The Controversial Law that Shields Manufacturers at the Expense of Consumers

December 5, 2023 Wrongful Death

When you purchase a product, you should be able to expect that it is safe and will work as it should. There are several agencies that protect citizens from harmful products in the United States, such as the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA). Most of these agencies have broad authority to act when they determine that a product is dangerous to the public.

Unfortunately, one agency — the Consumer Product Safety Commission (CPSC) — is hamstrung in ways that other agencies are not. This is due to a controversial law that was passed in the 1980s known as Section 6(b) of the Consumer Product Safety Act (CPSA).

Consumer Product Safety Act Section 6(b)

The CPSA was passed by Congress in 1972. However, Section 6(b) wasn’t added until almost a decade later. The original act created the CPSC and granted it the power to regulate consumer goods not covered by other agencies. Thus, the CPSC doesn’t regulate canned food because that is regulated by the FDA, for example. Until 6(b) was added, the CPSC had nearly unrestricted authority to advise the public about dangerous products. Section 6(b) places significant limits on that authority.

The new restrictions added by this section limit how the CPSC can disclose product and manufacturer information to the public. According to these restrictions, the CPSC needs to advise a manufacturer before it warns the public about a defective product. The manufacturer can object to the wording of that warning or any of the information included.

If the manufacturer and the CPSC can’t agree to the details of the warning, the manufacturer has the right to sue in order to block its release. No other federal regulatory agency is limited in the same way. The result of this limitation is that the CPSC has to wait weeks — and sometimes years — before it can inform the public that a manufacturer is selling a dangerous product.

Dangers of Section 6(b)

One of the main duties of the CPSC is to publicize recalls when it determines that a product is dangerous. For example, the CPSC issued a public recall for Samsung washing machines after some units built between 2011 and 2016 exploded. The sooner these recalls can be publicized, the fewer people are likely to get hurt or killed. But because Section 6(b) allows manufacturers to delay this notification, people may get hurt in the time between when the CPSC determines there is a danger and when it can notify the public.

And this isn’t only a theoretical concept. After the CPSC determined that a Peloton treadmill was responsible for the death of a child in early 2021, the company fought back against efforts to recall the product. Even after the company eventually publicly admitted the product was responsible for this child’s death and a life-altering injury to another child, the CPSC wasn’t able to announce a recall for another two months!

Efforts to Repeal Section 6(b)

Both the head of the CPSC and multiple congresspeople have called for action regarding Section 6(b). They assert that delays caused by this section have and will continue to cost lives. Senator Richard Blumenthal and Representative Jan Schakowsky introduced a bill in March 2023 that would repeal the section completely. However, this bill currently faces an uphill battle in both chambers as industry groups are fighting to prevent the repeal.

Why Does Section 6(b) Exist?

Section 6(b) was implemented during the Reagan administration. In the early 80s, the administration believed that the CPSC had too much power and could potentially destroy businesses if it made a mistake. Originally, the administration wanted to abolish the CPSC. However, it eventually compromised by agreeing to add section 6(b) to the existing CPSC law.

The goal of this section was to protect the reputation of corporations by ensuring that the CPSC never issued inaccurate information. Recalls could potentially cause panic or make the public lose faith in a company, especially if their product caused deaths. This was true whether the recall information was accurate or not. While this was a reasonable goal, Section 6(b) stripped too much power from the CPSC to protect the reputation of corporations during the extremely rare situation that the agency made a mistake.

What the CPSC Can Do

The CPSC has very little authority to thwart this section. When the agency accidentally shares information that should be confidential, as has happened in the past, it is required to remove that information as quickly as possible. After several breaches of Section 6(b) between 2017 and 2019, the agency implemented a two-step process to ensure that these regulations aren’t violated again in the future.

The only other time that Section 6(b) regulations aren’t followed is when someone leaks the information without authorization. This has previously happened, such as when Consumer Reports was sent information about fatalities involving a Fisher-Price rocking sleeper in 2019. However, these types of leaks are few and far between, and they are not authorized by the CPSC. Anyone discovered leaking this type of information could face criminal or civil charges.

What This Law Means for Consumers

While this law presents a danger to consumers, it also makes it easier for victims of defective products to sue the manufacturer. If you or a family member was harmed by a defective product, you need to prove that you were unaware of the danger to receive compensation. This is much easier to prove if the manufacturer has prevented the CPSC from issuing a recall for the product. Typically, once a recall is issued, the clock starts ticking on personal injury claims. The more time that has passed since the recall was issued, the harder it becomes to claim that you weren’t aware that the product was defective.

Of course, compensation can be little consolation if you or a family member was seriously injured by a defective product. Consumers shouldn’t have to wonder whether a product is dangerous before they buy it. The CPSC exists to remove that concern, but Section 6(b) works to prevent the CPSC from providing the security that it is designed to instill in consumers.

What to Do After a Defective Product Injury

If you or a loved one was harmed by a defective product, it’s important to contact Terry Bryant Accident & Injury Law as soon as possible. Our product liability and wrongful death attorneys can immediately start investigating your case. We know how to determine whether a product was defective and whether that defect led to an injury or death.

Time is not on your side in a product liability case. Statutes of limitations can prevent you from filing a lawsuit if you wait too long, and companies may file for bankruptcy if their product is liable for too many injuries. The sooner our attorneys can start working on your case, the more likely it is that you will get the compensation you deserve for the harm you suffered.

Contact a Houston Product Liability Lawyer Today

The CPSC may be limited in how well it can protect you, but the experienced product liability attorneys at Terry Bryant Accident & Injury Law know the intricacies of the law and can effectively advocate on your behalf. If you or a loved one was seriously injured by a defective product, call us now at 713-973-8888 or toll-free 1-800-444-5000 for a free and confidential consultation.

Attorney Terry Bryant

Attorney Terry BryantTerry Bryant is Board Certified in personal injury trial law, which means his extensive knowledge of the law has been recognized by the Texas Board of Legal Specialization, setting him apart from many other injury attorneys. The 22 years he spent as a Municipal Judge, Spring Valley Village, TX also provides him keen insight into the Texas court system. That experience also helps shape his perspective on personal injury cases and how they might resolve. This unique insight benefits his clients. [ Attorney Bio ]

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