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In January, the U.S. Consumer Product Safety Commission approved a final rule on guidelines for mandatory recall notices. 75 Fed. Reg. 3355 (Jan. 21, 2010) (to be codified at 16 C.F.R. pt. 1115). This rule will apply to all mandatory recalls as of February 22, 2010, regardless of when a product subject to a recall was manufactured.

A mandatory product recall is a recall that is required by either the Consumer Product Safety Commission under 15 U.S.C. 2064 (c) or (d), or a U.S. District Court under 15 U.S.C. 2061. The Commission may require a mandatory recall of an item to protect the public from a substantial product hazard or an imminently hazardous consumer product. In addition, the Commission may file an action in a U.S. District Court when it determines that a consumer product is imminently hazardous. The court, after consideration of the evidence before it, may then issue a mandatory recall.

The Commission has established certain guidelines for mandatory recall notices. A recall notice must provide sufficient information and motivation for consumers to identify the product, its potential hazards and to take the stated action. In addition, a recall notice must clearly and concisely state the potential for injury or death. The language of a recall notice should be readily understood by targeted consumers, with minimal technical or legal terminology. It should also be targeted and tailored to the specific product and circumstances, considering the way the product was marketed and advertised. At least two recall notice forms listed in the rule must be used. However, a direct recall notice should be used when possible. The Commission or U.S. District Court may require a firm to issue a recall notice in languages in addition to English.

The Commission has also provided notice content requirements. Every notice must include:

  • the word "recall" in both the heading and the text;
  • the date of its release, issuance, posting, or publication;
  • a clear and concise description of the product that will allow consumers to determine whether they have been exposed to the product, including, where applicable: the product's name (including informal and abbreviated names), the intended target population, the product's colors and sizes, its model numbers or other tracking numbers and their location on the product, the identification and location of product tags, labels, and other identifying parts, and photographs of the product;
  • a clear and concise description of the action that a firm is taking regarding the product;
  • an approximate number of the product units covered by the recall;
  • a clear and concise description of the product's actual or potential hazards, including the type of product defect as well as the type of risk the product creates;
  • the identification of the recalling firm including both the legal name and trade name, the location of the firm's headquarters, and whether the firm is a manufacturer, retailer, or distributor;
  • the identification of each manufacturer and the country of manufacture;
  • the identification of significant retailers;
  • the region where the product is sold — if appropriate;
  • the dates of manufacture and sale;
  • the approximate retail price or price range of the product;
  • a summary description of all incidents, injuries, and deaths associated with the product, the number of incidents, injuries, and deaths, the ages of all persons injured and killed, and relevant dates;
  • a clear and concise statement of the remedy available to the consumer, the specific actions a consumer must take to obtain that remedy, and all specific information that a consumer needs to obtain each remedy; and
  • any other information that the Commission or U.S. District Court requires.
The final determination of the form and content of a recall notice will be made by the Commission or the U.S. District Court that required the notice. The Commission must approve all aspects of any notice that it required before any information is disseminated.

These rules do not establish any requirements for voluntary recall notices that arise from corrective action settlement agreements with the Commission. Though these rules may provide a general guide for information to include in voluntary recall notices, each situation is unique. Recall notices must be tailored to the specific product and circumstances of a recall, whether mandatory or voluntary. 75 Fed. Reg. 3356.

It is quite clear that the import of the guidelines is to provide the consumers receiving the recall notice with sufficient information so as to alert the consumer to the exigencies of the conditions created by the product subject to recall with emphasis on the gravity of the potential harm associated with its use and how the consumer can remedy the situation by returning the product. Consumers must be able to easily access and comprehend the information in these recall notices.  Manufacturers of consumer products are urged to familiarize themselves with respect to the guidelines, so that they are adequately prepared for a mandatory or voluntary recall. Although each recall is different, the guidelines provide a comprehensive standard for recall notices.