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COMMITTEE ON COMMERCE,SCIENCE, AND TRANSPORTATIONOFFICE OF OVERSIGHT AND INVESTIGATIONSMINORITY STAFFFailed Recalls:The U.S. Consumer Product SafetyCommission Must Take New Steps toImprove Recall EffectivenessSTAFF REPORT FOR RANKING MEMBERMARIA CANTWELLDECEMBER 19, 2019

Table of ContentsExecutive Summary . 1THE BOB STROLLER . 2I.Background. 2II.2014 BOB Jogging Stroller Recall for Partial Fingertip Amputations . 3III.2017 BOB Jogging Stroller Recall for Fall Hazards. 3IV.The 2019 “Information Campaign” for BOB Jogging Stroller Wheel Detachments. 4A.B.C.The Commission Staff Investigation, Request for Recall, and CommissionAdministrative Lawsuit . 4The Commission Membership Changes . 5The New CPSC Majority Caves to Britax. 6THE FISHER-PRICE ROCK ‘N PLAY SLEEPER . 7A.B.The Commission’s Failure to Inform the Public of Deaths Associated with the Rock ‘nPlay Sleeper . 7The Commission Deliberately Mischaracterizes the Recall Remedy for the Rock ‘nPlay as a “Refund” for All Consumers . 8RESIDENTIAL ELEVATOR HAZARDS . 8THE CURRENT CPSC APPROACH TO ALLOWING AMORPHOUS SAFETYWARNINGS OR “COUPON” AND “VOUCHER” REMEDIES FOR RECALLSUNDERMINES EFFORTS TO REMOVE DANGEROUS PRODUCTS FROM THESTREAM OF COMMERCE . 10CONCLUSION AND RECOMMENDATIONS . 11ExhibitsExhibit AExhibit BExhibit CExhibit Dii

Exhibit EExhibit FExhibit GExhibit HExhibit IExhibit JExhibit Kiii

Failed Recalls:The U.S. Consumer Product Safety Commission Must Take New Steps to Improve RecallEffectivenessEXECUTIVE SUMMARYA series of high-profile failures to effectively recall dangerous products has called intoquestion the ability of the U.S. Consumer Product Safety Commission (CPSC) to adequatelyprotect American consumers from unsafe and defective products. An extensive review by U.S.Senate Committee on Commerce, Science, and Transportation Minority staff shows that thesefailures have not occurred due to staffing shortages or lack of legal authority. Instead, they arethe result of a pattern of inappropriate deference to industry that has characterized CPSCleadership in recent years.For example, in the case of the BOB jogging stroller, where approximately 200 reportswere made of wheel detachment resulting in approximately 100 injuries to children and adults,CPSC leadership at the time ignored staff warnings urging an immediate recall of the productand terminated a lawsuit against Britax, the company that manufactures the stroller, for animmediate recall. A similar situation developed with regard to the Rock ‘n Play infant inclinedsleeper, where the Commission had learned that more than 30 infants had died and yet failed toquickly act.Following media reports that highlighted serious defects with both products and publicoutcry, the CPSC finally made public information about injuries and deaths associated with theseproducts, and announced remedial actions. In both cases, the remedial actions were publiclybilled as comprehensive “recalls” by the companies.An examination of documents associated with both products by Senate CommerceCommittee staff shows, however, that the “recalls” agreed to be the Commission function less astrue remedies for consumers, and more as incentive programs to bring more business to thecompanies involved in the recalls.1 Instead of offering refunds for many consumers withdefective BOB strollers, the CPSC instead settled for allowing the company to offer couponstowards the purchase of additional products. Similarly, in the case of the Rock ‘n Play infantsleeper many consumers will never get a refund. Instead, they will be offered a voucher foradditional Fisher-Price products. Finally, in the case of residential elevators with knownhazards, then-Acting Chairman Ann Marie Buerkle did not nothing other than issue a “safetywarning” that shifted blame for defects from the manufacturers to families and state regulators.1This investigation was initiated by an April 8, 2019, letter from Senate Commerce Committee RankingMember Maria Cantwell to then-CPSC Acting Chairman Ann Marie Buerkle requesting information related to theCommission’s handling of the BOB jogging stroller defect investigation, as well as other product defectinvestigations. This initial request was then supplemented by a June 27, 2019, letter from Ranking MemberCantwell to Acting Chairman Buerkle requesting information on the Commission’s handling of deaths and injuriescaused by defective residential elevators. Copies of these letters are attached as Exhibit A. In response, theCommission produced thousands of pages of documents to Committee Minority staff. In addition, CommitteeMinority staff also reviewed numerous other open source documents, as well as regulatory information from otherconsumer product safety regulators around the world.

