Product Identification; Notice of Inquiry; Request for Comments and Information

CONSUMER PRODUCT SAFETY COMMISSION

Product Identification; Notice of Inquiry; Request for Comments

and Information

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of inquiry.

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SUMMARY: The Commission frequently warns the public about unsafe

products or works with industry to conduct recalls or other corrective

actions on such products that are in the hands of consumers. However,

these products can be difficult for the Commission and consumers to

identify because they often lack markings that specify the name and

address of the manufacturer or importer.

To address this problem, the Commission is considering requiring

firms to put identifying information on their products. The Commission

will also consider alternative ways to address the problem. Therefore,

the Commission is issuing this notice of inquiry to solicit comments

from industry, consumers and all other interested parties. The

Commission is particularly interested in receiving specific information

on the expected economic effects of this proposal.

After evaluating all comments received and all information

available, the Commission will decide whether to propose for additional

public comment a product identification rule.

DATES: Written comments in response to this notice of inquiry must be

received by the Commission no later than January 6, 1995.

ADDRESSES: Comments, preferably in five (5) copies, should be mailed to

the Office of the Secretary, Consumer Product Safety Commission,

Washington, DC 20207-0001 or delivered to room 502, 4330 East West

Highway, Bethesda, Maryland 20814.

FOR FURTHER INFORMATION CONTACT: Alan Shakin, Office of the General

Counsel, Room 700, at the above address; telephone 301-504-0980.

SUPPLEMENTARY INFORMATION:

A. Background

The Commission has the authority to order firms to repair, replace

or refund the purchase price of unsafe consumer products, see 15 U.S.C.

1274(b) and 2064(d), and to give public notice of the hazards. 15

U.S.C. 1274(a) and 2064(c). In addition, the Commission frequently

reaches agreements with firms to give public notice and take corrective

actions voluntarily to remove unsafe products from the marketplace. In

this notice we will refer to the corrective actions of notice and

repair, replacement and refund generally as ``recalls.''

The Commission consistently works to improve the effectiveness of

recalls of unsafe consumer products by making more consumers aware of

recalls and by encouraging more consumers to respond when they have a

recalled product. The most effective recalls occur when consumers can

be told that a recall applies to a particular brand and model of a

product that was manufactured at a particular time, and when all of

this information is displayed on the product.

Sometimes, however, the Commission cannot even seek a recall of an

unsafe product because the Commission does not know what firm

manufactured, imported or distributed the product to consumers. For

example, since 1984 the Commission knows of more than 20 children who

choked to death on toys that could not be identified. These toys had no

identifying information on them--except perhaps the country of

manufacture--and the place of purchase was unknown.

In other cases, the Commission is able to identify the firm that

made or imported the product and is able to negotiate a recall.

However, the absence of identifying information on the product makes it

extremely difficult for consumers to know whether they have the

recalled product.

A recent example of this situation is a pacifier that failed to

comply with the Commission's safety requirements. The Commission and

firm negotiated a recall and attempted to describe the pacifier in a

joint press release. However, this pacifier was virtually

indistinguishable from many other pacifiers unaffected by the recall,

and therefore was difficult to describe meaningfully to consumers. The

press release described the affected pacifier as ``consist[ing] of a

pink, yellow, or blue guard or shield and ring with a rubber nipple.''

A similar situation arises when nearly identical products are

distributed by different firms, and many brands are recalled. For

example, numerous brands of metal tubular bunk beds were recalled

earlier this year, but the beds had no identifying marks. Many

consumers did not know whether their beds were involved in the recall.

And, even if consumers knew that their beds were recalled, they could

not easily determine what firm was responsible for manufacturing

particular beds. This problem occurs frequently with a variety of

products. The problem of describing recalled products to consumers is

compounded because the media often shorten, and may reword, the

description contained in the press release announcing a recall.

Even when recalled products are still in the hands of retailers, it

can be difficult to identify the products. The manufacturer or importer

of a recalled product may not notify its retail customers because it is

no longer in business, is unwilling to do a recall or lacks complete

records of its customers. In such situations, the Commission publicizes

the recall, usually by issuing a press release. When the identifying

information provided in the release is on the packaging of the recalled

product, retailers can quickly remove the affected product from their

shelves.

