CPSC PRODUCT RECALL LAWYERS
Product Recall Defense by Former CPSC Agency Attorneys
A demand from the Consumer Product Safety Commission (CPSC) that a product be recalled requires skilled advocacy to navigate. Even where a company has decided that it should conduct a voluntary recall, there are key decision points and details that must be carefully negotiated.
While most other law firms encounter the CPSC infrequently, we believe that inside perspective — knowing how agency staff think, how investigations are staffed, and how recall negotiations actually unfold behind closed doors — will yield the best possible outcome in any given situation.
With over twenty years of experience working inside the CPSC, our team brings an unrivaled depth of knowledge to a CPSC recall, something that cannot be replicated by reading statutes and regulations.
Possible Outcomes of a CPSC INVESTIGATION
Evidence does not support a finding that a product presents a substantial product hazard or violates a mandatory regulation or rule.
Negotiated resolution with narrower scope and practical remedy.
A broader recall is required to address the risk and protect the public.
If resolution cannot be reached, CPSC may pursue mandatory action or issue its own unilateral safety warning to the public.
What do we do?
We advocate, using science and data, to pressure test and challenge the CPSC’s allegations and evidence where it has requested that a company initiate a product recall. In some cases, our clients may believe that a product recall is unnecessary and we help push back against the government’s claim that a product presents a substantial product hazard.
In other cases, where a recall ultimately becomes necessary, our work includes negotiating the terms of a CPSC corrective action plan, including how a recall and the risk are presented to the public. We factor in the potential for harm to your customers, crisis communications, product liability risk, the risk of class-action lawsuits, and the long-term risk to your company and your brand.
We use the full weight of our training and experience to help develop a strong record that protects your company’s rights and remedies while seeking to hold the government accountable to its obligations and responsibilities under the law.
What Can Be Negotiated in a CPSC Recall?
Hazard & Scope
We use data and science to challenge the government and, where necessary, we fight for the narrowest recall scope supported by the facts.
Remedy & Language
We negotiate the right remedy and accurate hazard language for the public notice.
Process & Compliance
We help you choose the right path for your situation, speed vs. maximum negotiation, and help negotiate the best potential compliance terms.
The CPSC INVESTIGATION Process: Step by Step
Information Triggers Reporting
The clock starts running when your company obtains information about a potential safety issue that reasonably supports the conclusion that a defect or noncompliance exists.
15(b) Report
Report to CPSC within 24 hours. If a reasonable investigation is needed, CPSC believes that it should not exceed 10 working days. Sometimes the CPSC sends you its own independent request for a 15(b) Report based on its own investigation.
Staff Review & Preliminary Determination
CPSC staff investigates and preliminarily determines whether the product presents a substantial product hazard. As needed, we push back and advocate on your behalf.
Negotiate Corrective Action Plan
If a voluntary recall is needed, we negotiate the scope, remedy, public notice language, and all program terms.
Public Recall Announcement
CPSC and your company issue the announcement with the agreed terms and language.
We help time public recall announcements to meet a company’s goals, pushing for speed to reduce injuries where needed and coordinating with a company’s internal operational needs to help ensure a successful recall.
Who We Help
Why Former CPSC Attorneys?
Neal Cohen
- Former CPSC Enforcement Attorney
- Former CPSC Small Business Ombudsman
- Lead trial attorney on the CPSC’s imported drywall investigation
- Developer, CPSC Regulatory Robot
- ASTM F15 Executive Committee
- Testified before a U.S. Senate subcommittee
Boaz Green
- Former Chief Counsel to a CPSC Commissioner
- Legal advisor on Commission review and decisions
- Rulemaking and policy experience inside the CPSC
- Practiced product safety law at Keller and Heckman
- ICPHSO & industry speaker
CPSC Recall Advocacy: Frequently Asked Questions
What triggers a CPSC recall?
In some cases, a company realizes that a product it sells does not meet a mandatory safety rule or regulation or that a product has an issue that presents a substantial risk of injury to the public. In other cases, the U.S. Consumer Product Safety Commission (CPSC) initiates its own investigation and requests that a company initiate a recall.
