September 2011

From the editors of Wolters Kluwer Law & Business, this update describes important developments from CCH products liability and safety publications.

If you have any comments or suggestions concerning the information provided or the format used, we'd like to hear from you. Please send your comments to pamela.maloney@wolterskluwer.

Products Liability

North Dakota Court Rejects Apparent Manufacturer Doctrine
In answer to a certified question of law, the North Dakota Supreme Court did not adopt the “apparent manufacturer” doctrine set forth in the Restatement (Second) of Torts §400—or more recently, the Restatement (Third) of Torts: Product Liability §14—and apply it to Ch. 28-01.3 of the North Dakota Century Code. The question arose out of a products liability action brought by husband and wife who purchased a meat grinder from a specialty retailer. The wife allegedly injured her hand when it became lodged in the meat grinder during use, and the couple subsequently asserted negligence, strict liability, and breach of warranty claims against the meat grinder manufacturer and the retailer. Specifically, the couple alleged a design defect in the meat grinder as a result of large dimensions of the grinder opening and a failure to properly warn. The retailer asserted that it was not liable to the couple because it was a nonmanufacturing seller of the meat grinder under North Dakota law. The North Dakota Supreme Court found that the state legislature clearly intended to restrict, rather than expand, the availability of products liability actions as a remedy for personal injury, death or property damage arising out of use of defective products. According to the court, one means by which the legislature carried out its intent was to define who was a “manufacturer,” to define who was a “seller,” and then to sharply curtail liability of a “nonmanufacturing seller” under the state code. The state high court read the statutory direction as being both clear and comprehensive, leaving no room for the court to recognize or adopt the common law or the Restatement theory of “apparent manufacturer” liability. Moreover, the court found that its outcome “was foreseen by authors of the Restatement (Third) of Torts: Products Liability §14 (1998),” which noted that if a statute specifies responsibilities, the statutory terms control; but if a statute does not so specify, the rule under the Restatement provides that the common-law rule should govern. The court concluded that the North Dakota Products Liability Act treated nonmanufacturing sellers “more leniently” than did the common law rule, and, therefore, it was “bound to follow” that legislative determination. (Bornsen v. Pragotrade, LLC (NDSCt) CCH Products Liability Reports ¶18,694)

Speed Control Deactivation Switch Not Negligently Designed
A pickup truck owner presented no expert testimony or other evidence that the manufacturer breached its duty of care in designing the allegedly defective speed control deactivation switch; therefore, the manufacturer was not liable as a matter of law for the owner’s damages, the South Carolina Court of Appeals held, overturning a jury award for the owner of $41,000 in actual damages. The owner, who purchased the truck for use in his business, had parked the truck in his warehouse. Two days later, the owner discovered that a fire had destroyed the truck and the warehouse and had severely damaged several other pieces of equipment. An investigation revealed that the fire originated in the truck’s engine compartment and, according to the investigator, was caused by a defective speed control deactivation switch. In addition to the three elements common to all products liability claims, the court explained that the owner had to prove that the manufacturer breached its duty to exercise reasonable care in designing the product in order to recover on the negligent design claim. To prove this element, the truck’s owner had to offer more than proof that the switch was defective—the manufacturer admitted that it was. Instead, the court stated that the owner had to prove that the manufacturer was aware of the danger and failed to take reasonable steps to correct it. However, according to the court, the owner failed to present any evidence that the manufacturer’s conduct in designing the switch was negligent. In fact, the owner failed to present any evidence of the manufacturer’s conduct. With regard to expert testimony on this issue, the court found that two of the owner’s experts were not qualified to offer an opinion as to whether the manufacturer’s conduct was negligent. The owner’s third expert, a design analysis engineer who worked for the truck maker, offered no facts or opinions related to the manufacturer’s conduct in the original design of the truck or any of its components. Finally, in light of the complexity of the design and operation of a speed control deactivation switch, the court determined that the owner was required to present expert testimony on the issue of negligent design. (5 Star, Inc. v. Ford Motor Co. (SCCtApp) CCH Products Liability Reports ¶18,689)