Finally, the Commission knows from experience that recalls

sometimes have to include products that do not present a safety problem

because the products are not marked in a way that allows those that

present the risk to be distinguished from the same model of products

that do not. For example, a quality control problem during a particular

week may have caused a defect in only a few thousand toys. If those

toys cannot be distinguished from the same toys manufactured during

different weeks, they would all require recall. On the other hand, if

the defective toys are marked with a code that pinpoints the problem

week, the scope of the recall can be limited and its expense reduced.

This result may be helpful to industry, consumers and the Commission.

B. Scope

The Commission enforces safety rules for thousands of different

consumer products, and products that fail to comply are generally

recalled. Even if no specific rule applies to a product, all consumer

products are subject to recall if they present a substantial hazard.

Many of the Commission's safety rules and recalls involve

children's and fireworks products. Moreover, these products often place

at risk children who are less able to protect themselves from unsafe

products than are adults. Accordingly, at this time the Commission is

considering a product identification rule only for children's and

fireworks products.

C. A Possible Product Identification Proposal

This section discusses the specific provisions of a possible

product identification proposal. The provisions are all subject to

change, particularly if information received from the public during the

comment period supports different provisions that would accomplish the

Commission's objectives while imposing smaller economic burdens on

industry.

1. Marking Provisions

Different types of permanent marking would be acceptable. Industry

members would be able to choose the type that is most suitable for the

product, and least expensive, so long as the appropriate information is

communicated and will remain on the product permanently.

The retail packaging of consumer products already contains a great

deal of information and the amount of required information has been

kept to a minimum. The name and location of a manufacturing, importing

or private labeling firm located in the United States are the most

important pieces of identifying information to help the Commission

trace a product. (As discussed in section 2(a) below, a code on file

with the Commission may be sufficient.) If there is a recall, it is

also important to have products identified according to their model and

their production run, or according to similar categories that will help

pinpoint the particular products that are unsafe. (As discussed in

section 2(b) below, this information could also be in code.) This helps

limit recalls to just the products that are unsafe.

The size and conspicuousness of the marking are less significant in

this type of proposal than they would be in one designed to provide

information to consumers at the time of purchase. Here, it would be

sufficient if the information can be read without disassembly of the

product or magnification.

2. Exceptions

The proposal could include various exceptions to minimize its

economic impact:

(a) Firms might prefer to mark products with a code such as a

registered trademark or a corporate symbol or logo in place of its name

and address. The proposal could permit this if the firm notifies the

Commission and waits ten working days after receipt of the notification

for the Commission to object. An objection would be made, for example,

if some other firm was already using the same or a too similar code.

(b) The model and date of production information could be provided

in code, as well. If the Commission needed to know that information, it

would obtain the code or the information from the firm.

(c) Because consumer products vary greatly in size and material,

the Commission recognizes that it may be impracticable to permanently

mark some limited number of products. The proposal would therefore give

firms some leeway in complying. As examples, it is impracticable to

mark modeling clay because of its texture, and it is probably

impracticable to mark small glass marbles. However, the containers of

any products that qualify for an exception might have to be permanently

marked or printed with the same identifying information. While

containers may be discarded or lost, this provision is intended to

afford a reasonable alternative for products which cannot practicably

be permanently marked.

(d) Products consisting of more than one piece, such as a set or

collection, may not have to be permanently marked on every piece. The

largest piece might have to be so marked--as well as any container that

comes with the product. For example, the board in a board game

(assuming it is the largest piece) and the box would be marked, but not

the dice, markers or other pieces in the game. If all pieces in a set

or collection are essentially the same size, they might all have to be

permanently marked. In addition, if many pieces would fall into the

category of ``the largest,'' all of those pieces might have to be

marked. While requiring every piece in a set or collection to be

permanently marked would be preferable from a safety standpoint, such a

broad provision might be unduly burdensome.

3. Effective Date

The Commission solicits all available relevant information on an

appropriate effective date, including industry cycling schedules for

replacing capital equipment.

4. Text of Possible Provisions

To obtain specific public comments and specific information, the

Commission is providing the text of the possible product identification

provisions that it is considering. Again, the Commission emphasizes its

willingness to consider alternative approaches for accomplishing its

objectives.