These settlements are at odds with traditional recall agreements negotiated by the CPSC,and they are at odds with the statutory mission of the Commission. Rather than providingconsumers with a specific remedy that repairs all impacted products or a refund to remove thedangerous products from homes, these recalls perversely serve as marketing tools to allow therecalling company to sell additional products to consumers. Far from serving as a deterrent, thenew CPSC approach focuses on limiting legal liability, minimizing recall costs, and providingconsumers with a largely useless “remedy” option.In this report we closely examine Commission actions involving the BOB joggingstroller, the Fisher-Price Rock ‘n Play inclined infant sleeper, and residential elevator safety thatillustrate a failure by past CPSC leadership to adequately protect consumers from the dangers ofthese product hazards. The report also includes recommendations to ensure that theseCommission failures are corrected and not repeated by new leadership at the CPSC.2THE BOB STROLLERI.BackgroundThe first BOB jogging stroller was introduced by BOB Gear in the late 1990s, and wasbilled as the first “Sport Utility Stroller.”3 BOB Gear was later acquired by Britax Child Safety,Inc. (Britax) in 2011.4 Among other features, according to Britax, the stroller came with a“patented suspension system, tough polymer wheels, easy-fold frame, a reclining, padded seatand several other features no one else had ever put on a stroller before.”5 In 2005, BOBintroduced the “BOB Revolution,” which, according to Britax, was the first stroller that had a“swiveling front wheel.”6 As described by Britax, the “rotating front wheel made turning tightcorners, walking narrow aisles and navigating crowded sidewalks a sheer breeze.”7 In addition,the front wheel came with a “locking mechanism” that could “lock forward for uneven terrain orfaster speeds.”8 These and other descriptions gave consumers a false sense of confidence that thestroller was safe for use. In fact, the stroller suffered from dangerous defects that the companyfailed to disclose to the public.II.2014 BOB Jogging Stroller Recall for Partial Fingertip AmputationsOn January 30, 2014, the CPSC, in conjunction with the Canadian product safetyregulator, Health Canada, announced the recall of approximately 225,000 BOB jogging strollers2On June 18, 2019, Acting Chairman Buerkle announced her intention to withdraw her nominations to serveas Chairman of the CPSC and for another 7-year term, and stated that she would leave the Commission on or aboutOctober 27, 2019. See U.S. Consumer Product Safety Commission, Statement: Acting Chairman Ann MarieBuerkle Announces Withdrawal of her Nominations, June 18, 2019, available at arie-buerkle.3BOB Gear Website: About, available at http://www.bobgear.com/about (accessed May 14, 2019).4Id.5Id.6Id.7Id.8Id.2

