“Substantial product hazard” defined
For purposes of this section, the term “substantial product hazard” means—
a failure to comply with an applicable consumer product safety rule under this chapter or a similar rule, regulation, standard, or ban under any other Act enforced by the Commission which creates a substantial risk of injury to the public, or
a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public.
Noncompliance with applicable consumer product safety rules; product defects; notice to Commission by manufacturer, distributor, or retailer
Every manufacturer of a consumer product, or other product or substance over which the Commission has jurisdiction under any other Act enforced by the Commission (other than motor vehicle equipment as defined in section 30102(a)(7) of title 49
See References in Text note below.
), distributed in commerce, and every distributor and retailer of such product, who obtains information which reasonably supports the conclusion that such product—
fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard upon which the Commission has relied under section 2058 of this title
fails to comply with any other rule, regulation, standard, or ban under this chapter or any other Act enforced by the Commission;
contains a defect which could create a substantial product hazard described in subsection (a)(2); or
creates an unreasonable risk of serious injury or death,
shall immediately inform the Commission of such failure to comply, of such defect, or of such risk, unless such manufacturer, distributor, or retailer has actual knowledge that the Commission has been adequately informed of such defect, failure to comply, or such risk. A report provided under paragraph (2) may not be used as the basis for criminal prosecution of the reporting person under section 1264 of this title
, except for offenses which require a showing of intent to defraud or mislead.
Repair; replacement; refunds; action plan
If the Commission determines (after affording interested parties, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (f)) that a product distributed in commerce presents a substantial product hazard and that action under this subsection is in the public interest, it may order the manufacturer or any distributor or retailer of such product to provide the notice required by subsection (c) and to take any one or more of the following actions it determines to be in the public interest:
To bring such product into conformity with the requirements of the applicable rule, regulation, standard, or ban or to repair the defect in such product.
To replace such product with a like or equivalent product which complies with the applicable rule, regulation, standard, or ban or which does not contain the defect.
To refund the purchase price of such product (less a reasonable allowance for use, if such product has been in the possession of a consumer for one year or more (i) at the time of public notice under subsection (c), or (ii) at the time the consumer receives actual notice of the defect or noncompliance, whichever first occurs).
An order under this subsection shall also require the person to whom it applies to submit a plan, for approval by the Commission, for taking action under whichever of the preceding subparagraphs under which such person has been ordered to act. The Commission shall specify in the order the persons to whom refunds must be made if the Commission orders the action described in subparagraph (C).
So in original. Probably should be “paragraph (1)(C).”
An order under this subsection may prohibit the person to whom it applies from manufacturing for sale, offering for sale, distributing in commerce, or importing into the customs territory of the United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), or from doing any combination of such actions, the product with respect to which the order was issued.
If the Commission approves an action plan, it shall indicate its approval in writing.
If the Commission finds that an approved action plan is not effective or appropriate under the circumstances, or that the manufacturer, retailer, or distributor is not executing an approved action plan effectively, the Commission may, by order, amend, or require amendment of, the action plan. In determining whether an approved plan is effective or appropriate under the circumstances, the Commission shall consider whether a repair or replacement changes the intended functionality of the product.
If the Commission determines, after notice and opportunity for comment, that a manufacturer, retailer, or distributor has failed to comply substantially with its obligations under its action plan, the Commission may revoke its approval of the action plan. The manufacturer, retailer, or distributor to which the action plan applies may not distribute in commerce the product to which the action plan relates after receipt of notice of a revocation of the action plan.
No charge shall be made to any person (other than a manufacturer, distributor, or retailer) who avails himself of any remedy provided under an order issued under subsection (d), and the person subject to the order shall reimburse each person (other than a manufacturer, distributor, or retailer) who is entitled to such a remedy for any reasonable and foreseeable expenses incurred by such person in availing himself of such remedy.
An order issued under subsection (c) or (d) with respect to a product may require any person who is a manufacturer, distributor, or retailer of the product to reimburse any other person who is a manufacturer, distributor, or retailer of such product for such other person’s expenses in connection with carrying out the order, if the Commission determines such reimbursement to be in the public interest.
Cost-benefit analysis of notification or other action not required
Nothing in this section shall be construed to require the Commission, in determining that a product distributed in commerce presents a substantial product hazard and that notification or other action under this section should be taken, to prepare a comparison of the costs that would be incurred in providing notification or taking other action under this section with the benefits from such notification or action.
Substantial product hazard list
The Commission may specify, by rule, for any consumer product or class of consumer products, characteristics whose existence or absence shall be deemed a substantial product hazard under subsection (a)(2), if the Commission determines that—
such characteristics are readily observable and have been addressed by voluntary standards; and
such standards have been effective in reducing the risk of injury from consumer products and that there is substantial compliance with such standards.
Not later than 60 days after promulgation of a rule under paragraph (1), any person adversely affected by such rule may file a petition for review under the procedures set forth in section 2060 of this title.
[Pub. L. 92–573, § 15], Oct. 27, 1972, [86 Stat. 1221]; [Pub. L. 94–284, § 12(a)], May 11, 1976, [90 Stat. 508]; [Pub. L. 97–35, title XII, § 1211(h)(4)], Aug. 13, 1981, [95 Stat. 723]; [Pub. L. 97–414, § 9(j)(3)], (m), Jan. 4, 1983, [96 Stat. 2064], 2065; [Pub. L. 100–418, title I, § 1214(d)], Aug. 23, 1988, [102 Stat. 1156]; [Pub. L. 101–608, title I], §§ 111(a)(2), 112(a), 113, Nov. 16, 1990, [104 Stat. 3114], 3115, 3117; [Pub. L. 110–314, title II], §§ 214, 223(a), Aug. 14, 2008, [122 Stat. 3052], 3068.)