Under Section 15(b) of the Consumer Product Safety Act, a company has an obligation to report when it obtains information that reasonably supports the conclusion that a product fails to comply with an applicable safety rule or standard, contains a defect that could create a substantial product hazard, or creates an unreasonable risk of serious injury or death.
Most recalls begin with identifying a single serious incident of a death, serious injury or near miss event or by identifying a pattern of incidents or reports that may present a risk of harm. A robust product safety and compliance program will have a system in place to identify potential reports of concern, escalate those reports to the right people, and analyze the issue in a full, comprehensive, and timely manner. These reports may include issues identified in online reviews, customer service center calls, SaferProducts.gov reports, or warranty claims. Such issues may also arise from a supplier change or unauthorized material changes by an existing supplier.
The CPSC also learns about product concerns independently, by consumers making reports on SaferProducts.gov, retailer reports made directly to it by the largest Big Box retailers and online marketplaces in the country, CBP referrals at the port, and its own market surveillance operations. Whichever direction the concern originated from, a company will be expected to take the appropriate reporting (or recall) action. Companies should be aware that CPSC staff will eventually ask when you first had the information and not when you reached a final conclusion about it.
Is every recall voluntary?
A voluntary recall is one in which a company conducts a recall publicly in cooperation with the CPSC, usually through a negotiated corrective action plan. Nearly all recalls with the CPSC are voluntary, although some are negotiated under the threat of legal action. A mandatory recall is ordered by the Commission through a formal administrative process and is very rare.
Most recalls are resolved through negotiation, which is where having a lawyer who understands how the agency evaluates a corrective action plan makes a real difference.
Under 16 C.F.R. 1115.20(a), a corrective action plan describes the remedial action your company will voluntarily undertake. Shaping the terms in this agreement is the heart of our recall advocacy practice.
Will a recall lead to a civil penalty?
No, not automatically. The vast majority of recalls do not result in the issuance of a civil penalty or even a small fine. However, civil penalties are issued by the CPSC, most typically in cases where there has been an aggravated injury, death, or multiple fires and where a company knew, or should have known, that it had information in its possession that required it to report to the CPSC.
Therefore, it is important to make sure that companies consult with product safety counsel early to avoid significant reporting delays. Under 16 C.F.R. 1115.14(b), the Commission imputes, or ascribes, the knowledge to your company even if the company did not identify that it had the information in its possession. Ignorance is no excuse. The CPSC believes that such reportable information should have reached a senior official responsible for reporting within five days.
How long does a recall take?
Under Fast Track, the company must be ready to implement an acceptable corrective action plan, usually including a public announcement, within 20 working days of filing its Fast Track report. A standard negotiation commonly runs several months, and longer where the defect analysis is contested, the supply chain is complex, or the scope of affected units is genuinely in dispute. The announcement is not the finish line. Implementation, periodic progress reporting, and the CPSC’s evaluation of whether the corrective action actually reached consumers can extend a matter well past the date the press release goes out.
The variable you control most directly is preparation. Production records, supplier documentation, test data, and a clean incident timeline assembled before staff asks for them tend to compress the schedule. The same materials assembled reactively tend to extend it.
Can a recall be limited to certain dates or lots?
Often yes, and product recall defense usually earns its keep right here. A recall defined as every unit ever sold under a SKU costs a multiple of a recall defined by the date range, lot codes, or component supplier actually implicated. Narrowing scope is an evidentiary exercise, not an argument. It requires production records establishing when the implicated component entered and left the line, supplier change documentation, testing that isolates the failure mechanism to a defined population, and a coherent technical explanation of why units outside that population are not affected.
If a supplier changed in March, for example, the affected population may end at that changeover, and proving where that line falls is what keeps units out of the recall. CPSC staff will not narrow scope on assertion alone, and the broad definition is the one you get by default, because staff has no reason to accept anything narrower without proof. If you bring in product recall defense attorneys who worked inside the agency early enough to build that record, you often end up recalling a fraction of the units you were first asked to recall.
What is Fast Track and should we use it?
The CPSC’s Fast Track Recall Program allows you to announce and begin a voluntary recall within 20 working days of filing your Fast Track report. In exchange for that speed, the agency generally does not proceed to a preliminary determination that the product contains a defect. Fast Track is the right choice when the decision to recall is already firm, the hazard is not seriously contestable, and speed carries real commercial value. It is the wrong choice when the defect finding is arguable, when scope is unresolved, or when you have not yet seen the full incident record.
