Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 59 Reporting to the CPSC does not mean that a company has to actually engage in a recall of the product. That would be a decision that would be made, often in conjunction with the CPSC, based upon closer examination and evaluation of the product, including testing to see if the incidences of injury or indications of possible harm are the result of simple consumer misuse; a one-off manufacturing defect; a lapse in quality control; or a larger design issue. Even if a recall is warranted, it doesn’t mean that the marketer necessarily has to recapture the product from the marketplace, particularly if another remedy is feasible, such as providing a fix to consumers that would alleviate any design defect. Failure to report information in a timely manner to the CPSC, however, can lead to a claim by the CPSC for penalties, regardless of the ultimate resolution with respect to the kind of corrective action that might be warranted. The initiation of an actual product recall, also sometimes called a “voluntary corrective action,” could potentially result in lawsuits alleging false advertising, including class action filings, particularly where the advertising copy for the product makes claims about the product that appear to be at odds with respect to the announced reason for the recall. However, the initiation of such a recall is usually voluntary, and not a concession by the manufacturer, distributor, or retailer that the product is actually defective, or that claims made with respect to the characteristics of the product are not true, and it would be incumbent on a plaintiff to prove the elements of a false advertising claim. Mandatory recalls are very rare. A wealth of information about consumer product safety, reporting, and corrective actions is available on the website of the CPSC, at www.cpsc.gov. The following guides are available to download: Business Desktop Reference Guide, Recall Handbook, Regulated Products Handbook, and Manufacturer’s Guide to Developing Consumer Product Instructions .