Category: Consumer Products

Automatic Gates’ Deadly Legacy

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Last month, the automated gate industry implemented a new voluntary standard ostensibly designed to decrease the chances that individuals will become entrapped, injured or killed by a motorized gate. Will it matter? Automatic gates have been crushing people with regularity since communities and businesses began installing them in the early 1970s, despite occasional education campaigns, amended standards and high recognition among industry and regulators about the safety hazards.

“There have been multiple cases where the gates don’t reverse even though they have a reversing mechanism,” says attorney Bryan Crews, who represents the family of a 12-year-old Florida girl who suffered permanent brain injuries after a 2013 incident. “It’s a hidden trap waiting to spring on unsuspecting children and adults. With more and more gated communities and office buildings you are going to see increasing reports of injuries and deaths.”

A Paucity of Data

On January 23, 2013, Johanna Lugo, was awaiting the school bus at the entrance to Placid Lake Townhomes, a gated community in Sanford, Florida, when she somehow became entrapped between the bottom of the motorized gate and the curb at the entrance to the subdivision. Lugo was discovered at about 9 a.m. by a neighbor who was returning to the complex. As she approached the gate, she noticed that they were open, and Lugo unconscious lying under the partially opened left portion of the entry gate, lying on her back, facing upward and having trouble breathing. The neighbor and another woman were unable to physically push the gate off her body; Lugo was eventually freed by a jack that lifted the gate off of its hinges. The loss of oxygen caused ischemic, hypoxic brain damage and other severe injuries that require constant medical care.

Other victims did not get help in time, and succumbed to their injuries. Among the recent deaths:

In July, a 63-year-old woman in Oakland County, Michigan, was crushed to death by an automatic gate at the tool and die shop where she worked. The woman was found pinned by an employee, with her running vehicle parked nearby. Officials said that the woman had reached through the gate to open it with her keys, and became trapped between the gate and the electrical box. 

In May 2015, 8-year-old Matthew Cattlet died in North Las Vegas after getting stuck in an electronic gate. Police said that the boy was crawling through a rectangular hole, when his friend accidentally triggered the gate mechanism to open.

In July 2014, