PORTLAND, Ore. (InvestigateTV) - When a company learns that a product it sells could be defective and dangerous, it has 24 hours to let the federal government’s Consumer Product Safety Commission know about it.
But after that, the urgency wanes. There is no rush to warn the public or recall the product.
The companies keep the products’ full dangers tucked into Substantial Hazard Reports – legally required notifications - then oftentimes forbid the CPSC from making the details public.
They employ stall tactics to keep the product’s danger under wraps and on store shelves. The commission spends months – sometimes years - cajoling them to act.
Today, the CPSC is aware of hundreds of potentially dangerous and defective everyday products through those mandatory hazard reports – but consumers are unaware.
“It should be terrifying to all of us,” CPSC Commissioner Richard Trumka Jr. told InvestigateTV. “This agency is aware of I don’t know how many hundreds of products that the public should know about right now that we can’t say anything about.”
The delays have had deadly consequences.
For example, if Fisher-Price had recalled its Rock N’ Play when it submitted its Substantial Hazard Report to the CPSC in February 2018 and said that more than a dozen babies had died in the incline sleeper, Erika Richter wouldn’t have received it as a baby gift in the spring that year and her daughter might still be alive.
“This is just my story of my government failing my daughter,” Richter said.
When a company learns that a product it sells could be defective and dangerous, it is required by the Consumer Product Safety Act to notify the CPSC within 24 hours.
That “Substantial Product Hazard” report includes, among other things, details of potentially dangerous incidents, including injuries and deaths associated with the product.
But the provision of the consumer protection law known as section 15(b) is fraught with ambiguity:
- It doesn’t define “substantial product hazard.”
- It doesn’t say how many injuries or deaths are enough to trigger the notification requirement.
- It doesn’t require an immediate public alert or warning.
- It doesn’t set a timeline for when the CPSC can alert the public to problematic products.
- And it keeps those reports confidential.
“It’s the most frustrating part of the job,” Trumka said. “We would love to be able to tell anytime we know about something like that. We’d love to be able to tell the public because you need to give people the opportunity to protect themselves. That should be our central function, telling the public when there’s a risk out there so that they can avoid it.”
And another provision of the federal consumer protection law all but guarantees the CPSC’s silence on what it learns from those hazard reports: Section 6(b), which Trumka calls a “gag rule.”
That means even once a company files a report on a potential hazardous issue with its product, the CPSC is prohibited from sharing that information without manufacturer consent.
“This provision of law is . . . potentially responsible for killing people, and that is a stark, stunning truth about our law,” said Sen. Richard Blumenthal. The Connecticut Democrat is sponsoring a bill to repeal Section 6(b).
Some defective products can remain on the market for months, if not years
Consumer advocates say those substantial hazard reports should be made public – especially if a product has been recalled.
“It’s really important if we want the system not only to work, but to work better and to prevent this from happening in the future,” said Rachel Weintraub, legislative director and general counsel for the Consumer Federation of America. “We do need to know who knew what, when and what worked in the system and what didn’t work so we can work to fix it.”
InvestigateTV requested through Freedom of Information Act substantial product hazard reports from 51 previously recalled products.
The limited documents received illustrate in some cases the lag between a company’s notification to the CPSC and the recall.
IKEA Malm dressers remained on the market for nearly two years after the company submitted its substantial hazard report, records show.
The dresser has been tied to at least four deaths of children at the time of the recall in June 2016.
A defective onion chopper that caused at least 135 laceration injuries remained for sale for more than a year after the company learned of its problems in August 2019 and notified the CPSC, federal records show.
The chopper was recalled in October 2020 – more than a year later.
And a playground climber installed in at least 200 McDonald’s restaurants remained in place for more than five months after the manufacturer reported to the CPSC that dozens of children were injured when they fell.
“The longer they can draw out the period of time before we tell the public, they can keep selling the product, they can manage the reputational hit, they can prepare for the fallout,” Trumka said.
Section 6(b), which Trumka calls the “gag rule,” of the federal consumer law gives the power to the manufacturers to decide what the CPSC can publicly release or say about a product. That means that in most cases the CPSC can’t issue alerts, warnings or recalls without the consent of the manufacturers and can’t provide records under FOIA without that company review.
To date, InvestigateTV has received only 18 of the 51 substantial hazard reports requested. Those reports were handed over after the companies had the opportunity to review and redact information that they didn’t want made public.
Thirteen of the 18 manufacturers invoked section 6(b) in response to InvestigateTV’s request, resulting in reports that were so heavily redacted they were rendered nearly useless.
Those included products such as IKEA’s dressers, climbers found in McDonald’s restaurants, a go-cart, a stroller, a baby food steamer and others.
The companies instructed the CPSC to strip from the documents, among other things, the dates they first were notified of an issue with their products and details of injuries or deaths.
They even withheld mundane information such as the products’ retail costs, the stores where they were sold and the other countries that also had them on the market.
“I’m just aghast at this kind of censorship,” Blumenthal said after reviewing some of the documents. “I don’t know how in a free society we can call this kind of redaction tolerable.”
Only two companies allowed the release of their reports without any redactions – the onion chopper maker and a ski boot manufacturer.
Between the time the 51 product makers contacted the federal government, and a recall was agreed upon, consumers continued to unwittingly buy and use products that manufacturers and the CPSC knew could harm them.
“Right now, the law is overly vague on when and what and how much needs to be told to the Consumer Product Safety Agency. And that section of law 15 B also needs to be rewritten to make it more specific as to how quickly and I would say 24 hours,” Blumenthal said. “Time is not on our side when we’re talking about dangerous or defective products.”