No Liability for ATV Transmission Designer That Sold Design
A company whose transmission design was used in the manufacture of an all-terrain vehicle’s (ATV) transmission was not liable for injuries to a passenger when the ATV overturned because the company did not place the allegedly defective transmission into the stream of commerce, the U.S. Court of Appeals for the Second Circuit determined. The passenger had alleged that the gear of the ATV was defectively designed by the company, which had sold the rights to the design to the ATV’s manufacturer 26 years before the manufacture and sale of the transmission installed in the ATV. Under New York products liability law, the passenger had to prove that the company had placed in the stream of commerce a product with a design that was not reasonably safe and that the defective design was a substantial factor in causing the passenger’s injuries. The court also noted that the determination of defective design under strict products liability required a balancing of the likelihood of harm against the burden of taking a precaution against the harm. Because the company had sold all rights to the design at issue, the court concluded that the company could not be viewed as having placed the product into the stream of commerce. For that same reason, the company had no ability to learn from experience whether its design was causing injuries or to conduct safety tests, and, therefore, had no possibility of improving the design to diminish the risk of harm. Thus, imposing liability on the company would not serve the central rationale for strict products liability, the court concluded. (Emslie v. Borg-Warner Automotive, Inc. (2ndCir) CCH Products Liability Reports ¶18,690)

Tolling Questions Certified to VA High Court in Bone Drug Suit
In a consolidated appeal of four cases involving patients who were prescribed a brand name drug for the treatment of osteoperosis/bone loss and who subsequently developed osteonecrosis of the jaw, the questions of whether (1) Virginia law permits equitable tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction, and (2) Virginia law (Va. Code Ann. §8.01-229(E)(1)) permits tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction (i.e., cross-jurisdictional tolling), were certified to the Virginia Supreme Court by the U.S. Court of Appeals for the Second Circuit. Three patients and one patient estate (patients) alleged that their injuries were caused by the drug. A federal district court in New York concluded that the patients’ products liability claims against the drug manufacturer, brought under Virginia law, were not tolled by the pendency of a putative federal class action, which was filed in a federal district court in Tennessee on September 15, 2005, and which raised identical claims. The New York federal district court dismissed the patients’ claims as time-barred by Virginia’s two-year statute of limitations. On appeal, the patients argued that the statute of limitations was tolled by the pendency of the federal class action. In particular, they contended that the “rule” of the U.S. Supreme Court’s decision in American Pipe & Construction Company v. Utah, 414 U.S. 14 538 (1974)—a case which involved federal claims and a federal statute of limitations, and in which the Supreme Court stated an intent “to preserve the individual right to sue of the members of a proposed class until the issue of class certification” had been decided—should apply. The patients argued that pursuant to American Pipe, the filing of a putative class action tolls the limitations period for absent class members, regardless of whether the claims of absent members arose under federal or state law or whether the applicable state’s law permitted tolling; and, accordingly, the statute of limitations should have been tolled from September 2005 until the motion for class certification was denied in that case in January 2008. While Virginia law governed the question of whether the patients’ claims were tolled pending the Tennessee class action, the court of appeals said it was uncertain whether equitable or statutory cross-jurisdictional tolling was available under Virginia law. The appellate court determined that certification to the Virginia high court was appropriate as there was a lack of authoritative state court decisions on point, the issue was one of considerable importance to the state, the issues arose with some frequency, and certification could resolve the litigation as the issues to be certified would determine the issues on appeal. (Casey v. Merck & Co., Inc. (2ndCir) CCH Products Liability Reports ¶18,688)

NSAID Manufacturer Wins Reversal of Wrongful Death Verdict
The family of a patient with a long history of heart disease who died of a heart attack 25 days after he began taking a brand name, non-steroidal anti-inflammatory drug (NSAID) failed to present reliable evidence of general causation in support of its failure to warn claim against the drug manufacturer, and, therefore, was not entitled to recover against the drug maker, the Texas Supreme Court held. The decision reversed the court of appeals, which had affirmed a jury verdict in favor of the family. The jury had awarded $7 million actual damages, plus $25 million in punitive damages, which the trial court reduced to the applicable statutory maximum of $750,000. However, the state high court found that the family's evidence in support of their assertion that the drug caused the patient's death did not meet requirements for determining whether epidemiological evidence is scientifically reliable to prove causation as set forth by the court in Merrell Dow Pharmaceuticals, Inc. v. Havner [CCH Products Liability Reports ¶15,015]. The family failed to produce two qualifying independent epidemiological studies showing a statistically significant doubling of the relative risk of injury for patients taking the drug under conditions substantially similar to those of the patient (for both dose and duration) as compared to patients taking a placebo. (Merck & Co., Inc. v. Garza (TexSCt) CCH Products Liability Reports ¶18,692)

