[Federal Register: November 7, 1994] ======================================================================= ----------------------------------------------------------------------- CONSUMER PRODUCT SAFETY COMMISSION Product Identification; Notice of Inquiry; Request for Comments and Information AGENCY: Consumer Product Safety Commission. ACTION: Notice of inquiry. ----------------------------------------------------------------------- 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