for partial fingertip amputations.9 According to the CPSC announcement of the recall, Britaxhad received “eight incident reports,” including “one partial fingertip amputation, one brokenfinger and severe finger lacerations” for certain BOB jogging strollers sold between May 2011and June 2013.10 As a remedy, consumers were directed to “stop using the recalled strollerimmediately and contact Britax to receive a free repair kit.”11III.2017 BOB Jogging Stroller Recall for Fall HazardsOn February 16, 2017, the CPSC, in conjunction with Health Canada and the Mexicanproduct safety regulator, Profeco, announced the recall of approximately 710,000 BOB joggingstrollers sold in the United States, Canada, and Mexico.12 According to the joint release, Britax“has received 33 reports of car seats unexpectedly disconnecting from the strollers and falling tothe ground, resulting in 26 reports of injuries to children, including scratches, bruises, cuts andbumps to the head” due to defective “mounts that attach the car seat carrier to the strollerframe.”13Senate Commerce Committee Minority staff reviewed the February 15, 2017, correctiveaction plan (CAP) created by the CPSC and sent to Britax for the recall, and found that itcontained an extensive list of requirements, including a “stop sale” of recalled units on February16, 2017, press releases, recall notices sent to consumers, and a free recall kit. The CAP alsorequired “monthly progress reports” on the effectiveness of the recall to the Commission.Britax provided 25 progress reports to CPSC Compliance staff following the CAP.14However, not long after then-Acting Chairman Buerkle took over and the Republican CPSCcommissioners secured the Commission majority, Britax advocated for an end to the monthlyreporting requirements.15 In an April 12, 2019, email to Commission staff, Britax’s Director ofCompliance stated that: “Britax requested on January 4, 2019 along with the December 2018progress report that Commission monitoring of B-Agile recall RP160279 be ended. I amsubmitting this 25th progress report as no response has been received. Britax appreciates yourconsideration on this matter.”16 That same day, Commission staff granted that request.17 Thefinal report submitted to the Commission, dated April 2, 2019, states that of the 675,856 strollers9U.S. Consumer Product Safety Commission, “Strollers Recalled by Britax Due to Partial FingertipAmputation Hazard,” January 30, 2014, available at ed-byBritax.10Id.11Id.12U.S. Consumer Product Safety Commission, “Britax Recalls Strollers Due to Fall Hazard,” February 16,2017, available at trollers.13Id.14Email from Julia Lentini, Director of Compliance, Britax USA to Christopher Nguyen, CPSC ComplianceOfficer, April 2, 2019, attached as Exhibit B.15See id.16Id.17See Email from Christopher Nguyen, CPSC Compliance Officer to Julia Lentini, Director of Compliance,Britax USA, April 2, 2019, attached as Exhibit C.3

sold in the United States with the defective mounting mechanism, 134,321 had been corrected –a recall completion rate of approximately 20 percent.18IV.The 2019 “Information Campaign” for BOB Jogging Stroller WheelDetachments1. The Commission Staff Investigation, Request for Recall, and CommissionAdministrative LawsuitAs part of this investigation, Senate Commerce Committee staff also sought informationfrom the CPSC on incidents involving front wheel detachments from various models of BOBjogging strollers. A report provided by the Commission details at least 244 consumer incidentreports involving BOB stroller front wheel detachments that occurred between December 1,2011 and April 15, 2019.19 The internal CPSC incident report also notes that a number of thefront wheel detachment incidents were reported to Britax as early as 2012, but the majority ofthese reports were not forwarded to the Commission until approximately July 11, 2016.20 Thisdelay raises serious questions about whether Britax complied with its obligation, under Section15 of the Consumer Product Safety Act (CPSA), to report product defects that could result ininjury in a timely manner. To date, Britax has not been fined by the CSPC for a failure toproperly report these incidents.In September 2017, Commission staff created a PowerPoint presentation on the BOBstroller noting that 187 “front wheel detachment incidents” had been reported to date, and that 50children and 47 adults had suffered injuries.21 The injuries to children included “1 concussion, 1blood in ear canal, 4 stiches on head/face, 2 dental injuries, 1 finger fracture; and 1 handlaceration requiring stitches.”22 Commission staff also stated that the defect could cause “seriousand potentially life-threatening head impact injuries, such as concussions, skull fractures, andtraumatic brain injuries from internal brain bleed, bruise, or edema.”23 The final page with“Recommendations for Next Steps” stated: “Maintain and reiterate staff’s position for Firm torecall these products.”24On January 9, 2018, Commission staff held a “Closed Commission Briefing” thatprovided further detail on the hazard posed by the BOB strollers and injuries.25 In thepresentation, staff found that “the front wheel can appear to be properly secured when it is not.”2618CPSC Monthly Progress Report for Corrective Action Plans, Case RP160279, Britax Child Safety,Reporting Dates: 3/1/19 to 3/31/19, attached as Exhibit D.19U.S. Consumer Product Safety Commission, All Reported Incidents on BOB Jogging Strollers, Date ofIncident: Dec. 1, 2011 – Apr. 15, 2019, attached as Exhibit E.20Id.21U.S. Consumer Product Safety Commission, Britax BOB Jogging Strollers, CPSC File No. RP160404,Sept. 2017 (pertinent portions attached as Exhibit F).22Id.23Id.24Id.25U.S. Consumer Product Safety Commission, Britax BOB Jogging Strollers, Closed Commission Briefing,January 9, 2018 (pertinent portions attached as Exhibit G).26Id. at 4.4