The text of the possible provisions is:

Purpose

If an unsafe product is found with no identifying information on

it, the Commission may be unable to determine its manufacturer, private

labeler or importer. Corrective action may therefore not occur, and

consumers will remain at risk. One purpose of this proposal is to

assure that the Commission will be able to identify the firms

responsible for all unsafe products, and be able to pursue corrective

actions.

When firms do take corrective actions, such as warning the public

and recalling unsafe products, the lack of inadequacy of identifying

information may prevent consumers from knowing whether they have the

product in question. Many products look the same or similar, and their

markings may be the only practicable way to identify them. A second

purpose of this proposal is to assure that consumers will be able to

identify products that are the subject of warnings and recalls.

If a product has been coded by date and/or production run, the

scope of any recall of that product can be limited and its cost

reduced. A third purpose of this proposal is to achieve this result.

Scope

This proposal applies to every children's product and fireworks

product that is first introduced into interstate commerce on or after

its effective date.

Definitions

``Children's product'' means ``any toy or other article intended

for use by children,'' as the phrase is used in the Federal Hazardous

Substances Act at 15 U.S.C. 1261(f)(1)(D) and (q)(1)(A).

``Fireworks product'' means all fireworks products that are subject

to the requirements at 16 CFR 1500.14(b)(7); 1500.17(a) (3), (8) and

(9); or Part 1507.

``Manufacturer'' means any person who manufactures, produces,

assembles or imports a children's product.

``Private labeler'' means an owner of a brand or trademark on the

label of a children's product which bears a private label, as the term

``bears a private label'' is defined in the Consumer Product Safety Act

at 15 U.S.C. 2052(a)(7)(B).

``U.S. firm'' means a business entity that is incorporated in a

state or territory of the United States or that has officers or

employees who work full-time in a state or territory within the United

States and who have authority to speak for the firm on matters related

to product recalls.

``Permanently marked'' means paint-stenciled, die-stamped, molded,

indelibly stamped or otherwise permanently affixed, fastened or

attached to a product by means of a tag, token or other suitable

method, including securely sewn on, so that the marking cannot be

readily removed or obliterated during normal use or reasonably

foreseeable damage, abuse or misuse of the product.

``Set or collection'' means a product that consists of varied items

which are intrinsically complementary to its function, purpose or use.

Examples of sets or collections include jigsaw puzzles, bags of

marbles, boxes of crayons or colored pencils, building sets and board

games.

Marking Provisions

Every children's product and fireworks product shall be permanently

marked to indicate: the name of the U.S. firm that is the manufacturer

or private labeler of the product; the location or business address in

the United States, including the city, state and zip code, of the U.S.

firm; a number (such as a model number or stock number) or symbol that

identifies the product and distinguishes it from all other products

which are not of identical construction, composition and dimensions;

and a date or number or symbol that identifies the production run or

date of manufacture of the product. The packaging of every product

shall also be marked or printed with the same information.

The information described above must be in letters and numbers that

are at least one-sixteenth inch high and must be able to be read

without any disassembly of the product.

Exceptions

A U.S. firm that would be identified on a product may notify the

Commission's Office of the Secretary that it intends to use a

registered trademark, a corporate symbol or some other unique code

instead of the firm's name and address. If the Commission does not

object within ten working days after receiving such notification on

grounds that the chosen code would not adequately distinguished the

firm from another company, the firm nay use that code.

The model and production run information may also be coded if the

code and/or the uncoded information is available to any Consumer

Product Safety Commission representative immediately upon request at

the specified address.

If it is physically or technologically impracticable to permanently

mark a children's product or fireworks product, the required

information shall be permanently marked or printed on (1) the immediate

container of the product, (2) any container sold with and intended to

be used with the product, and (3) any container sold with and intended

to be used for storage of the product after purchase.

If a children's product or fireworks product is as set or

collection, only the largest component must be permanently marked. If

all of the components are the same size, or if multiple components are

``the largest,'' all such components must be marked. Unless every

component of a set or collection is marked, the containers of the

product must also be marked.

All comments on this notice of inquiry should be mailed to the

Office of the Secretary, Consumer Product Safety Commission,

Washington, D.C. 20207-0001, or delivered to that office at Room 502,

4330 East West Highway, Bethesda, Maryland 20814, and received no later

than January 6, 1994.

Dated: November 1, 1994.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

[FR Doc. 94-27416 Filed 11-4-94; 8:45 am]

BILLING CODE 6355-01-M