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Volume XII, Number 144


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COVID-19: Three Steps Companies Can Take to Reduce Risk of Regulatory Side Effects

Current thinking from public health experts is that COVID-19 will affect the American economy for several months. But during this period businesses still have responsibilities to their brands and obligations under law. And unlike during last year’s government shutdown, the pandemic has forced government agencies like the U.S. Consumer Product Safety Commission (CPSC) to operate differently, but it hasn’t closed its doors. For that reason, businesses will still have legal obligations and face the possibility of CPSC enforcement efforts.

Here are three steps companies can take to protect their brands and reduce the risk of CPSC enforcement.

  1. Manage Supply Chains

Of course, it’s always important to keep an eye on your supply chains to make sure errors, substitutions, or other problems upstream don’t creep into your products. Unfortunately, supply chains vary and may be more unstable than usual right now.

With factories, warehouses, and other key supply network nodes limited or shut down, you or your suppliers may be lacking key components for your products. Employees’ absences or relocations may be reducing capacities or forcing people and systems into unfamiliar roles. These factors increase the possibility of errors.

Even if your suppliers are still able to meet demand, their suppliers may not be. They may be compelled to substitute. Work closely with suppliers to understand what challenges they face and what steps they’re taking to address them.

If disruptions are preventing your suppliers from meeting demand, you may need to explore substitution opportunities. As you look for, evaluate, and onboard new suppliers, try not to let the urgency of the moment crowd out due diligence. Try to vet potential suppliers as you would during more typical times. And as always, “trust but verify” applies: In-person audits may be a challenge, but other tools – such as random sampling and increased end-of-line testing – can help guard against latent problems.

The right contract terms should address all of these supply chain issues. They may provide substitution rights for you or your suppliers, they may have “force majeure” provisions that protect your suppliers in the event of significant disruptive events, and they may require notifications up or down the supply chain. Experienced counsel should review your contracts to ensure that you are protected, and if you need to sign up new suppliers, how you can be better protected going forward.

  1. Verify Communication and Information Plans

The CPSC has announced that public briefings and meetings with staff or commissioners may be postponed or cancelled but that “Companies are reminded of their statutory obligation to report under Section 15(b) of the Consumer Product Safety Act.”

To meet these obligations, companies should try hard to keep information flowing. The CPSC presumes that a company collectively knows any information received by any employee “who may reasonably be expected to be capable of appreciating the significance of the information,” and that any safety-related information will reach the CEO or the employee responsible for complying with the CPSA within five business days. Given the size and complexity of many modern businesses, that timeline is short under the best of circumstances, and the current environment makes it even harder, but the CPSC is unlikely to revise its estimate of how businesses should communicate.

Further, after you have filed an initial report, your obligations may not end there. The CPSC may follow up with a full report request that will generally include more than 25 questions and a two-week turnaround. Companies need to coordinate across business functions to respond fully and in a timely manner – another challenge in this environment.

Where companies who have reported are facing difficulties in coordinating responses to full report requests or follow-up questions, the agency is more likely to be understanding, but companies will need to be candid about their limitations and request extensions where necessary. Seek the guidance of experienced counsel to help bridge any gap between the agency’s expectations and your capacities.

  1. Know Who’s Responsible and Where They Are

Companies should also consider how they will make decisions about product reporting. Pulling together a quick meeting to review a potential safety concern will be more difficult as information sources and decision-makers face operational challenges, and the urgency of a particular matter may not be conveyed effectively over email or by phone. The risk of a safety decision being delayed because it’s not clear who should make it or how is likely to be higher than in normal operations.

Be mindful of your safety and compliance plans and policies for possible decision-making bottlenecks may be and develop contingency plans. There likely isn’t bandwidth for the full mock-recall exercises we’d normally recommend in developing a safety plan, but companies should ask teams to think about who would need to be involved in a safety decision and what the contingencies are. If one senior leader is charged with the final decision on whether or not to report a potential hazard, make sure key stakeholders have multiple ways to get in touch with that leader and identify other leaders who could act if necessary. These elements should be in any robust safety plan regardless, but the added organizational pressures of the current environment underscore their value.

The disruptions caused by the pandemic may linger for months or years. Companies should keep in mind the legal and regulatory responsibilities they face and develop strategies to meet those responsibilities. These efforts will be key to reducing the risk that the CPSC will come calling

© 2022 ArentFox Schiff LLPNational Law Review, Volume X, Number 85

About this Author

Thomas M. Crispi  complex litigation, and products liability legal specialist

Thomas M. Crispi focuses his practice on complex litigation, with a concentration on products liability, mass tort and pattern litigation. He has experience managing and coordinating all aspects of complex litigation, including analysis of claims, negotiating global settlement criteria and approaches, conducting trials, depositions and conferences, drafting legal memoranda, briefs and appeals, arguing motions and overseeing and directing associates during complicated discovery projects.

He has prepared presentations for clients regarding litigation strategies and...

Jonathan Judge Schiff Hardin CPSC Regulatory Attorney and Trial Lawyer

Jonathan Judge is a trial and regulatory lawyer who believes in the power of analytics to help clients make better decisions.

Jonathan counsels, defends, and tries cases for manufacturers of juvenile, household and industrial products in matters across the United States, drawing from his depth of experience and a devotion to his clients. Whether his client is a product manufacturer seeking regulatory compliance or a corporation facing a substantial lawsuit, Jonathan knows that every client has a story.

From Agencies to Juries...

Mike Gentine Schiff Hardin Product Liability Lawyer Washington DC

With experience spanning federal government, private practice, and in-house roles, Mike advises clients on legal and regulatory matters particularly in the area of consumer goods and product safety.

Mike has held multiple positions at the U.S. Consumer Product Safety Commission (CPSC). He served as senior counsel for the Office of CPSC Commissioner Joseph P. Mohorovic from 2014-2017, where he advised on various policy, enforcement, and ethics issues. He led several efforts to reform rules and regulations, including an initiative to reduce the paperwork burden on CPSC-regulated...