Total Recall Act

I 116TH CONGRESS 1ST SESSION H. R. 5097 To require greater notification to the public regarding product recalls, and for other purposes. IN THE HOUSE OF REPRESENTATIVES NOVEMBER 14, 2019 Ms. MENG (for herself, Mr. HASTINGS, Ms. NORTON, Mr. NADLER, Ms. TLAIB, Mr. CISNEROS, and Ms. ESCOBAR) introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To require greater notification to the public regarding product recalls, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; FINDINGS. 3 This Act may be cited as the ‘‘Total Recall Act’’. 4 SEC. 2. FINDINGS. 5 Congress finds the following: 6 (1) The safety of the consumers in the United 7 States relies on the effectiveness of a company’s out- 8 reach. 9 VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS 2 •HR 5097 IH (2) There are at least 400 products recalled 1 each year by the Consumer Product Safety Commis- 2 sion. 3 (3) According to the Consumer Product Safety 4 Commission, the average response rate of consumers 5 for most product recalls is between 4 and 18 per- 6 cent. 7 SEC. 3. INCREASED NOTIFICATION ABOUT RECALLS BY 8 COMPANIES PARTICIPATING IN RECALLS. 9 (a) MANDATING PUBLIC NOTICE AND INCLUDING 10 IMPORTERS.—Section 15(d)(1) of the Consumer Product 11 Safety Act (15 U.S.C. 2064(d)(1)) is amended— 12 (1) by striking ‘‘may order’’ and inserting 13 ‘‘shall order’’; 14 (2) by striking ‘‘any distributor’’ and inserting 15 ‘‘any distributor, importer,’’; and 16 (3) by striking ‘‘by subsection (c) and’’ and in- 17 serting the following: ‘‘by subsection (c), and may 18 order the manufacturer or any distributor, importer, 19 or retailer of such product’’. 20 (b) NOTIFICATION REQUIREMENTS.— 21 (1) REQUIREMENTS.—Section 15(d) of such 22 Act (15 U.S.C. 2064(d)) is further amended— 23 (A) by redesignating paragraph (3) as 24 paragraph (4); 25 VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS 3 •HR 5097 IH (B) by inserting after paragraph (2) the 1 following new paragraph: 2 ‘‘(3) The Commission may not approve an action plan 3 submitted pursuant to paragraph (2) unless such action 4 plan provides that the person submitting the action plan 5 has performed or will perform the following: 6 ‘‘(A) Not later than the expiration of the 365- 7 day period starting on the date the Commission ap- 8 proves the action plan, spending on advertising the 9 recall of the product subject to the order, using 10 methods including those determined by the Commis- 11 sion for conducting recalls, an amount equal to the 12 greater of— 13 ‘‘(i)(I) at least 25 percent of the dollar 14 amount spent by such person in the 12-month 15 period during which such person spent the 16 greatest amount on traditional marketing (not 17 including marketing through the Internet) of 18 the product; plus 19 ‘‘(II) at least the total dollar amount spent 20 by such person marketing the product through 21 the Internet; or 22 ‘‘(ii) if the product was part of a product 23 bundle, at least 5 percent of the dollar amount 24 spent by such person marketing the subscrip- 25 VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS 4 •HR 5097 IH tion service under which the product bundle was 1 sold. 2 ‘‘(B) Submitting to the Commission such evi- 3 dence the Commission determines adequate to show 4 that such person has complied with the requirements 5 in subparagraph (A). 6 ‘‘(C) Posting in a clear and conspicuous man- 7 ner the notice required by paragraph (1) on any 8 Internet website maintained by such person until the 9 participation rate in the recall that is the subject of 10 the notice is at least 95 percent. 11 ‘‘(D) Posting to each social media account 12 maintained by such person the notice required by 13 paragraph (1), or a description of such notice and 14 a link to such notice, at least 5 times each calendar 15 month for the 12 months after the Commission has 16 approved the action plan.’’; and 17 (C) by adding at the end the following new 18 paragraph: 19 ‘‘(5) In this subsection, the term ‘product bundle’ 20 means a single product comprised of two or more products 21 that is sold to consumers under a subscription service that 22 does not permit the consumer to select every product com- 23 prising the single product.’’. 24 VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS 5 •HR 5097 IH (2) TOLLING OF EXPENDITURES.—Paragraph 1 (4) of section 15(d) of such Act (15 U.S.C. 2064(d)) 2 (as redesignated by section 3(b)(1)(A) of this Act) 3 is amended by adding at the end the following new 4 subparagraph: 5 ‘‘(D) If the Commission revokes its approval of the 6 action plan, the running of the 365-day period in para- 7 graph (3)(A) shall be tolled. If the Commission approves 8 an alternative action plan to the action plan for which ap- 9 proval was revoked, the time period for completing the ex- 10 penditures as required by paragraph (3)(A) for such alter- 11 native action plan shall not exceed the number of days 12 that did not elapse under such 365-day period.’’. 13 (c) NOTIFICATION REQUIREMENTS APPLY TO SET- 14 TLEMENT OFFERS.