ARTICLE
19 April 2024

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

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Foley & Lardner

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Foley & Lardner LLP looks beyond the law to focus on the constantly evolving demands facing our clients and their industries. With over 1,100 lawyers in 24 offices across the United States, Mexico, Europe and Asia, Foley approaches client service by first understanding our clients’ priorities, objectives and challenges. We work hard to understand our clients’ issues and forge long-term relationships with them to help achieve successful outcomes and solve their legal issues through practical business advice and cutting-edge legal insight. Our clients view us as trusted business advisors because we understand that great legal service is only valuable if it is relevant, practical and beneficial to their businesses.
Food and beverage companies may be surprised to learn that the U.S. Food and Drug Administration is not the exclusive regulatory authority over the safety of foods and beverages.
United States Consumer Protection

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.

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