Jury Award for Dangerous Automobile Seat Design Upheld
A jury’s determination that an automobile manufacturer was liable to the family of a passenger killed in a rollover accident was supported by the evidence, the U.S. Court of Appeals for the Fifth Circuit held. The teenage passenger, whose seat was reclined at more than a 45-degree angle, was ejected from the passenger side of a motor vehicle after the driver fell asleep and flipped the vehicle. Both the driver and passenger were wearing seatbelts. However, the driver, whose seat was not reclined, sustained only minor injuries while the passenger died from her injuries. The family of the passenger sued the manufacturer, alleging that the design of the passenger seat was defective. The jury awarded the family $1.8 million for loss of consortium and mental anguish, but the award was later reduced to $810,000 based on the proportional liabilities of the vehicle occupants. The manufacturer appealed, arguing that the evidence was insufficient to support the finding that the passenger seat was unreasonably dangerous. The appeals court disagreed. Based on a “holistic” view of the evidence, a jury could have found that the risk posed by the seat’s design outweighed its utility, and that there were insufficient warnings or common knowledge about the risks to allow the passenger to avoid injury. The manufacturer also contended that the family failed to prove that a safer alternative design existed. However, the manufacturer’s trial strategy was focused on causation and unreasonable dangerousness. Because the manufacturer failed to argue that a safer design was not technologically or economically feasible, the standard of proof shifted to the less deferential “a manifest miscarriage of justice” standard. The appeals court found that there was at least some degree of evidence that warranted the jury’s verdict on this issue. Finally, the manufacturer argued that the product defect did not cause the passenger’s death, and that because no expert had testified as to causation, the jury verdict could not stand. An expert’s testimony is generally, but not always, required, the appeals court held. Further, causation could be inferred from the family’s expert testimony on other subjects. Although some facts weighed against causation, the evidence was not so overwhelmingly in the manufacturer’s favor to allow the appeals court to overturn the jury verdict. Based on these rulings, the appeals court affirmed the jury verdict in its entirety. (Goodner v. Hyundai Motor Co., Ltd. (5thCir) CCH Products Liability Reports ¶18,684)

Government Contractor Defense Bars Helicopter Crash Claims
Products liability claims arising out of a crash of an Army Special Operations Aviation Regiment MH-47E Chinook helicopter in Afghanistan were barred by the government contractor defense, the U.S. Court of Appeals for the Ninth Circuit held, affirming a decision by a federal district court in California. Two investigations into the cause of the crash revealed that it occurred after one of the helicopter's two engines suddenly “flamed out.” Survivors and heirs of the deceased in the crash alleged design, manufacture, and failure-to-warn defects against government contractors that designed and manufactured the helicopter and its component parts. The court of appeals held that under the U.S. Supreme Court’s framework of the government contractor defense in Boyle v. United Technologies Corp. [CCH Products Liability Reports ¶11,980], the survivors’ and heirs’ claims were barred. The first element of the defense required that a contractor show that the government “approved reasonably precise specifications.” The court’s review of the record showed that the U.S. Army approved reasonably precise specifications for the ignition system and for the design of the aircraft's engine control system (the Full Authority Digital Electronic Control (FADEC)) and the engine’s onboard computer that controlled the fuel flow to the engine (the Digital Electronic Control Unit (DECU)). The court further held that the operative test for the second element—conformity with specifications—turned on whether the alleged defect existed independently of the design itself. The court concluded that the helicopter conformed to the approved specifications for both the ignition and the FADEC-DECU. Finally, the government contractor defense required that government contractors warn the United States about any “dangers in the use of the equipment that were known to the [contractor] but not to the United States.” The Ninth Circuit stated that a government contractor is “only responsible for warning the government of dangers about which it has actual knowledge,” and concluded that the contractors satisfied the requirement. According to the court, Boyle did not require government contractors to warn of dangers that were already known to the United States. Additionally, the court ruled that the survivors and heirs failed to state a claim against the manufacturers and designers for allegedly violating their state law duty to warn of dangers of which the contractors should have known. The court found that it was beyond dispute that the “government exercised its discretion” when it selected relevant warnings for the MH-47E. In this case, the complete set of warnings was contained in the helicopter’s Operator’s Manual, which set forth specific “warnings,” “emergency procedures,” and “critical instructions” for the aircraft. Based on the government’s agreement with the contractors, the Army was fully responsible for the Operator’s Manual and its contents. Thus, because the Army, not the contractors, selected which warnings to include in the Manual, the survivors’ and heirs’ contention that the government did not exercise discretion over the content of these warnings was without merit, the court concluded. (Getz v. The Boeing Co. (9thCir) CCH Products Liability Reports  ¶18,681)

