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Stephen Griffin

Abstract

By the late 1960's, statistics revealed that a total of twenty million people were injured or killed annually in consumer product-related accidents. Congress reacted by establishing a committee to investigate the adequacy of consumer protection against unreasonable risks caused by hazardous household products. This committee concluded that producers of hazardous products are in the best position to safeguard consumers against injury, but found that many producers lacked motivation to engage in meaningful self-regulation. Consequently, they recommended the creation of a federal regulatory agency.

Congress responded by enacting the Consumer Product Safety Act (CPSA), and by establishing the Consumer Product Safety Commission (Commission). Under provisions of the CPSA, the Commission requires importers, manufacturers, and distributors of consumer products to report immediately to the Commission instances in which a product fails to comply with a safety rule or has a defect that could create a substantial product hazard. Ideally, these reports allow the Commission to take remedial actions to minimize the dangers of the hazardous product. Through the early alert, the Commission can begin to investigate the hazards before they reach epidemic proportions. The Commission intended to provide "... a fence around the top of the cliff rather than providing an ambulance in the valley below."

However, the system of voluntary hazard reporting has not been successful due to the lack of compliance by industry. The Commission surmises that noncompliance may be more the result of ignorance than of intent Nonetheless, the Commission has emphasized that failure to comply with reporting requirements could adversely affect the delinquent companies. In addition to civil and criminal penalties the Commission can seek pursuant to the CPSA, recent court decisions have recognized a private cause of action. A private cause of action puts authority in the Commission's warning to delinquent companies. This analysis of Swenson v. Emerson Electric Co., will describe the parameters of that private cause of action.

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