The CPSC is keeping secret details surrounding some of the most deadly, previously recalled products
This summer, the CPSC and Fisher-Price issued a warning to not put babies to sleep in the company’s Infant-to-Toddler Rockers after 13 infants died in them.
The CPSC had to wait three months for permission from Fisher-Price to issue the safety warning, according to Trumka.
Trumka said there’s much more information about that rocker that the public doesn’t know but should.
“There are things that I know about that, about that product and what happened with it that I’m not allowed to say because of the of the gag rule,” Trumka said, referring to Section 6(b).
But the secrecy sometimes cuts both ways.
The CPSC itself denied InvestigateTV’s request for 25 substantial hazard reports claiming that they are investigatory records.
Reports that the agency is keeping from public include:
· The Rock N’ Play, the Fisher-Price inclined sleeper.
· A nursing pillow linked to eight infant deaths when it was recalled in September 2021.
· Two different brands of adult portable bed rails tied to the entrapment then asphyxiation deaths of three senior citizens.
· A handheld clothing steamer that burned more than more than 100 people.
· Virtual reality headsets that resulted in skin irritations to more than 5,000 users.
Consumer advocates say that CPSC likely withheld those reports as it investigates if those companies filed timely notifications and didn’t delay as injuries and incidents mounted.
Fisher-Price, for example, first learned of a death associated with the Rock N’ Play in 2011, federal court records show. By the winter of 2018, the death toll had grown to 14, according to what it reported to the CPSC.
“We would hope that any company armed with this knowledge about their product would come to the table and try to as quickly as possible, and as effectively as possible, get these products off the market so that more babies would not be at risk,” Weintraub said.
Fisher-Price previously has been fined at least three times by the CPSC for failing to make timely notifications about a dangerous product.
Erika Richter said the secrecy surrounding the Rock N’ Play led to that fateful morning in August 2018.
A new mother’s joy turns to grief in days
When Fisher-Price notified the CPSC about babies who died in its Rock N’ Play in February 2018, Richter was beginning her second trimester of pregnancy.
While friends and families showered her with gifts – including a Rock N’ Play, staff members at the CPSC were fretting over the deaths associated with the sleeper.
One CPSC staff member emailed another colleague after reading the hazard report citing 15 deaths, and wrote, “Holy cow!”
But Erika and millions of other parents were left in the dark about the dangers for 14 months.
Fisher-Price marketed the Rock N’ Play as a sleeper. But its 30-degree incline defied American Academy of Pediatrics safe sleep guidelines that long established babies should sleep on a flat surface.
But the product flew off the shelves nonetheless, with Fisher-Price selling nearly 5 million of them.
Fisher-Price and its parent company, Mattel, have repeatedly ignored InvestigateTV’s request for comment.
“So many people equate Fisher-Price with trust,” Richter said. “This is a legacy brand.”
Emma was born perfectly healthy, her mother said.
“She’s very long. I think that came from her father, for sure. She had really long fingers too. And I thought, ‘Oh, she’s going to play guitar. She’s going to play guitar like her dad,’” Richter said.
On Aug. 15, 2018, Emma’s father, John Hauser, put Emma on her back in the Rock N’ Play to sleep after feeding.
When he checked on her later that morning, her head was hanging forward and she was not breathing, according to a lawsuit the family has filed against Fisher-Price.
“It is every mother’s worst nightmare when you see her baby blue, and unresponsive,” Richter said. “I couldn’t do anything except drop to my knees and pray. That’s all I did. While John was attempting CPR, that’s all I could do. And I prayed for it not to be true. I felt so helpless in that moment that I was just on the floor, praying for a miracle until the paramedics came, and she was already gone.”
John and Erika’s lives fell apart. They left their Washington, D.C.-area apartment that day and never returned. They moved to Portland, Oregon for what they hoped for a fresh start.
Richter cherishes the few belongings of Emma that remain: the standard-issued hospital blanket given when she was born and a milk-stained outfit that she wore home after delivery.
“I refuse to wash (them) because, I can’t. Because this is, this is what I have left,” Richter said, trying to choke back her grief. The coroner ruled the cause of Emma’s death was undetermined. Erika didn’t believe it. She prayed for an answer.
On April 5, 2019, she said she learned that her prayers were heard.
“I was making dinner and I had the news on in the background. . . I heard something on the TV about Fisher-Price, and their Rock N’ Play sleeper,” she said. “I walked into the kitchen. And right there on the TV was a picture of the Rock N’ Play, the same thing that Emma died in. And I mean, I was holding a glass of wine and I just it just shattered everywhere.”
That day, the CPSC and Fisher-Price announced the recall, saying “over 30 infant fatalities have occurred.”
“The answer that I was regretfully demanding from God was delivered,” Richter said. She has since filed a lawsuit claiming that the design of the Rock N’ Play was flawed and caused her daughter to asphyxiate.
Fisher-Price, wrote in its response to the lawsuit, denies “every allegation asserted.”
Trumka was not yet a CPSC commissioner or involved with the recall of the Rock N’ Play. But he and his wife owned one and threw it in the trash as soon as he learned about the recall.
“We put our infant son in that product. We didn’t think a company like Fisher-Price would sell a product if they knew . . . children were dying in the product,” he said. “It takes a lot to trust products after that.”
Today, the deaths of at least 97 babies have been tied to the Rock N’ Play even as company executives have continued to stand by the product as safe when used according to package directions.
But Congress in May banned the sale of the Rock N’ Play and other inclined sleeping products with the passage of the Safe Sleep for Babies Act.
“This is the legacy of so many lost children at the hands of a company who knew that they were dying. They knew that their product was killing infants every year. Every year they would get reports,” Richter said. “Do they have an acceptable quota of deaths? Is there a magic number?”
Copyright 2022 Gray Media Group, Inc. All rights reserved.