PPB July 2016

company becomes the focus of a

CPSC investigation, you risk

being perceived as a bad actor.

This does not mean a single

communication with the CPSC

puts you in danger. If your com-

pany’s products and your reac-

tions—or failure to react appro-

priately—have created sufficient

CPSC product safety violations,

this is when you may run into

the bad actor perception. Maybe

your product developed a prob-

lem and you failed to fix it, or

you failed to report timely when

required under Section 15(b) to

do so—these are the kinds of

matters that would motivate the

CPSC to investigate.

Unfortunately, this can cause the

CPSC to take a “we-versus-

they” approach, featuring your

company as the bad guy.

What Do You Do Next?

How should your company

proceed if you find yourself in

this difficult situation? Your

company will now need to

demonstrate that it really is a

good guy. It is important to

remember that you still can and

should shape how your company

is perceived by getting into a

putting-on-our-best-face mode.

This includes:

• figuring out what the CPSC

representative wants and pro-

viding it to the furthest extent

possible;

• gaining control over internal

and external communications,

as inconsistency can be lethal;

• being respectful in all commu-

nications—maintain a friendly

but professional demeanor,

and, most importantly, don’t

argue—support your position

with facts and logic;

• responding timely to govern-

ment requests;

• being honest—whatever you

say must be true. Do not con-

ceal the truth, and never

knowingly make an incorrect

statement; and

• being truthful and thorough in

all communications. But never

overlook the opportunity to

say nothing.

How To Stay Out

Of The Limelight

How can companies avoid

appearing on the CPSC’s radar

screen in the first place? The best

way is to preemptively develop

and implement an effective

CPSC product safety compliance

program. It is important to

understand that the protection

your compliance program will

afford you is only as strong as

your commitment to making it

truly effective and functional.

Your CPSC compliance pro-

gram should establish compli-

ance policies in writing. This will

enable you to document your

company’s efforts to comply and

provide a blueprint for employees

to follow. Development and

implementation of the program

will require the support of the

management team, so that

appropriate internal controls and

procedures can be established

and enforced. Internal company

communications should be

examined and structured to

enable your company’s manage-

ment to quickly be informed of

product safety deficiencies and

determine how to respond. If

reporting to the CPSC is

required, the compliance pro-

gram should facilitate rapid

internal action so that CPSC

reporting can be timely and

thorough. Your compliance pro-

gram should provide a mecha-

nism to make use of feedback

from multiple internal and exter-

nal sources regarding the safety

of your products.

If your company is importing

or selling children’s products, the

compliance program should

encompass your company’s prod-

uct testing and certification pro-

gram so that compliance with all

applicable children’s product

safety standards is ensured.

The existence of your prod-

uct safety compliance program

will help protect you by mini-

mizing product safety prob-

lems—thereby keeping your

company out of sight of the

CPSC—and, in the event of a

problem, by demonstrating to the

CPSC that you have been proac-

tive in attempting to ensure

product safety.

David P. Callet

is the principal at

CalletLaw in Washington, D.C.,

and provides comprehensive

client representation on all

aspects of consumer product

safety compliance. Reach him at

dcallet@calletlaw.com

TAKE YOUR KNOWLEDGE

TO THE NEXT LEVEL

JOIN YOUR INDUSTRY COLLEAGUES for the annual PPAI

Product Responsibility Summit, September 18-20, 2016, in

National Harbor, Maryland. The Summit is one and half days

of education focused on the most pressing product safety

issues, as well as the business implications, challenges and

opportunities associated with compliance. Facilitated by

industry thought leaders, representatives from product safety

labs and product certification groups, this eye-opening event

will explore the latest developments, as well as best practices.

www.ppai.org/prs

66 •

PPB

• JULY 2016

THINK

PRODUCT

RESPONSIBILITY