The 20 working days you spend inside Fast Track are the same 20 working days you would otherwise use to build the case for a narrower and less expensive recall. That trade is sometimes correct, but it should not be made reflexively, and not before someone who knows how staff evaluates these matters has reviewed the facts.
Will a recall always include a compliance program?
No, but the possibility should be on your radar from the start. A compliance program requirement is most commonly a component of a civil penalty settlement agreement rather than an ordinary corrective action plan. When one is included, its terms deserve as much attention as the headline dollar figure. Scope, duration, documentation and retention requirements, training obligations, internal escalation procedures, third-party audit provisions, and periodic reporting will shape your operations for years after the recall itself is closed.
Companies routinely negotiate the penalty number hard and accept the compliance program language as boilerplate. That is backwards. The dollar figure is paid once. The program is lived with. There is also a forward-looking benefit: a documented compliance program is one of the factors the CPSC weighs when assessing penalties, so building one before you need it changes the arithmetic later.
Do I need a lawyer for a CPSC recall?
Not legally, no. Product recall defense is a choice rather than a requirement, and companies handle recalls without counsel every year. Whether that works out depends less on the strength of your position than on whether you know which parts of the process are actually open to argument. CPSC staff will tell you what they believe the product’s hazard is, what scope they expect, and what remedy they want. Nothing in that conversation announces which of those items you can push back on, what evidence would move them, or how the way you describe your reporting timeline today will read in a civil penalty analysis two years from now.
Those are learned judgments, and CPSC staff has no obligation to teach them to you. Our product recall defense attorneys both worked inside the CPSC, one in enforcement and the Office of Compliance, one as Chief Counsel to a Commissioner, and that experience tends to change which options are actually on the table.
Can you help if we already agreed to a recall?
Yes. Product recall defense does not stop when the corrective action plan is signed. Scope questions resurface as production records are reviewed, remedies get modified when consumer response comes in below expectations, progress reporting obligations continue for months, and the agency’s effectiveness review can prompt a demand for supplemental notice. Separately, the reporting timeline you established during the recall is the timeline any subsequent civil penalty analysis will be built on, and how that record is presented still matters.
If you handled the recall without CPSC-specific counsel, the useful first step is a review of what has already been submitted so that everything going forward is consistent with it and any correction is made deliberately rather than discovered by staff. Neal Cohen Law regularly enters matters after a corrective action plan is signed; coming in mid-matter is common, and it is never too late to seek legal guidance.
What if CPSC insists on a mandatory recall?
Declining a recall the agency believes is warranted does not preserve the status quo. Before the Commission reaches an administrative proceeding under Sections 15(c) and 15(d), it has faster options. It can issue a unilateral product safety warning telling consumers to stop using the product, which reaches the same retailers, marketplaces, insurers, and trade press a recall notice would without any of the negotiated hazard language a corrective action plan would have contained. Marketplaces and major retailers act on those warnings the same way they act on recalls.
Refusal is occasionally the correct strategy, and there are matters where the evidence genuinely does not support a substantial product hazard finding and the right answer is to say so and defend it. That decision requires product recall defense attorneys who can accurately predict what the agency does next, because the cost of guessing wrong is a unilateral announcement written entirely by someone else.
What happens after the recall is announced?
The public announcement is the midpoint, not the end. You implement the remedy and file periodic progress reports with the CPSC documenting units corrected, consumer response rates, and remaining inventory in the distribution channel. Consumer response rates for many recalls are low, and CPSC staff’s attention or interest in the matter does not stop at the press release. If the agency concludes the corrective action did not reach enough of the affected population, it can press for supplemental notice, expanded outreach, or additional remedies.
Retailers and marketplaces have their own reactions to manage, including return authorizations, chargebacks, and listing reinstatement, as they often face enforcement and CPSC scrutiny at the same time.
Finally, the complete record developed during the recall, particularly the timeline between when you first held reportable information and when you reported, becomes the factual foundation for any civil penalty exposure. Product recall defense does not end at the announcement, and neither should your representation.
Facing a CPSC Recall?