Parkinson's Drug Makers Not Liable for Gambling Addiction
A patient’s estate’s tort claims against pharmaceutical companies alleging that a drug prescribed for his Parkinson's disease caused him to gamble compulsively were time-barred by the applicable Texas two-year statute of limitations, the U.S. Court of Appeals for the Eighth Circuit held, affirming an opinion by a federal district court in Minnesota [In re: Mirapex Products Liability Litigation, CCH Products Liability Reports ¶18,512]. The patient's claims faulted the pharmaceutical companies for failing to warn him that taking the drug could lead to compulsive gambling. Based on the evidence presented, the court determined that the patient was on notice of his injury and of its causal connection to his drug prescription no later than 2005. He had access to information about the cause of his increased gambling; and his actions reflected an awareness of the underlying cause behind his compulsive behaviors when in 2005, he reported his compulsive gambling to a doctor and linked it to the drug. Later that same year, he was hospitalized while attempting to stop his use of the drug. Additionally, he wrote letters to casinos in May 2006 in which he requested that they not accept his business and explained that his lack of control was a result of a negative side effect of his medication. The court concluded that the claim accrued more than two years before the patient brought suit in 2009 and, therefore, was time-barred. In addition, the appellate court rejected the patient's arguments that it was error not to toll the statute of limitations based on the continuing tort doctrine, the "open courts" provision in the Texas Constitution, the ripeness doctrine, or the patient's alleged mental disability. First, the continuing tort doctrine applied only so long as the patient was unaware of the effect the drug was having on him. Because the patient became aware of the effect of the drug more than two years before he filed suit, the continuing tort doctrine did not save his claim, the court ruled. Second, the court of appeals ruled that the open courts provision of the Texas Constitution did not operate to save the patient’s claim because the doctrine was designed to protect a plaintiff who had yet to discover or become aware of his or her putative injury. The patient knew that he had been injured, and whatever difficulty he faced in proving his theory could not negate that fact, the court said. Third, the patient’s contention that it was error to conclude that the manifestation of a severe gambling problem in 2006 rendered his claims ripe at that time also was rejected by the court because the evidence sufficiently established a concrete injury in 2006. Finally, the Eighth Circuit affirmed the finding that the proffered evidence was insufficient to allow a reasonable jury to conclude that the patient lacked the requisite mental capacity during the limitations period. Therefore, the tolling provisions under Texas law were unavailable to the patient’s estate. Lastly, the appellate court agreed with the district court's prediction that the Texas Supreme Court would require that the patient, as a “subpurchaser,” should have given the drug manufacturers, as sellers, notice of his breach of warranty claim prior to filing suit as required under the Texas Business and Commerce Code. The court of appeals, therefore, concluded that the district court did not err in granting the pharmaceutical companies summary judgment on the patient's breach of warranty claim. (Gazal v. Boehringer Ingelheim Pharmaceuticals, Inc. (8thCir) CCH Products Liability Reports ¶18,680)

Texas Discovery Rule Prevents Dismissal of Claims on Appeal
The discovery rule under Texas law was applicable in an action by a patient who alleged design, manufacturing and marketing defects against the manufacturer of a prosthetic knee she had implanted and which allegedly caused her severe pain requiring its removal, the U.S. Court of Appeals for the Fifth Circuit held, reversing a federal district court in Texas. The ruling delays the accrual of the patient's claims so that they will not be time-barred by the Texas statute of limitations governing personal injury actions. Following the implant surgery, the patient experienced pain in her knee which progressively worsened. She first began to experience the pain in her knee in January 2008, and filed her complaint on September 10, 2010. However, on September 12, 2008, the patient had an x-ray taken and received a tentative diagnosis from her physician that the stem on the “tibial component” of the implant had come loose and was causing her pain. Because the patient's injury was of an “inherently undiscoverable” nature, in addition to being “objectively verifiable,” the Texas discovery rule applied in the case, the court of appeals ruled. (Brandau v. Howmedica Osteonics Corp. (5thCir) CCH Products Liability Reports ¶18,691)

