If your product is not the cause of death or injury, it is a warranty issue.

Avalanche Probes do not cause suffocation.

The Consumer Products Safety Council (CPSC) has a lot more pull, power and weight now days. Mostly because the CPSC had its power to fine and the amount, it could fine increased. However, just because a product is not working right does not mean it is subject to a CPSC recall.

Here are the requirements for a recall according to the CPSC as found in its Recall Handbook.

(1) fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard upon which the Commission has relied under section 9, (2) fails to comply with any other rule, regulation, standard or ban under the CPSA or any other Act enforced by the Commission, including the Flammable Fabrics Act, 15 U.S.C. §1193-1204; the Federal Hazardous Substances Act, 15 U.S.C. § 1261-1278; the Children’s Gasoline Burn Prevention Act, 110 Public Law 278 (July 17, 2008), the Virginia Graeme Baker Pool and Spa Safety Act, 110 Public Law 140 (with amendments), the Poison Prevention Packaging Act, 15 U.S.C. § 1471-1476, and the Refrigerator Safety Act; 15 U.S.C. § 1211-1214; (3) contains a defect which could create a substantial product hazard, or (4) creates an unreasonable risk of serious injury or death.

The first three normally do not apply to outdoor recreation products.

The fourth one is the one most people manufacturing products in the outdoor industry must deal with “creates an unreasonable risk of serious injury or death.”

That means the product is the cause of the injury or death. There is a link between the use of the product by a consumer and the consumer’s injury or death.

At a website page, the CPSC defines the requirements for a recall slightly differently, but generally the rules are the same.

Duty to Report to CPSC: Rights and Responsibilities of Businesses

If you are a manufacturer, importer, distributor, and/or retailer of consumer products, you have a legal obligation to report the following types of information to the CPSC:

·         A defective product that could create a substantial risk of injury to consumers;

·         A product that creates an unreasonable risk of serious injury or death;

·         A product that fails to comply with an applicable consumer product safety rule or with any other rule, regulation, standard, or ban under the CPSA or any other statute enforced by the CPSC;

·         An incident in which a child (regardless of age) chokes on a marble, small ball, latex balloon, or other small part contained in a toy or game and that, as a result of the incident, the child dies, suffers serious injury, ceases breathing for any length of time, or is treated by a medical professional; and

·         Certain types of lawsuits. (This applies to manufacturers and importers only and is subject to the time periods detailed in Sec. 37 of the CPSA.)

Failure to fully and immediately report this information may lead to substantial civil or criminal penalties.  CPSC staff’s advice is “when in doubt, report.”

Again for the outdoor industry, the issue is, does your product create an unreasonable risk of serious injury or death. The key word is “create.”

Equipment used by friends or Search and Rescue to find you, after you are in a jam, injured or dead, cannot be the cause of your death. What you did prior to being found is what caused your death.

A bad example is recalling an avalanche probe.

Here is the CPSC website concerning an avalanche probe recall.

If you read the problem as defined under a hazard headline, this is what you find.

“This can interfere with finding someone buried beneath the snow, posing a suffocation hazard.”

First, I do not believe that an avalanche probe can create a suffocation hazard. However, that seems to be what the website, as explained by the manufacturer, is saying.

Second, there a lot of ways of dying in an avalanche, suffocation is one of them and in the US, not necessarily the main reason for avalanche deaths.

Third of the probe to work properly, may make finding someone difficult or impossible. However, IT IS NOT THE CAUSE OF THEIR BURIAL. Failure of the avalanche probe to work is not the reason why the person is suffocating. Venturing out into avalanche terrain and triggering an avalanche is the reason why the person is injured or dying.

The avalanche probe did not create the serious risk of injury or death.

Why is this a problem?

1.     It places a burden on other manufacturers to do a recall when they are not needed. This is sort of like waking the sleeping giant. The CPSC now believes that avalanche rescue equipment should be recalled because it is the cause of the death.

2.     Lawsuits. You can purchase a software program that grabs the recall notices from the CPSC and posts them on your websites with the heading “have you been hurt by a ………………………….” These posts are found on plaintiff’s attorney’s websites. They are looking for people who have been injured by a recalled product because the lawsuit is easy. They have proof from the federal government the recall was defective. These never get to trial; they just get to the how much stage. The manufacturer’s response to the lawsuit is “how much should I write the check for….”

3.     Figure lawsuit triggers. Searches will be set up to find any reports of injuries or fatalities and avalanche probes. Every time the search finds an article like this, attorneys will dig, contact family members to see if there is money there.

If you want an example, remember the Formula 1 champion Michael Schumacher? He suffered a severe head injury skiing. One of the investigators looking at his helmet saw the GoPro mount and speculated the GoPro mounts changed the ability of the helmet to protect someone’s head. (See Michael Schumacher’s brain injury may be blamed on his GoPro.)

A month later, a law firm in the west sent out press releases looking for people who had injuries from wearing helmets with GoPro cameras attached. This press release was even reported by the industry by Sports One Source (subscription site) (See Law firm is going after GoPro for two different ways a video camera can allegedly lead to a fatality: the camera does not kill you, using the camera kills you????)

Avalanche probe manufacturers are going to write nuisance checks (or actually their insurance companies) to get stupid lawsuits to go away. You can win the lawsuit for $250,000, or you can get it to go away for $25,000. What do you think your insurance company is going to do?

Do Something

1.     If you have a product with a problem, figure out if it needs to be recalled before recalling it. A warranty issue is not a recall. If the product does not violate a rule regulation or industry standard, cannot be swallowed by a child or just needs fixed and does not injure or kill someone it probably does not need to be recalled.

2.     If your product is subject to a recall, based on your analysis, not the CPSC’s because the entire world should be recalled according to the CPSC, make sure the CPSC understands what your product does.  This is not easy. I’ve explained climbing gear, crampons, avalanche airbags, etc., to the CPSC, and honestly they do not understand. Ice in Washington DC is what you put in a drink, and snow is what allows you to stay home from work.

I’ve sent product to the CPSC to test that has come back in the same condition I sent it untested, unopened and unused. I’ve no found that sending links to online videos is more effective sometimes than sending product.

4.     If you must do a recall, get the language right on why your product is being recalled. It is your product and your recall being supervised by the CPSC. You need to work with the CPSC to get them to understand the issues, how the product is used and what the language must say. If you don’t you will create nightmares for yourself and the rest of the industry.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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