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CPSC Sues to Force Jogging-Stroller Recall

The U.S. Consumer Product Safety Commission’s (CPSC) first lawsuit of 2018 is against the maker of popular lines of jogging strollers, Britax Child Safety, Inc. The complaint, to be heard in administrative proceedings, concern’s Britax’s B.O.B. jogging strollers. The company and its 2011 merger partner, B.O.B. Trailers, Inc., have been importing and distributing the strollers since 1997. At issue are about 493,000 jogging strollers imported and distributed between December 2011 and September 2015. They include a range of single- and double-seated models.

Detaching front wheels are the central issue of the case. CPSC takes the view that the three-wheeled stroller models can operate when the front wheel is not properly secured, leading to the front wheel detaching when the stroller is moving, which in turn causes the stroller to stop and tip over. The CPSC’s position is that the detachment issue reflects a design defect. The company argues that improper use, rather than any design flaw, is the cause of the problem, saying: “the[ detachments] involve an improperly secured quick[-]release mechanism … or jogging with the swivel wheel unlocked.”

According to the agency’s press release, it has received about 200 complaints about wheels coming off the stroller since 2012, with reports of 50 injuries to children and 40 to adults, including head and teeth injuries, bruises, torn ligaments, and cuts.

When CPSC asked the company to conduct a recall, the company refused, arguing that misuse rather than any defect in the product was the cause. By a 3-to-1 vote, a majority of CPSC Commissioners approved filing an administrative complaint seeking to compel Britax to recall the strollers, inform the public of the defect, and offer a remedy in the form of repair, replacement, or refund.

Britax has been willing to conduct recalls with CPSC before. In 2011, for example, the company jointly recalled its B-Nimble strollers over a risk of brake failure. It conducted other recalls with CPSC in 2014, 2016, and 2017. Notably, although CPSC has been receiving complaints about wheel detachment since 2012, only now has the agency attempted to force a recall. The company’s refusal to conduct a recall in this situation suggests its conviction that user error is to blame, a point emphasized in the company’s statement: “While we respect the CPSC and its mission, we cannot agree to recall a product that is not defective.”

Questions of safety and user misuse are complicated and necessarily involve subjective judgments. Additionally, hazards that appear clear in hindsight are often hazy at the outset. It is common for reasonable people, including safety experts inside and outside government, to disagree about what constitutes a safety hazard, the scope of a company’s responsibility for improper installation or misuse of a product by consumers, and about what constitutes an acceptable degree of risk.

Although administrative and judicial lawsuits to force recalls have been exceedingly rare for CPSC, the agency has initiated several in recent years. These include suits to force recalls and to recover civil penalties from companies who were allegedly late in reporting substantial product hazards. The Britax suit represents a continuation of this hard-charging enforcement effort. Further, it suggests the willingness of a majority of commissioners to support pursuing administrative remedies when companies disagree with agency conclusions. Companies working with CPSC on potential safety issues should bear this in mind as they work on joint solutions, just as they should remember that the agency’s jurisdiction extends to products that fail to comply with a regulatory requirement, pose an unreasonable risk of serious injury or death, or contains a defect that poses a substantial risk of harm.

© 2018 Keller and Heckman LLP

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About this Author

Sheila Millar, Keller Heckman, advertising lawyer, privacy attorney
Partner

Sheila A. Millar counsels corporate and association clients on advertising, privacy, product safety, and other public policy and regulatory compliance issues.

Ms. Millar advises clients on an array of advertising and marketing issues.  She represents clients in legislative, rulemaking and self-regulatory actions, advises on claims, and assists in developing and evaluating substantiation for claims. She also has extensive experience in privacy, data security and cybersecurity matters.  She helps clients develop website and app privacy policies,...

202-434-4646
Nathan Cardon, Keller Heckman, product safety attorney, labor lawyer, consumer protection law, cybersecurity matters
Associate

Nathan Cardon joined Keller and Heckman in 2013.  Mr. Cardon practices in the areas of product safety, privacy, and advertising.

In his product safety practice, Mr. Cardon counsels clients on risk management and product safety strategies, as well as on compliance with Consumer Product Safety Commission (CPSC) requirements, including new requirements under the Consumer Product Safety Improvement Act of 2008 (CPSIA). 

In the privacy and advertising practice, Mr. Cardon is involved in a wide variety of privacy, data security, and other consumer protection matters.  This includes compliance with laws and regulations governing children's privacy, marketing to children, mobile apps, commercial email messages, online behavioral advertising (OBA), contests and sweepstakes, endorsements and testimonials, data breach notification, and cybersecurity. 

202-434-4254