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February 18, 2016 Practice Points

CPSC Regulatory Robot: At Your Service or At Your Own Risk?

By Josh Johanningmeier

On January 7, 2016, the U.S. Consumer Product Safety Commission activated its "Regulatory Robot" on the Commission's website. Touted by the Commission as a tool for small businesses manufacturing or importing products for children and other consumers, the robot offers guidance on safety requirements for particular products. Consumer product practitioners and businesses alike should be aware of the robot, take it for a spin, and also appreciate its limitations. Businesses are likely to find out it is a good idea to call their lawyer; lawyers are likely to find it a useful issue-spotting tool.

How the Regulatory Robot Works
The robot relies on user input to identify the type of consumer product, its relevant characteristics, its intended users and usage patterns, and then generates a report detailing relevant legal requirements. The process requires more than mere familiarity with the product, however, and a lack of understanding of consumer product laws and regulations may well derail the tool's utility for many users. The CPSC estimates it should take 10–15 minutes to use the robot. That estimate would require immediate knowledge of the correct answer for each question, based on an understanding of relevant definitions, regulations and statutes—without that knowledge, assume it will take far longer.

After agreeing to the Commission's Terms of Use and disclaimer (discussed below), users are guided through a series of product-specific questions. It is evident from the outset—when the user must first know whether the product is a "consumer product" as defined by the Consumer Product Safety Act—that the robot is not a simple tool. Indeed, that threshold question offers a seemingly helpful click-through to a pop-up box entitled "what is a consumer product," but unfortunately omits the CPSA definition of consumer product and focuses instead on what is not a consumer product.

The robot's questions get more complex, as "children's product" and other refinements of the consumer product universe are explored. Pop-up boxes are available throughout (some more useful than others), and nearly all include links to relevant rules, guidance, and FAQs. The robot's queries continue until eventually a report is issued that provides a summary of information provided by the business, hyperlinks to relevant guidelines, regulations, and other authority. By way of example, a hypothetical children's product runs through the robot using responses expected to identify a lengthy list of compliance requirements (e.g., a 6–8 year-old age-graded game, including a latex balloon, surface coatings, etc.) generated a nine page report.

Can Businesses Rely on the Robot?
Maybe, and no. First, the "maybe." For regulatory compliance purposes, businesses utilizing the CPSC Regulatory Robot must understand that the report and guidance received from the robot is only as good as the information they provide. If correct answers are provided at every level, a report will be generated that, if understood and followed, may lead to compliance. Compliance is nonnegotiable, not just because the CPSC is more aggressive than ever, but also because the stakes are high when it comes to consumer products. A business with any doubt that it is putting correct information into the robot should confer with experienced counsel for assistance.

Second, the "no." Businesses cannot rely on the CPSC Regulatory Robot's report to excuse non-compliance. The terms and conditions of use include eight bullet-pointed disclaimers and warnings which make it clear that manufacturers and importers are ultimately responsible for compliance, that the robot is not providing legal advice, and "no reports or other information generated or conveyed by the Regulatory Robot…are binding on CPSC or CPSC staff, nor do any such reports or information have any legal effect." For good measure, a summary disclaimer is also included and must be acknowledged.

Should I Use the Robot?
CPSC's Regulatory Robot is a useful tool—treated like a compliance flowchart (or perhaps the legal version of "Choose Your Own Adventure©"), a business or lawyer armed with detailed product information and an ability to interpret the relevant statutes and regulations to ensure correct answers are provided to the robot can generate a helpful compliance checklist. But is it appropriate for—as the robot's welcome message says—"a small business starting out"? That will vary greatly depending on the business itself, but the necessary complexity of the robot's questions, coupled with the minefield of non-compliance leave so little room for error that self-help may not be the right approach.

Keywords: products liability, litigation, Consumer Product Safety Commission, CPSC, Consumer Product Safety Act, CPSA, Consumer Product Safety Improvement Act, CPSIA, consumer product, "regulatory robot"

Josh Johanningmeier is with Godfrey & Kahn, S.C., in Madison, Wisconsin.

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