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Never Say Never

Recently, our chairman was interviewed by the Philadelphia Inquirer, in which he reportedly said that he would never again allow a Corrective Action Plan (CAP) to be announced without the word “recall” in the headline.  If this report is accurate, it raises a number of serious issues.

First, it does not seem wise to make an absolute statement that squeezes flexibility out of the system, as circumstances may arise in the future that warrant a different approach.  Indeed, the agency is currently negotiating a new corrective action plan–unrelated to the case giving rise to the chairman’s remarks–in which use of the word “recall” seems inapt and perhaps even misleading.  To adopt a “one size fits all” rule, precluding alternative approaches even when they may be more effective, is shortsighted.  In this context, strict adherence to the chairman’s new policy may force the agency to pursue mandatory recalls, which tend to be more expensive in terms of staff resources and end up delaying (or forfeiting) an acceptable consumer remedy.

Second, who is helped by making such rigid statements?  The CPSC staff has held the line on the use of the word “recall” for years with very few exceptions.  I am aware of only one prominent case during the current chairman’s tenure, and the chairman continues to defend that decision in the same Philadelphia Inquirer interview.  Some critics point back to a 2009 CAP involving a recreational off-highway vehicle (ROV).  But even though the word “recall” was not included in the announcement of that CAP, the Commission has recently singled out that same CAP as highly successful in reducing rollovers and other incidents.  See Safety Standard for Recreational Off-Highway Vehicles (ROVs), 79 Fed. Reg. 68964, 68967 (Nov. 19, 2014).

Third, the chairman’s inflexible position appears to prejudge the outcome of the rulemaking on the proposed voluntary recall rule.  See Voluntary Remedial Actions and Guidelines for Voluntary Recall Notices, 78 Fed. Reg. 69793 (Nov. 21, 2013).  There, the agency proposed a non-binding (interpretive) rule that each voluntary recall notice “should include the word ‘recall’ in the heading and text.”  78 Fed. Reg. at 69797.  For notices in contested (involuntary) recall cases, by contrast, CPSC’s regulation says that the notice “must include the word ‘recall’ in the headline and the text.”  16 C.F.R. § 1115.27(a)(emphasis added).  Even there, however, the Commission expressly recognizes that exceptions may be appropriate: the Commission “may determine that one or more of the recall notice requirements set forth in this subpart is not required, and will not be included, in a recall notice.”  16 C.F.R. § 1115.29(b).  The chairman’s position, therefore–if accurately reported—purports to eliminate flexibility that the Commission sought to preserve even for contested recalls.

In short, there are plenty of good reasons for avoiding absolute statements that eliminate flexibility, especially in the context of a recall system that depends so heavily on voluntary cooperation.  The better approach would be to apply the old maxim: “never say never.”

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