—Section 15(f) of such Act (15 U.S.C. 15 2064(f)) is amended— 16 (1) in paragraph (1)— 17 (A) by striking ‘‘Any settlement’’ and in- 18 serting ‘‘Subject to paragraph (2), any settle- 19 ment’’; and 20 (B) by striking ‘‘unless the settlement 21 offer is clearly frivolous or duplicative of offers 22 previously made’’; 23 (2) by redesignating paragraph (2) as para- 24 graph (4); and 25 VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS 6 •HR 5097 IH (3) by inserting after paragraph (1) the fol- 1 lowing new paragraphs: 2 ‘‘(2) A settlement offer described in paragraph (1) 3 may not be transmitted if such offer— 4 ‘‘(A) is clearly frivolous; 5 ‘‘(B) is duplicative of offers previously made; or 6 ‘‘(C) does not obligate the manufacturer, dis- 7 tributor, importer, or retailer that is a party to such 8 offer to perform the actions in subparagraphs (A) 9 and (B) of subsection (k)(1). 10 ‘‘(3) At the outset of a hearing under this subsection, 11 the Commission shall recommend that a manufacturer, 12 distributor, importer, or retailer that is or becomes a party 13 to a settlement offer perform the actions described in sub- 14 section (d)(3)(A).’’. 15 (d) VOLUNTARY CORRECTIVE ACTION NOTIFICA- 16 TION.—Section 15 of such Act (15 U.S.C. 2064) is 17 amended by adding at the end the following new sub- 18 section: 19 ‘‘(k) VOLUNTARY CORRECTIVE ACTION.— 20 ‘‘(1) REQUIREMENTS.—Any voluntary correc- 21 tive action taken by a manufacturer, distributor, im- 22 porter, or retailer in consultation with the Commis- 23 sion relating to a product described in subsection (b) 24 may be determined by the Commission as a suffi- 25 VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS 7 •HR 5097 IH cient remedial measure only if, as part of such vol- 1 untary corrective action— 2 ‘‘(A) such manufacturer, distributor, im- 3 porter, or retailer provides the notice required 4 by subsection (c); and 5 ‘‘(B) such notice is posted in the manner 6 required by subparagraphs (C) and (D) of sub- 7 section (d)(3). 8 ‘‘(2) RECOMMENDATIONS.—When a manufac- 9 turer, distributor, importer, or retailer informs the 10 Commission that it will take voluntary corrective ac- 11 tion in consultation with the Commission, the Com- 12 mission shall recommend that such manufacturer, 13 distributor, importer, or retailer perform the actions 14 described in subsection (d)(3)(A) as part of the vol- 15 untary corrective action.’’. 16 SEC. 4. APPLICABILITY. 17 (a) ACTION PLANS AND SETTLEMENT OFFERS.— 18 The amendments made by subsections (a) through (c) of 19 section 2 shall only apply to action plans and settlement 20 offers resulting from hearings under 15(d) of the Con- 21 sumer Product Safety Act (15 U.S.C. 2064(d)) initiated 22 on or after the date of the enactment of this Act. 23 (b) VOLUNTARY CORRECTIVE ACTION.—The amend- 24 ments made by section 2(d) shall only apply to voluntary 25 VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS 8 •HR 5097 IH corrective actions about which the Consumer Product 1 Safety Commission is initially informed on or after the 2 date of the enactment of this Act. 3 SEC. 5. RECALL PARTICIPATION RATES REPORTED TO 4 CONGRESS. 5 (a) REPORT TO CONGRESS.—Section 27(j) of the 6 Consumer Product Safety Act (15 U.S.C. 2076(j)) is 7 amended— 8 (1) in the matter preceding paragraph (1), by 9 inserting after ‘‘and the Congress’’ the following: ‘‘, 10 and shall make publicly available on its website,’’; 11 (2) in paragraph (12)(F), by striking ‘‘and’’ at 12 the end; 13 (3) by redesignating paragraph (13) as para- 14 graph (14); and 15 (4) by inserting after paragraph (12) the fol- 16 lowing new paragraph: 17 ‘‘(13) for each recall initiated or ongoing during 18 the reporting period that is pursuant to an order 19 under section 15(d), a settlement agreement, or a 20 voluntary corrective action taken in consultation 21 with the Commission— 22 ‘‘(A) the number of products subject to the 23 recall sold; 24 VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS 9 •HR 5097 IH ‘‘(B) the number of such products for 1 which a consumer has received a remedy; 2 ‘‘(C) the number of consumers to whom a 3 direct notification has been made; and 4 ‘‘(D) the number of incidences of injuries 5 resulting from a product subject to the recall 6 occurring after the initiation of the recall that 7 are reported to the Commission; and’’. 8 (b) EFFECTIVE DATE.—The amendments made by 9 this section shall apply on the first day of the first fiscal 10 year which begins after the date of the enactment of this 11 Act. 12 SEC. 6. DIRECT NOTIFICATION DEFINED. 13 Section 3(a) of the Consumer Product Safety Act (15 14 U.S.C. 2052(a)) is amended— 15 (1) by redesignating paragraphs (7) through 16 (17) as paragraphs (8) through (18), respectively; 17 and 18 (2) by inserting after paragraph (6) the fol- 19 lowing new paragraph: 20 ‘‘(7) DIRECT NOTIFICATION.—The term ‘direct 21 notification’ means notification by phone, email, or 22 mail.’’. 23 Æ VerDate Sep 11 2014 07:34 Nov 22, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H5097.IH H5097 kjohnson on DSK79L0C42 with BILLS