Reporting a Dangerous Product to the CPSC

Why this matters

Field techs see product failures before anybody else does. The same model scorching at the same terminal on three jobs in six weeks is information the manufacturer may not have yet, and the federal agency certainly does not. For most shops, telling the Consumer Product Safety Commission (CPSC) is a voluntary act of good citizenship. For a shop that sells products to customers, it can be something stronger: a legal duty to report, with a short clock, that the shop may not know it carries. This card separates the two, says what triggers the duty, and marks the point where the next call is to a lawyer rather than to the agency's web form. This is not legal advice; the statute and the CPSC's regulation are short enough that your attorney can read the relevant parts with you in an hour.

Two channels, two different things

The public report. Anyone, including a consumer, a technician, a shop, a fire department or a doctor, may report a harm or a risk of harm from a consumer product through SaferProducts.gov, the public database the Consumer Product Safety Improvement Act of 2008 directed the CPSC to build. The CPSC can post the report publicly after giving the manufacturer a chance to comment; the reporter's contact details are not published. There is no deadline and no penalty for not filing. It is the right channel for a shop that installed a product it did not sell, or a shop that wants a pattern on the record.

The mandatory report under Section 15(b). Section 15(b) of the Consumer Product Safety Act (15 U.S.C. 2064(b)) requires every manufacturer, distributor and retailer of a consumer product to inform the Commission immediately when it obtains information that reasonably supports the conclusion that the product:

1. fails to comply with an applicable consumer product safety rule, or with a voluntary standard the Commission has relied on;
2. fails to comply with any other rule, regulation, standard or ban under the Act or another act the CPSC enforces;
3. contains a defect which could create a substantial product hazard; or
4. creates an unreasonable risk of serious injury or death.

The standard is "reasonably supports the conclusion", not proof. A firm does not need to have decided the product is defective to be required to report; it needs information from which a reasonable person could draw that conclusion.

Whether the duty reaches your shop

The duty attaches to the role, not to the size of the business, and the roles are defined in the Act.

• Manufacturer includes the importer. A shop that imports equipment directly from overseas to resell may be the importer of record, and therefore the manufacturer for this purpose.
• Distributor is a person to whom a consumer product is delivered or sold for distribution in commerce, other than a retailer.
• Retailer is a person to whom a consumer product is delivered or sold for sale or distribution to a consumer.

A shop that buys a product from a distributor and sells it to a homeowner, on an invoice line, as part of an installation, may be acting as a retailer of that product. Whether it is depends on facts your attorney will ask about: who bought the product, whose name is on the sale, whether the customer could have bought it separately. A shop that installs a product the customer bought elsewhere may not be in the chain of distribution for it at all, and in that case the public report is its channel.

What counts as a consumer product is also defined. It covers products customarily sold for use in or around a household, which reaches most of what a residential shop installs: appliances, heaters, water heaters, alarms, residential electrical devices, pool and spa equipment, garage door openers. It excludes products another agency regulates, among them motor vehicles (NHTSA), pesticides (EPA), and food, drugs and medical devices (FDA). An item sold only for commercial or industrial use may fall outside it.

The clock

"Immediately" is interpreted in the CPSC's regulation at 16 CFR Part 1115. The regulation reads it as within 24 hours of the firm obtaining information that reportable information exists. A firm that is genuinely unsure whether its information is reportable may investigate first, but the regulation expects that investigation to be prompt and to take no more than 10 days unless the firm can show a longer period is reasonable, and it treats the firm as knowing what a reasonably prudent firm would have learned in that time. The regulation also makes clear that a report is not an admission that the product is defective, and the CPSC's own guidance is that a firm in doubt should report.

Failing to report when required can bring civil penalties under Section 20 of the Act, up to caps the statute sets and the CPSC adjusts for inflation, and criminal penalties for knowing and willful violations under Section 21. Several of the largest civil penalties in the agency's history have been for late reporting, not for the defect.

Section 37 of the Act adds a separate duty to report certain lawsuit outcomes, and it binds manufacturers only. A shop that is not the manufacturer or importer does not carry it.

Worked example: three melted terminals

An electrical shop sells and installs a line of panel-mounted whole-house surge protective devices. It buys them from a distributor and lists each one as a line on the customer's invoice.

