On February 9, 2022, the Consumer Product Safety Commission (CPSC) filed an administrative complaint against manufacturer Leachco, Inc. (Leachco) to compel the company to recall infant lounger products, thus continuing the agency’s trend of more aggressive enforcement over the past year. This is the third recall lawsuit filed by CPSC since July and marks the first recall lawsuit filed under the leadership of the new CPSC Chair, Alexander Hoehn-Saric. Just a few weeks before filing this latest complaint, CPSC had issued a safety warning on January 20, 2022, urging consumers to stop using Leachco’s Podster products due to the risk of infant suffocation.

The Complaint alleges that the Podster, Podster Plush, Bummzie, and Podster Playtime infant loungers (Podsters) are defective and present a substantial product hazard. According to the Complaint, it is allegedly foreseeable that a caregiver, contrary to product warnings and instructions, will use the Podster for infant sleep and an unsupervised infant may roll or move into a position on the Podster where the infant’s nose and mouth may become obstructed by either the Podster or another object, such as soft bedding.

While the term “foreseeable” is not generally defined in the CPSC regulations concerning substantial product hazard reports, foreseeable misuse of a product is a consideration that the Commission and staff may use in determining whether a product is defective and whether the product presents a substantial risk of injury. Specifically, under 16 C.F.R. § 1115.12(g)(1)(iii), a risk is considered “severe” if “the injury which might occur is serious and/or if the injury is likely to occur.” The regulations further provide: “In considering the likelihood of any injury the Commission and the staff will consider the number of injuries reported to have occurred, the intended or reasonably foreseeable use or misuse of the product, and the population group exposed to the product (e.g., children, elderly, handicapped).”

The Complaint alleges that the Podster’s defects led to the suffocation deaths of two infants, ages 4 months old and 17 days old. More specifically, the Complaint alleges that the 4-month old infant was placed face-up in the product and later found face-down, and that the 17-day old infant was placed face-up on the Podster in an adult bed with two caregivers and thereafter “moved off the Podster onto the adult bed after one of the caregivers rolled onto the Podster and infant.”

Notably, the Complaint acknowledges that the Podster “is not and has never been advertised . . . as a sleep product.” Further, the Podster contains warnings that the product should never be used for sleep, should always be used under adult supervision, and should not be used with an infant who can roll over; if these warnings are ignored, the Podster advises that use of the product could result in serious injury or death. Nevertheless, the Complaint alleges that because it is foreseeable that caregivers will use the Podsters without supervision and for infant sleep, the Podsters present a substantial product hazard. As relief, the Complaint seeks, among other things, that Leachco provide public notice of the defect; provide reimbursement to retailers, distributors, and third parties for expenses in carrying out the recall; and provide a refund to consumers.

In response to CPSC’s January 20 safety warning, Leachco released a statement confirming its Podsters are safe for infants. The statement emphasized that the Podsters are to be used with an awake infant placed on its back and under caregiver supervisions. Leachco claims that instead of telling consumers to stop using the Podsters altogether, CPSC should instead be explaining to consumers that “no lounger should be used in a crib or bed and no lounger is safe for unsupervised sleep.” The Juvenile Products Manufacturers Association (JPMA) and First Candle, an organization committed to ending Sudden Infant Death Syndrome (“SIDS”), have released statements in support of Leachco’s position.

The Complaint was filed following a 3-1 vote by the Commission. Commissioner Dana Baiocco voted to take other action and indicated that she did not believe the Commission had appropriate data to support filing the Complaint. Commissioner Richard Trumka Jr. issued a warning to other companies that may find themselves in a similar position to Leachco: “Today’s suit should be a signal that this Commission is serious about protecting consumers. When companies refuse to recall products deemed deadly by CPSC staff, they should expect an administrative complaint to quickly follow.”

CPSC’s actions here, both in issuing a warning statement about the Podsters and then in authorizing the filing of a Complaint against Leachco, are a reminder of CPSC’s trend of aggressive enforcement. The answer is not that any and all CPSC demands must be met, but rather, that it is important to understand and plan for the potential consequences.