Improper Forum Downs British Columbia Helicopter Crash Suit
Because British Columbia had a substantial interest in the outcome of a wrongful death suit against the U.S. manufacturers of a helicopter that stalled and crashed in Cranbrook, British Columbia, killing a Kenyan student on the ground, dismissal of an Indiana action on the basis of forum non conveniens was proper, the Indiana Court of Appeals held. The remedy provided under British Columbia law was not so clearly inadequate or unsatisfactory to the point that it was no remedy at all, according to the court, which upheld an Indiana superior court’s dismissal of the action. In determining the adequacy of removing the action to British Columbia, the appellate court considered both public and private interests in holding a trial in British Columbia. Private interest factors favoring a British Columbia forum were that witnesses to the accident and the damages were in British Columbia as were witnesses about the helicopter’s maintenance, the pilot’s training, the investigation of the accident, as well as the crash site and wreckage, and were accessible if needed at trial. Moreover, a similar action by the estates of the helicopter’s pilot and passengers was pending in British Columbia, and holding a single trial there was less costly and fairer to all the parties, the court reasoned. Public interest factors against a trial in Indiana were the costliness and time and burdening an Indiana jury with a controversy that had little connection to the state. Although the potential damages might be less in British Columbia than in Indiana, the surviving relatives would not be denied a remedy or be treated unfairly. Thus, dismissal of the action on the basis of forum not conveniens was not error, the appellate court ruled. (Anyango v. Rolls-Royce Corp. (IndCtApp) CCH Products Liability Reports ¶18,685)

Bellwether Case in Toyota MDL Survives Jurisdiction Motion
In a bellwether case in the multidistrict litigation relating to alleged sudden acceleration defects in motor vehicles manufactured by Toyota Motor Corp., the relatives of a driver who died as a result of injuries he sustained in a crash allegedly caused by the unexpected acceleration of the Toyota vehicle he was driving carried their burden to demonstrate that the federal district court supervising the MDL had jurisdiction. Following the crash, and upon learning of Toyota’s concealment of alleged safety defects leading to sudden unintended acceleration, the relatives filed their suit, alleging the following claims: (1) fraudulent concealment, (2) products liability: design defect, (3) products liability: failure to warn; (4) negligence, (5) breach of warranty, (6) Magnuson Moss Warranty Act (MMWA), 15 U.S.C. § 2301 et seq., (7) negligent infliction of emotional distress, (8) wrongful death, and (9) survival. The claims hinged on the theory that Toyota knew about defects in acceleration control and the electronic throttle control system in its vehicles, yet continued to make statements touting vehicle safety and reliability to consumers, while consciously withholding information regarding the dangerous defects. Toyota claimed that the court’s only basis for jurisdiction was federal question jurisdiction, premised on the relatives’ claim for relief under the MMWA, and that because the relatives could not meet the amount in controversy as the vehicle’s purchase price when new was only $21,000. Because MMWA claims must allege damages of at least $50,000, and because personal injury claims are not included in this threshold, the car maker argued that the relatives’ claim Plaintiffs’ claim was not cognizable and that the court lacked jurisdiction. However, the court agreed with the relatives that punitive damages were available under Utah law because breach of warranty actions involving personal injury are treated like tort claims, just like strict liability and negligence in Utah. The court found that it could not say with legal certainty that the relatives could not meet the jurisdictional amount of damages under the MMWA, in light of the value of the vehicle the deceased drove and the potential for punitive damages. Therefore, the court denied the car company’s motion to dismiss for lack of subject matter jurisdiction. (In re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation (CDCal), Case No. ML 10-2151 JVS (FMOx), September 12, 2011)