• Week 1. Service call: one unit has a browned, softened terminal on the line side. The tech de-energizes the panel at the main, proves it dead with a tester checked on a known live source before and after, replaces the device, assumes a loose connection, and notes it.
• Week 4. A second unit, same model, same terminal, same discoloration, on a different job installed by a different tech.
• Week 6. A third, and this one has scorched the inside of the panel cover and tripped the main. Nobody was hurt.

Walk the reasoning at week 6. One failure is not a pattern, and a loose termination is the commonest cause of a browned terminal. Two failures by different installers on the same terminal makes workmanship a weaker explanation. A third, with fire damage inside a panel in an occupied home, is information that could reasonably support the conclusion that the product creates an unreasonable risk of serious injury. The shop is plausibly a retailer of it. The shop's records are about to matter more than its opinion.

What the shop does, in order:

1. Preserves all three failed units with their terminations intact, tagged and bagged, and does not return them to the distributor for credit (see related: How to Keep a Failed Part as Evidence).
2. Pulls the installed-part records for every unit of that model sold: 38 units in 14 months, and the torque value recorded at each install. All three failures were recorded at the manufacturer's stated torque. That eliminates the most likely innocent explanation and strengthens the other one.
3. Calls its attorney the same day, walking in with the incident list, dates, photographs, the 38-unit sales count, the torque records and the location of the preserved units. The attorney's questions are whether the shop is a retailer for this product and whether the information is reportable.
4. Tells the manufacturer in writing, with the same facts. That is not a substitute for the shop's own duty if it has one, and whether telling the manufacturer alone discharges a retailer's obligation is a question for the attorney, who will read the regulation's provisions on it rather than guess.
5. Holds remaining stock of the model in quarantine while the question is open, and installs a different model in the meantime.

On the attorney's advice the shop files a Section 15(b) report two days after the third failure, inside the window the regulation allows for an investigation it was actively conducting. The report carries the model, date codes on all three units, the incident descriptions, the count sold, and a contact.

What changes the answer. If the week-6 failure had shown a conductor stripped too long with strands outside the lug, and the torque record for that job had been blank, the information points toward the shop's own workmanship, and the reasonable conclusion may be different. The shop fixes its install practice and may still file a public report. But two earlier failures recorded at stated torque are still in the file, so one sloppy termination does not by itself clear the product, and the decision belongs to the facts of every unit, not the most recent one. An owner tempted to read every failure as installer error, because that reading avoids a filing, is reading the facts toward the convenient answer. That judgment goes to counsel, not to the shop.

What a good report contains

Whichever channel you use, the useful report has the same bones:

• product type, brand, model exactly as labeled, and the date or serial codes of each unit involved;
• what happened to each unit, in plain physical terms (browned terminal, melted housing, burst at the crimp), with dates;
• any injury or property damage, and to whom, without names unless the channel requires them;
• how many units the shop sold or installed, and over what period;
• where the failed units are and that they are being preserved;
• the shop's contact.

Leave out theories about cause. "Three units of the same model failed at the same terminal" is a fact the CPSC can use. "The terminal is undersized" is a conclusion you may not be able to defend.

Where the shop stops and counsel starts

The fork is specific. A shop can file a public report on its own, any time, about any product. A shop should not decide by itself whether it has a Section 15(b) duty when all three of these are true: it sold the product to the customer, it has information about more than one failure or about any injury, and the failure mode could hurt someone. At that point the call is to an attorney who handles product-safety or product-liability matters, the same day, with the records above in hand. Product liability claims that may follow run under state law, which varies widely, and that is a second reason the attorney should be the one reading the facts.

References

• Consumer Product Safety Act, Section 15(b), 15 U.S.C. 2064(b) (reporting duty of manufacturers, distributors and retailers); Sections 20 and 21 (penalties); Section 37 (manufacturer lawsuit reporting).
• 16 CFR Part 1115, Substantial Product Hazard Reports.
• SaferProducts.gov, the CPSC public incident database established under the Consumer Product Safety Improvement Act of 2008.
• See related: How to Keep a Failed Part as Evidence
• See related: The Stock Recall Check SOP