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The limitations of our consumer safety system

    An article published in the October 8, 2007, New York Times helps to illustrate the short-comings of our consumer product safety system in this country.  Unlike Europe, for example, we do not have any process for pre-approval of childrens' toys and other specific product areas.  We rely solely upon product recalls, and it is clear that our product recall system is overly reliant upon manufacturer and retailer initiative.  The recent investigation of Stand 'n Seal, sold by Home Depot, helps to explain the limitations and problems. 

        Stand 'n Seal was marketed in 2003 as a time-saving method of waterproofing tile grout on tile floors.  The in-store displays demonstrated a consumer applying the sealer with an aerosol can, without any form of breathing protection in front of a closed window.  No problems were encountered until the manufactuerer, Roanoke Company [now BRTT] switched the active ingredient from a DuPont chemical to a chemical known as Flexipel S-22WS, mad by a company in Georgia.  The safety data sheet published by the maker of Flexipel explicitly stated that it should not be used in aerosol form because it could cause respiratory injury, however, it was marketed in this form by BRTT, and when customers began calling with complaints, phone responders were told to deny previous complaints and to suggest that victims were not securing adequate ventilation because the newly-formulated product was less "pungent".

        Although Federal rules require a manufacturer to report a potential health threat to the CPSC within 24 hours, BRTT did not contact the CPSC for several months, and when it finally did, it was apparently in response to a threat by the Rocky Mountain Poison and Drug Center to call the commission directly.  Still, no action was taken to remove the product, and almost three months passed before a recall was initiated.  In the interim, dozens more people suffered respiratory injury and two men died from exposure to the aerosol.

        Because the CPSC doesn't have the facilities or the resources to test the product on its own, it then relied upon the manufacturer's representation that the product had been fixed.  Instead, the company merely added additional odor components but left the dangerous chemical [which the supplier said should not be used in this manner] in the aerosol and re-supplied Home Depot with 50,000 new cans to re-stock shelves.   

        Meanwhile dozens of additional injuries have occurred, including a contractor from Zeeland, Michigan, who purchased a replacement can, and an office manager from California who in 2006 purchased a can from the original batch of recalled Stand 'n Seal that had remained on the Home Depot shelves.  The Michigan purchaser is likely to find that Home Depot felt no pressure to market only safe products, since product "reform" in Michigan often holds the retailer harmless if the retailer did not modify the product it sells:  it recognizes little duty or no duty for retailers to use "due care" in identifying and avoiding unsafe products. 

        The NYT article identifies a number of consumers who were injured by the "reformulated" product before Home Depot and the manufacturer finally pulled it from product shelves in March of 2007.  Sadly, the CPSC has never acknowledged that the problem was not "fixed" in 2005, and consumer recommendations from the commission claim that Stand 'n Seal manufactured after June of 2005 are "safe"--even after the manufacturer and seller have admitted otherwise.

        With that kind of protection for consumers, perhaps we should simply close the doors on the CPSC entirely, and give its budget to European governmental agencies that actually do investigate the safety of products:  we would have to out-source a few more jobs, but no one seems particularly concerned about that issue, either.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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