Expert Article by Christie Grymes Thompson. Christie will be speaking at ACI’s Consumer Products Regulation & Litigation Conference on June 26th to 27th,2013.
The tide continues to rise for Consumer Product Safety Commission (“CPSC”) civil penalties as the Commission announces a $987,000 penalty against Williams-Sonoma, Inc. and the company’s agreement to implement an extensive compliance program. On Monday, the CPSC announced that Williams-Sonoma has agreed to pay the civil penalty to resolve allegations that the company knowingly failed to report a defect in its Pottery Barn wooden hammocks. Williams-Sonoma also agreed to implement a comprehensive compliance program that arguably encompasses far more than the company’s alleged failure to report in a timely manner.
According to the settlement agreement, the wood in the hammock stands allegedly deteriorated over time, and Williams-Sonoma had received notice of a consumer injury resulting from the failure of the hammock as early as November 2004 and had received its eighth incident report by the end of October 2006. The company, however, did not report to the Commission until September 2008, when it knew of 45 incidents. In October 2008, Williams-Sonoma and the CPSC announced the recall of 30,000 hammock stands. Because the alleged failure to report occurred prior to September 2008, it was subject to the CPSC’s previous civil penalty cap of $1.825 million instead of the current cap of $15 million.
In addition to the civil penalty, Williams-Sonoma agreed: (1) to implement and maintain a comprehensive compliance program designed to ensure compliance with all safety statutes and regulations enforced by the Commission (not just the Consumer Product Safety Act, which was the subject of the penalty); and (2) to maintain and enforce a system of internal controls and procedures designed to ensure timely and accurate reporting to the CPSC. The comprehensive compliance program is the same as that imposed in the settlement agreement entered with Kolcraft Enterprises, Inc. earlier this year. In a statement issued in connection with the Williams-Sonoma settlement, Commissioner Nord expressed concern that, for a second time, the CPSC had insisted on a comprehensive compliance program absent evidence of widespread noncompliance and that “the compliance program language in [the] settlement is another step toward just such a de facto rule.” She also noted that using recalls to justify imposing mandates unrelated to the problem (in this case, timely reporting) discourages participation in the voluntary recall process.
Companies with products subject to the CPSC’s jurisdiction should note that mandated compliance programs appear to be the new normal for civil penalty agreements, regardless of a company’s history with the Commission as civil penalty demands continue to increase.