Date: Apr 11, 2018
The U.S. Consumer Product Safety Commission’s first lawsuit of 2018 is against a maker of popular jogging strollers, Britax Child Safety Inc. The incidents and alleged defect that prompted the dispute relate to front wheel detachments that occurred while parents were using the strollers, leading to injuries to adults and children. The problems arise from a feature used in some jogging strollers: the ability to detach and reattach the front wheel quickly.
Consumer misuse, according to the CPSC, is possible with this feature since consumers can attach the wheels without fully engaging them. The agency’s working theory is that injury associated with foreseeable consumer misuse is itself a defect. The company strongly disagrees.
To resolve this case, the administrative law judge will need to assess whether consumer misuse of a product that gives rise to a risk of injury — despite instructions and warnings that would prevent injury, if followed — necessarily constitutes a defect that creates a substantial product hazard under the Consumer Product Safety Act. According to the 2008 Consumer Product Safety Improvement Act, the CPSC must address safety concerns for durable infant products like strollers, either by writing its own product safety rules or by adopting voluntary standards as its own, potentially with amendments. The ALJ will also have to consider the fact that the strollers comply with voluntary standards that the CPSC made mandatory in 2014 and again in 2016.
Britax and its 2011 merger partner, B.O.B. Trailers Inc., have been importing and distributing B.O.B. jogging strollers since 1997. At issue in this dispute are about 493,000 jogging strollers imported and distributed between December 2011 and September 2015. They include a range of single- and double-seated models.
According to the agency’s press release announcing the administrative action, CPSC has received about 200 complaints about wheels coming off the strollers since 2012, with reports of 50 injuries to children and 40 to adults, including head and teeth injuries, bruises, torn ligaments and cuts. When the CPSC asked the company to conduct a recall, the company refused, arguing that misuse rather than any defect in the product was the cause. By a three-to-one vote, a majority of CPSC commissioners approved filing an administrative complaint seeking to compel Britax to recall the strollers, inform the public of the defect and offer a remedy in the form of repair, replacement or refund.
The CPSC complaint appears grounded in a theory that because the three-wheeled stroller models can operate when the front wheel is not properly secured — potentially leading to front-wheel detachments, causing sudden stopping and tipovers — the wheel’s design is defective. The CPSC’s lawyers further allege that another wheel-attachment method used in some Britax strollers (the “thru-axle” attachment) has resulted in fewer incident and injury reports from consumers.
The complaint suggests since a newer design is technically feasible, the “quick-release” feature is unnecessarily hazardous. It further suggests that the difference between safe and unsafe reinstallation is very small, pointing to Britax instructions that inform parents that “less than a half turn [of the tension-adjusting nut on the front-wheel assembly] can mean the difference between safe and unsafe clamping force.”
For its part, the company argues that improper use, rather than any design flaw, is the cause of the problem, saying: “the [detachments] involve an improperly secured quick release mechanism … or jogging with the swivel wheel unlocked.” Further, it contends that the risk of injury “is caused by the same aspect of the product that creates its utility” — the ability to easily remove and reinstall the wheel.
As evidence of prior CPSC knowledge and acceptance of the design, the company points to the fact that the CPSC approved stroller standards that permit the feature not once, but twice, and notes that the design element is functionally the same as the safety standard and test procedure used in bicycles. A finding that the Britax strollers’ front-wheel detachment system is unsafe because of potential consumer misuse could thus call into question both the stroller standard and the bicycle-wheel standard that it relies on. The CPSC counters that Britax failed to provide all the information about front-wheel detachment incidents that it should have to either the ASTM International committee developing the voluntary standards that the CPSC later approved or to the CPSC itself.
Britax has been willing to conduct recalls with the CPSC before. In 2011, for example, the company jointly recalled its B-Nimble strollers over a risk of brake failure. It conducted other recalls with the CPSC in 2014, 2016 and 2017. Notably, although the CPSC has been receiving complaints about front-wheel detachment since 2012, the agency has only now attempted to force a recall. The company’s refusal to conduct a recall in this situation suggests the depth of its conviction that user error, not any defect in design, manufacture or warnings, is to blame, a point emphasized in the company’s statement: “While we respect the CPSC and its mission, we cannot agree to recall a product that is not defective.”
Questions of safety and user misuse are complicated and necessarily involve subjective judgments. Additionally, hazards that appear clear in hindsight are often hazy at the outset. It is common for reasonable people, including safety experts inside and outside government, to disagree about what constitutes a safety hazard, about the scope of a company’s responsibility for improper installation or misuse of a product by consumers, and about what constitutes an acceptable degree of risk.
This case, however, raises questions about whether the CPSC is taking the position that product makers must be guarantors of the absolute safety of the products they make, even when the products comply with applicable standards and warnings approved by the commission itself. The American legal system has not required companies to guarantee absolute safety of their products.
Companies in the U.S. commonly design out hazards where feasible, but may conclude that on balance the utility of the design outweighs the risk. In such case, rather than eliminating a feature, they may warn consumers how to avoid hazards that may be associated with the design to strike the right risk/utility balance. In this case, the ability of parents to detach the wheels of the jogging stroller easily allows parents with smaller vehicles to store the strollers in smaller-capacity trunks, allowing parents to travel to outdoor activity venues and bring their children along for the activity.
Although administrative and judicial lawsuits to force recalls have been exceedingly rare for the CPSC, the agency has initiated several in recent years. These include suits to force recalls and to recover civil penalties from companies who were allegedly late in reporting substantial product hazards. Suits targeting makers of small magnets, however, appear to be motivated by the commission’s view that small magnets provided only marginal utility in relation to the potential risk of ingestion by children. The Britax suit represents an even more expansive interpretation of this view.
Further, it suggests the willingness of a majority of commissioners to pursue administrative remedies when companies disagree with agency conclusions. Companies working with the CPSC on potential safety issues should bear this in mind as they work on joint solutions, just as they should remember that the agency’s jurisdiction extends only to products that fail to comply with a regulatory requirement, pose an unreasonable risk of serious injury or death or contain a defect that poses a substantial risk of harm.
Companies offer a range of products that use different designs, and make risk-utility assessments about new design features and options all the time. Consumer product companies and policymakers should keep a close eye on how consumer misuse is addressed in this case. The final decision will affect whether companies can rely on the CPSC’s approval of, and a company’s compliance with, an approved standard as a strong defense in this type of enforcement action. It may also shed light on how to interpret the contours of the risk-utility assessment, and the role of warnings in that balancing test.
This article is published with the permission of Law 360.