The presentation also concluded that the “front dropout fork contains a secondary retentionsystem; however, it does not prevent wheel detachment if the quick release is not properlysecured.”27In order to resolve the case, Britax offered a “New You Tube ‘How To’ videoincorporating CPSC suggestions.”28 The company also stated that it would “Consider CPSCsuggestions for improvements to its written instructions and/or labels,” and that “If CPSC issueda ‘safety alert’ to address the importance of proper quick release use on its strollers, Britax wouldconsider providing a link to this notice on its BOB gear website.”29 In the presentation, however,it appears that CPSC staff took a dim view of this approach. Specifically, staff noted that aninformation campaign regarding use of the front wheel quick release, in lieu of a recall, wouldlikely be ineffective because: “Consumers are unlikely to read the manual or watch the videobecause the quick release does not appear to be complex.”30 In addition, staff noted that: “Areasonable consumer can follow BOB instructions, but use too little force.”31Following this briefing from staff, the Commission’s then-Democratic majority voted onFebruary 16, 2018, to file an administrative complaint against Britax alleging that certain modelsof the BOB jogging stroller “contain defects in their design which present a substantial productsafety hazard.”32 The notice for the administrative lawsuit noted that the defects caused anumber of serious injuries to adults and children, and that Britax “declined to recall or repair thestrollers that pose a substantial risk of injury to children and adults.”33 Accordingly, theCommission’s administrative lawsuit sought a “finding that the strollers present a substantialproduct hazard [and] an order that Britax provide the remedies outlines in the complaint to stopfurther incidents and injuries to the public.”342. The Commission Membership ChangesRelief was in sight for Britax, however, to the detriment of consumers and children. OnJune 1, 2018, Republican Commissioner Dana Baiocco was sworn in as a Commissioner on theCPSC, replacing Democratic Commissioner Marietta Robinson.35 Although the briefings fromCommission Compliance staff and the February 16, 2018, administrative lawsuit filing clearlyindicated a substantial risk of serious injury or even death from the continued use of the BOBjogging strollers, as discussed below, CPSC staff apparently were directed by the Office of theChairman to settle the case without a recall.27Id.Id. at 27.29Id.30Id. at 22.31Id.32U.S. Consumer Product Safety Commission, Release, CPSC Sues Britax Over Hazardous Jogging Strollers;Action Prompted by Ongoing Harm to Children and Adults from Stroller Wheel Detachment, Feb. 18, 2018,available at ners285

Committee staff obtained a signed Consent Agreement between Commission staff andBritax dated August 27, 2018 (“August Agreement”), and marked “In Camera Filing – FOUO.”36In this agreement, it appears that CPSC Office of General Counsel staff largely agreed toBritax’s proposal for an “Information Campaign,” rather than a recall.37 Consumers owningBOB strollers manufactured “between January 1, 2011, through September 30, 2015” whowatched a video about the BOB stroller “quick release mechanism” and continued to haveconcerns about the mechanism could request either a new quick release mechanism that “onlyrotates 90 degrees,” a new “thru-bolt” for the jogger’s front axle, or a “20% discount off theManufacturer’s Suggested Retail Price (“MSRP”) of any new BOB gear stroller.”38 Owners whodid not express concerns about the quick release or had strollers purchased before January 1,2011, would only be able to receive the 20% percent discount rather than a corrective remedy.39The August 27, 2018, agreement also contained a provision stating that “the ConsentAgreement shall be null and void” if the Commission rejects or does not accept the agreement.40Although Commission records are not clear, the Commission did not accept the agreement, andinstead deadlocked on a 2-2 vote on the proposed agreement.3. The New CPSC Majority Caves to BritaxOn October 5, 2018, Peter Feldman was seated as the third Republican Commissioner onthe CPSC.41 Following this, the Commission negotiated another version of the “InformationCampaign” agreement with Britax. On November 9, 2018, the Commission approved the“Revised Proposed Settlement” with Britax on a 3-2 vote with the three RepublicanCommissioners approving the agreement (“November Agreement”).42The November Agreement expanded the period where an actual remedy was provided(either the modified quick release or the modified thru-bolt) to those purchased “betweenJanuary 1, 2009, and September 30, 2015,” which was a slight improvement.43 On the otherhand, the November Agreement contained new limitations on how long Britax would provide aremedy to impacted consumers and run the “Information Campaign.”44The August Agreement provided that Britax “shall maintain a dedicated website portaland customer service number to facilitate the distribution of the parts, accessories, and otherincentives” detailed in the agreement.45 The November Agreement, on the other hand,36In the Matter of Britax Child Safety, Inc., CPSC Docket No. 18-1, Consent Agreement, In Camera (signedAug. 27, 2018), attached as Exhibit H (hereinafter “August Agreement”).37Id., at 3.38Id., at 5-7.39Id.40Id. at 8, para. peter-a-feldman42Vote Regarding Revised Proposed Settlement of In the Matter of Britax Child Safety, Inc., CPSC DocketNo. 18-1, available at evisedProposedSettlement-BritaxCPSCDocketNo%2018-1 %20110918.pdf?830zLEHvUC4PwD UApvZKiadatBNRyR. (hereinafter “NovemberAgreement).43Id.44Id.45August Agreement at 7.6

