001, 1991, 1981 or 1972 as easily as in 2011 (albeit involving products with different technology). Indeed, it perhaps could have occurred in 1971 or earlier when CPSC was nothing but the Bureau of Product Safety within the Food and Drug Administration.

In any event, I have one more point: CPSC doesn’t recall products1. Companies do. Normally, I’d let that common error slide because pointing it out simply would be pedantic. Here, however it’s pertinent to understanding what happened.

The company “initiated” a remedy, and CPSC went along with it. That doesn't seem to be anywhere in the ex post facto ballpark, but maybe a lawyer out there could make a stab at telling my readers how it is.

Sean Oberle is publisher of Product Safety Letter, Product Safety Forum, and Product Safety Daily. Reach him at (301) 229-1027, seanoberle@productsafetyletter.com

1 Except perhaps under the agency’s rarely-used, new powers for mandatory recalls under CPSIA section 214, but even then CPSC does the mandating, not the recalling. Moreover I expect that in the very unusual situations when CPSC acts unilaterally, it’ll probably fall out like the Simplicity saga did, with CPSC actions limited to tasks like publicity and soliciting help from retailers or other companies.