What Food & Beverage Companies Need To Know About The U.S. Consumer Product Safety Commission – Product Liability & Safety

Food and beverage companies may be surprised to learn that the
U.S. Food and Drug Administration (“FDA”) is not the
exclusive regulatory authority over the safety of foods and
beverages. Indeed, other governmental authorities may govern
depending on the nature of the product. For example, the U.S.
Department of Agriculture is the principal regulator of meat,
poultry, and some fish and egg products.¹

Another important agency, the Consumer Product Safety Commission
(“CPSC”) is an independent federal agency that does not
regulate the safety of food and beverages, but has regulatory
authority over food packaging or containers that present mechanical
or physical risks of injuries not related to food contamination,
migration, or spoilage, such as sharp edges, flammability, etc. And
the CPSC is becoming increasingly aggressive in enforcing consumer
product safety regulations and standards. The following are six
points food and beverage companies should know about CPSC
compliance:

1. Under the Poison Prevention Packaging Act (PPPA) (15 U.S.C.
   §§ 1471-1477) as enforced by the CPSC, household
   substances, including food and dietary supplements that include
   certain chemicals, such as fluoride and iron, must have
   child-resistant packaging.²




2. Under the Consumer Product Safety Act (CPSA) (15 U.S.C.
   §§ 2051 et seq.) as enforced by the CPSC, manufacturers,
   importers, distributors, and retailers of food and beverage
   products must consider whether food and beverage packaging could
   pose a safety hazard, for example, because of sharp
   edges.³




3. Under the CPSA as enforced by the CPSC, food and beverage
   companies should consider whether food and beverage packaging could
   pose a choking hazard. For example, recently the CPSC issued a
   recall for a liquid rolling candy product because the rolling ball
   in the candy packaging could dislodge and create a chocking risk to
   children.⁴




4. The CPSC is laser-focused on children’s products, including
   requiring manufacturers and importers of products marketed towards
   children twelve years old and younger to certify in a written
   Children’s Product Certificate that their children’s
   products comply with applicable children’s product safety rules
   based on test results from a CPSC-accepted laboratory.⁵
   This includes children’s feeding products like cups, plates,
   and baby bottles.




5. Under the CPSA, manufacturers, importers, and distributors of
   food and beverage products should consider how potential mechanical
   hazards could affect their food and beverage products. For example,
   the CPSC issued a recall for instant ramen noodle products where
   the packaging could pose a fire risk when heated in a
   microwave.⁶ Additionally, the CPSC issued a recall for
   countertop ice makers due to laceration hazards.⁷




6. Manufacturers, importers, distributors, and retailers must
   timely report to the CPSC known product defects and other
   noncompliance with the PPPA and CPSA, or risk steep civil penalties
   of up to $120,000 per knowing violation and $17,150,000 for a
   series of related violations, as adjusted for inflation in
   2021⁸. And, the CPSC is working with Congress to remove
   penalty caps entirely, adding another layer of exposure to
   companies under its jurisdiction.⁹

Footnotes

1. USDA Markets, Regulation, and Policy
Statement (updated Feb. 29, 2024)
https://www.ers.usda.gov/topics/food-safety/markets-regulation-and-policy/#:~:text=USDA%20is%20responsible%20for%20regulating,and%20almost%20all%20other%20foods.

2. See 15 U.S.C. § 1472; 16
C.F.R. § 1700.14.

3. Memorandum of Understanding Between
the U.S. Consumer Product Safety Commission and The U.S. Food and
Drug Administration, MOU 225-76-2003 (Dec. 15, 2017) (available at:
https://www.fda.gov/about-fda/domestic-mous/mou-225-76-2003).

4. See
https://www.cpsc.gov/Recalls/2024/Twenty-Four-Six-Foods-Recalls-Happiness-USA-Roller-Ball-Candy-Due-to-Choking-Hazards.

5. 15 U.S.C. § 1278a.

6. See
https://www.cpsc.gov/Recalls/2019/Lotus-Foods-Recalls-Ramen-Noodle-Soup-Cups-Due-to-Fire-and-Burn-Hazards.

7. See
https://www.cpsc.gov/Recalls/2024/Countertop-Nugget-Ice-Makers-Recalled-Due-to-Laceration-Hazard-Sold-Exclusively-through-Amazon-Distributed-by-Far-Success-Trading.

8. Civil Penalties, Notice of
Adjusted Maximum Amounts, 86 F.R. 68244 (Dec. 1, 2021),
https://www.govinfo.gov/content/pkg/FR-2021-12-01/pdf/2021-26082.pdf.

9.
https://www.foley.com/insights/publications/2024/02/consumer-advocacy-protection-remove-cap-civil-penalties/.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.