specifically limits this website to “the first 12 months of the Information Campaign.”46 Afterthat time, Britax is merely required to “maintain a version of the Instructional Video containinginformation demonstrating and describing how to safely, correctly, and consistently operate theQuick Release on the Strollers, on the BOBGear.com website (“Revised Instructional Video”)for an additional 12-month period at a location that is easily accessible to consumers.”47 Bydoing this, the Commission Majority effectively let Britax end the only true consumer remedyafter 12 months, and then default to an instructional video that staff had already rejected asineffective after that.The November Agreement also allowed Britax to evade Commission recall reportingrequirements. The August Agreement provided that Britax “shall provide to the Commissionstaff information on a quarterly basis identifying the number of consumers who have viewed thecampaign and requested any of the incentives” provided by the agreement.48 Parallel provisionsin the November Agreement, however, changed this to: “For the first 12 months of theInformation Campaign, Respondent shall provide to the Commission staff information on aquarterly basis identifying the number of consumers who have viewed the InformationCampaign” or requested any of the incentives.49As noted earlier, the consumer response rate for the 2017 Britax fall hazard recall was adismal 20 percent after more than 2 years. With this “Information Campaign,” it is likely thatthe Commission will never know what the effective consumer take rate is because the reportingrequirement will be terminated before meaningful data is obtained and analyzed.THE FISHER-PRICE ROCK ‘N PLAY SLEEPERI.The Commission’s Failure to Inform the Public of Deaths Associated with theRock ‘n Play SleeperOn April 11, 2019, Consumer Reports released a study associating at least 32 infantdeaths with use of Fisher-Price’s inclined infant sleeper product.50 Although these reports hadapparently been piling up at the CPSC for several years, it appears that the Commission refusedto take action to alert the public until the information was released by Consumer Reports. 5146November Agreement at 7.Id. at 8.48August Agreement, at 8.49November Agreement, at 8.50Rachel Rabkin Peachman, Fisher-Price Rock ‘n’ Play Sleeper Should be Recalled, Consumer Reports Says,CONSUMER REPORTS, May 8, 2018, available at reports-says/.51See id. The Consumer Reports investigation notes that while some Rock ‘n Play incident reports had beenreceived by the CPSC as early as 2011, a pattern of possible defect that could result in serious injury or deathbecame more apparent in 2017.477

