What Every Product Safety Attorney Needs to Know

1. What Every Product Safety Attorney Needs to Know District of Columbia Bar CLE April 11, 2005 Edward Heiden Heiden Associates, Inc.

2. Major Topics Covered • Databases ( CPSC and other) • Comparative Risk • Product Recalls and Recall Effectiveness • Case Studies

3. Data Bases Used by CPSC • NEISS (National Electronic Injury Surveillance System) • In-Depth Investigations (IDIs) • Injury and Potential Incidents File • Death Certificate File (DTHS) • NFIRS

4. National Electronic Injury Surveillance System (NEISS) • Statistically-weighted sample of 100 hospital emergency rooms • National estimates of emergency room visits for injuries associated with (not caused) by consumer products/recreational activities • Available 1980-2005 • Major sample revisions in 1990,1997,1999

5. In-Depth Investigations (INDP) • Non-statistical reports on investigations of incidents • Individual case reports – no national estimate • Details of injury, demographics, extended incident description • Primary and secondary product involved

6. Injury and Potential Incidents File (IPII) • News clips, complaints, MECAP reports, referrals • Non-statistical summaries • New source of data: retailer reporting (Walmart)

7. Death Certificate File (DTHS) • Info from medical examiners on fatalities related to consumer products • Overrated as a source • Acknowledged to be incomplete

8. NFIRS • US Fire Administration • National network of participating fire departments • Individual case records of fire incidents

9. Other Data Sources • National Vital Statistics System (NVSS) • Occupational injuries and illnesses (BLS) • Fatality Analysis Reporting System (FARS) • NHTSA recalls • Recreational Boating

10. Injury Estimates • Sample change effect in injury estimates • Time-trend conclusions: sample differences affect what conclusions can be drawn • Data analysis Amusement Rides ATVs

11. Comparative Risk • Sec 2 (b) of CPSA: “Purpose is to assist consumers in evaluating the comparative safety of products.” • ATV memo: adjust for use patterns to get more complete picture of “risk”. • Importance of exposure to hazard • Some samples of comparative risk data

12. Sample Consumer Notice • Not a “One-Notice Fits All” • Identify program as a recall • Incident and injury info • State defect and hazard • Toll-free number • How to obtain remedy • Convenience

13. Ruger “Blackhawk” Recall Notice • Not a recall – “ a unique new improvement” • No incident or injury information • What is the defect ? • Blames user for the problem • No toll-free number • Consumer has to pay shipping costs

14. Easy-Bake Mixes Recall Notice • Found on Toys R Us website • Manufacturers remedy information states “should not be used if they have allergies.” • FDA release states “run the risk of serious or life-threatening allergic reaction”

15. Recall Effectiveness Studies • 1978 CPSC Study • 1980 CPSC Study • Murphy-Rubin Study “Determinants of Recall Success Rates” (1983) • Heiden Associates (2003)

16. 2003 CPSC Study on Recall Effectiveness • A large number of steps are required before compliance with recall notice • High degree of mobility of people and products • Overcoming “information overload”

17. 2003 CPSC Study on Recall Effectiveness • Role of color, lettering, signal words on levels of perceived risk • Inappropriate timing • Selective screening and filtering • Role of familiarity and experience • What specific action is required ?

18. 2003 CPSC Study on Recall Effectiveness • Memory deterioration • Traffic safety poster study • Balancing of risks involved with product • Risk perceptions precede the receipt of recall message • Hazard probability

19. 2003 CPSC Study on Recall Effectiveness • Adults overestimate children’s abilities and underestimate risks to children in general • Acceptable risk • Consumers highly sensitive to costs of participating in recall

20. Case Study: Ames True Temper Wheelbarrow • 647,000 units manufactured 1993-2000 • Rims explode when tires inflated –severity • Recalled April 2002 • Response limitations: • In use average 4 years • Small # incidents • Inconvenience of checking (outside) • Remedy: consumer has to request and install

21. Case Study: Ames True Temper Wheelbarrow • More durable notices – expand store posters to every retail outlet where sold. Publicize heavily at store level • Personalized letters to gardening magazines and gardening newspapers • Clickable banner ads • Incentive • Conclusion: Specialization increased returns beyond expectations

22. Case Study: All Terrain Vehicles • March 2005 Hearings on risks associated with ATVs by children under 16. • ATV injury and fatality risk stable on a per-vehicle in use basis. • ATV risks comparable to risks associated with other recreational activities – look at number of injuries per 100,000 participants

23. Case Study: All Terrain Vehicles • CPSC data shows 92% ATV accidents/fatalities involve at least one warned against behavior • Preliminary analysis suggests state laws can have a meaningful effect in reducing ATV injuries and fatalities involving children.