Product Safety

Sunsations to Pay $60,000 for Not Reporting Drawsting Violations
The Consumer Product Safety Commission (CPSC) has provisionally accepted a settlement agreement with Sunsations Inc., of Virginia Beach, Virginia, pursuant to which the company has agreed to pay a civil penalty of $60,000 to resolve CPSC staff allegations that Sunsations knowingly failed to report to CPSC immediately, as required by federal law, that it sold children's hooded sweatshirts with drawstrings at the neck from March 2008 through November 2010. Children's upper outerwear with drawstrings, including sweatshirts, sweaters and jackets, poses a strangulation hazard to children that can result in serious injury or death. In December 2009 [CCH Consumer Product Safety Guide ¶57,401] and again in March 2011 [CCH Consumer Product Safety Guide ¶58,054], CPSC and Sunsations announced recalls of more than 15,000 children's sweatshirts that were sold in Sunsations stores in Virginia Beach, Virginia, Ocean City, Maryland, and North Carolina. In agreeing to the settlement, which has been provisionally accepted by the Commission (5-0), Sunsations denies the allegations that it knowingly violated the law. (CCH Consumer Product Safety Guide ¶58,277)

CPSC To Restrict Cadmium in Children’s Products
CPSC has granted a request to establish standards restricting cadmium in children’s products, especially toy metal jewelry, and has directed CPSC staff to begin drafting a proposed rule unless a voluntary standard for cadmium in children’s jewelry was published by ASTM International, Inc. (ASTM) within three months after September 16, 2011. If a voluntary standard for cadmium in children’s jewelry is published by ASTM within this time frame, CPSC staff should then assess the adequacy of the voluntary standard and whether there was substantial compliance with the voluntary standard. Based on these assessments, the CPSC staff will make a recommendation on the disposition of the rulemaking petition within nine months after September 16, 2011. (CCH Consumer Product Safety Guide ¶58,291)

Problem Drywall Remediation Plan Issued by CPSC
CPSC and the U.S. Department of Housing and Urban Development (HUD) released updated remediation guidance for homeowners with problem drywall. The guidance calls for the replacement of all problem drywall; smoke and carbon monoxide (CO) alarms; electrical distribution components, including receptacles, switches and circuit breakers, but not necessarily wiring; and fusible-type fire sprinkler heads. The updated remediation guidance is based on studies just completed by the National Institute of Standards and Technology (NIST) on potential long term corrosion effects of problem drywall on select gas components, fire sprinkler heads, and smoke alarms. CPSC and HUD staffs believed that these final studies, which update the previous remediation guidance [CCH Consumer Product Safety Guide ¶58,061], along with previously-issued identification guidance, would enable homeowners to comprehensively remediate those homes containing problem drywall with potentially lower costs than by following the previous remediation guidance. (CCH Consumer Product Safety Guide ¶56,474)

Testing, Accreditation Criteria for Toys, Toy Chests Issued … 
CPSC has issued a notice of requirements that provides the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing of toys, pursuant to ASTM International’s ASTM F 963-08, and for testing of toy chests pursuant to section 4.27 of ASTM F 963-07ε1. The Commission noted that this industry standard became a consumer product safety standard by operation of the Consumer Product Safety Improvement Act and, therefore, it did not need to be incorporated by reference. The notice sets forth those sections of the standard that will not be subject to third party testing including, among others, those that address food and cosmetics and those pertaining to the manufacturing process. The Commission also clarified that it would not require testing and certification to the labeling requirements under the Federal Hazardous Substances Act and the Flammable Fabrics Act, which governs children’s sleepwear. Further, CPSC specified which provisions of the standard would be subject to third party testing and for which the Commission will only accept the accreditation of third party assessment bodies. Finally, noting that the international standards are likely to be revised, the Commission requested comments on how to make the transition in testing requirements as clear and efficient as possible should the standard change. The requirements for accreditation of third party conformity assessment bodies took effect on August 31, 2011. Comments in response to this notice of requirements should be submitted by September 30, 2011. (CCH Consumer Product Safety Guide ¶58,268)