II.The Commission Deliberately Mischaracterizes the Recall Remedy for the Rock‘n Play as a “Refund” for All ConsumersOn April 12, 2019, the Commission announced that “Fisher-Price Recalls Rock ‘n PlaySleepers Due to Reports of Deaths.”52 The notice states that approximately “4.7 million units”were being recalled, and that the consumer remedy is a “refund.” Senate Commerce CommitteeMinority staff investigated this remedy claim, however, and found that it is misleading andmaterially inaccurate.Selection of the recall link provided in the CPSC recall announcement takes a consumerto the main Fisher-Price recall page.53 From that page, to find the relevant information, aconsumer must: navigate to another page listing all Fisher-Price recalls,54 then navigate to a thirdpage with a general announcement about the Rock ‘n Play recall,55 and finally, click on a fourthlink that displays the actual terms of the U.S. Rock ‘n Play recall.56 This page indicates that aconsumer’s “recall resolution” is based on when they bought the product. For consumers whopurchased a Rock ‘n Play sleeper on or after October 12, 2018, a full cash refund is offered if anoriginal receipt is provided.57 For Rock ‘n Play sleepers purchased before October 12, 2018,consumers “will receive a voucher for a Fisher-Price product to be selected from a list ofproducts to be provided by Fisher-Price.”58For U.S. consumers, therefore, whether they receive a refund to replace the Rock ‘n’ Playor a product voucher is based purely on when they purchased the product. Thankfully, othercountries have taken a different, and far more consumer-protective, approach. The Australianproduct safety regulator, for example, has required a full refund for all Rock ‘n Play sleeperscovered by the recall notice.59 The New Zealand product safety regulator similarly provided afull refund.60 Other countries have gone even further. Canada, for example, has prohibited themarketing of inclined infant sleepers, such as the Rock ‘n Play, since 2011.61 The CPSC recentlyreleased a staff proposal to promulgate a standard for infant inclined sleep products that would,effectively, prohibit products like the Rock ‘n Play.62 But this would still leave many of theseproducts in U.S. households, and leave consumers without a true remedy.63RESIDENTIAL ELEVATOR asp?recall id 5246656https://service.mattel.com/us/recall/BJD57 ng.php62U.S. Consumer Product Safety Commission, Draft Supplemental Notice of Proposed Rulemaking for InfantSleep Products, Oct. 16, 2019, available at ofProposedRulemakingforInfantSleepProducts 10 16 2019.pdf.63See All Inclined Sleepers Put Infants at Risk and Must be Recalled, CONSUMER REPORTS, Oct. 23, 2019,available at https://advocacy.consumerreports.org/press -infantsat-serious-risk-and-must-be-recalled/.538

For many years, safety advocates have called attention to the known hazard posed bymany residential elevators.64 A large number of these elevators have a gap between the gate orouter door and the hoistway door that is part of the elevator car.65 Unfortunately, a number ofsmall children have become trapped in this space, and then have either fallen down the elevatorshaft or been crushed when the elevator car responds to a request for service.66In recent years, these elevators have become increasingly prevalent in larger homesincluding rental properties found in resort communities, thereby increasing the risk to familieswho may not be aware of the gap and the serious danger it may pose. According to informationprovided by the Commission, at least two children have suffered serious injuries in recent yearsby elevators in rental properties.67 In addition, a two and-a-half year-old child was killed inArkansas in February 2017 when he was crushed under an elevator car after being trapped.68The solution to preventing these tragic deaths and injuries is relatively simple, andinvolves closing the gap between the outer elevator door and the hoistway door.69 Following therecent reports of deaths and injuries, it appears that Commission staff undertook several effortsto require manufacturers to provide a remedy to consumers that would close and correct the gapbetween the outer door and the hoistway door.According to documents provided to the Committee, Commission staff organized a “JointCPSC-Residential Elevator Action Phone Conference” on May 30, 2019.70 This call wasintended to bring CPSC staff together with representatives of the residential elevator industry toreach consensus on a remedy for potentially dangerous residential elevators. The agenda for themeeting notes that: “The Commission is determined to find a solution to this safety hazard.”The Agenda also stated that: “we have a strong desire to see a public notice maximized &identify a remedy that are [sic] at minimal or no cost to consumers.”7164See Todd C. Frankel, Home Elevators Have Killed and Injured Kids for Decades. Safety Regulators Won’tOrder a Simple Fix, WASH. POST, July 18, 2019, available -830a21b9b36b64ad story.html.65See James Filippone, P.E., and John Koshak, Solutions Needed to Ensure Children’s Safety, ELEVATORWORLD, March 2014, at 91 (“Two physical elements allow child entrapment to occur: sill depth behind the closedswinging hoistway door, and door-to-door clearance between the closed swinging hoistway door and the closed cardoor and gate.”) (hereinafter “Filippone and Koshak”).66See id.67See Letter from CPSC Acting Chairman Ann Marie Buerkle to Senate Commerce Committee RankingMember Maria Cantwell, July 31, 2019, at 2 (noting residential elevator deaths and injuries reported t

16, 2017, press releases, recall notices sent to consumers, and a free recall kit. The CAP also required “monthly progress reports” on the effectiveness of the recall to the Commission. Britax provided 25 progr