… Comments Sought on Outreach and Education Plan
CPSC is seeking public comments on its recently developed strategic outreach and education plan to help the business community and other stakeholders learn about testing and certification requirements for children’s toys and toy chests along with their compliance with ASTM International’s Standard Consumer Safety Specification for Toy Safety, F 963-08, and section 4.27 (toy chests) from ASTM International’s F 963-07ε1 (toy safety standard). Effective for toys manufactured after December 31, 2011, manufacturers of children’s toys must assure that the covered toys and toy chests are tested for compliance with the toy safety standard by a third-party laboratory acceptable to the CPSC and must provide a written certificate of compliance for each covered toy.
Because of the likely impact of the toy safety standard on manufacturers and importers of covered toys, CPSC will conduct a three-stage strategic outreach and education plan for stakeholders. In the first stage, traditional and social media will inform stakeholders generally about the need to test and certify to the toy safety standard by the January 1, 2012, deadline. Information will be disseminated via trade publications, industry organizations, consumer groups, and others to insure that the requirements reach appropriate parties and to solicit additional outreach ideas and targets. Additionally, the Small Business Ombudsman will publish, in the Federal Register, a guide on the requirements in plain English in an attempt to garner additional suggestions and ideas. In Stage 2, examples and detailed FAQs (Frequently Asked Questions) will be provided to help stakeholders better understand the requirements and staff interpretations of specific provisions before the requirements become effective. Instructional videos and webinars are another possibility for illustrating toy safety requirements. In Stage 3, following the development of educational materials, an ongoing educational campaign will be undertaken to promote greater compliance with the toy standard, testing, and certification requirements. The CPSC will present the new requirements at industry trade shows, international meetings, conferences, and other public forums as funding permits and act as a resource for additional information. Webinars will be hosted free of charge and will be posted publicly on the CPSC website. Comments are due no later than October 21, 2011. (CCH Consumer Product Safety Guide ¶58,271)

NHTSA Allows Choice of Hybrids for Child Restraint Testing
The National Highway Traffic Safety Administration (NHTSA) has amended a provision of Federal Motor Vehicle Safety Standard (FMVSS) No. 213, “Child Restraint Systems,” by allowing manufacturers of child restraint systems to choose between either the Hybrid II 6–year-old child dummy (H2-6C) or the Hybrid III 6-year-old child dummy (HIII-6C) for testing purposes. When HIII-6C was first introduced as the new standard for child crash test dummies, there was mixed acceptance by the child restraint industry and related commentators. Some commentators considered the dummy to have a longer neck elongation and correspondingly higher high-head injury criterion values. Accordingly, NHTSA allowed both the H2-6C and HIII-6C models to be used by manufacturers for testing purposes. In addition, after examining the performance of the HIII-6C in the FMVSS environment, the agency had set August 1, 2010, as the final compliance date, at which time the standard would shift to sole use of the HIII-6C. However, the agency has come to the conclusion that, while the HIII-6C is state-of-the-art and is used voluntarily by many manufacturers, there are still ongoing efforts by the agency to improve it as a useful FMVSS No. 213 test device. Thus, the agency has determined, after commentary and input from interested third parties, that it will adopt the proposed amendment to FMVSS No. 213 to allow, at the manufacturer’s option, the use of either the H2-6C or the HIII-6C in compliance tests of child restraints until further notice by the agency. Petitions for reconsideration are due by October 24, 2011. (CCH Consumer Product Safety Guide ¶42,068)

Electronic Stability Control Systems Requirements Amended by NHTSA
NHTSA has granted, in part, a petition for reconsideration of a September 2008 final rule requiring light vehicles to be equipped with electronic stability control systems (ESCs) by amending slightly the test procedures of the standard. On April 6, 2007, the NHTSA published a final rule establishing Federal Motor Vehicle Safety Standard (FMVSS) No. 126, which set forth the requirements for ESC systems on new light vehicles [CCH Consumer Product Safety Guide ¶41,957]. On September 2008, the NHTSA amended this rule [CCH Consumer Product Safety Guide ¶41,989] by altering various provisions that deal with the control panel and telltale lights of the ESC systems. The Alliance of Automobile Manufacturers (the Alliance) then petitioned the agency for further changes to this amendment. The Alliance requested that the agency’s regulations regarding ESC control panel functionality and organization be less restrictive and further clarified. The Alliance also requested in its petition that NHTSA slightly change the procedure it uses for testing light vehicles; specifically, the petition requested that light outriggers be allowed on lightweight trucks, multipurpose passenger vehicles, and buses. After consideration, NHTSA determined that the Alliance’s proposals were unnecessary in regards to the organization and function of the ESC control panel. However, the agency granted the Alliance’s request regarding the use of light outriggers for testing purposes on lightweight trucks, multipurpose passenger vehicles, and buses. NHTSA found there was a possibility that production of these vehicles may increase in the future and that the requested change would promote accuracy of testing results and driver safety. The amendment is effective October 11, 2011. Petitions for reconsideration are due no later than October 24, 2011. (CCH Consumer Product Safety Guide ¶42,069)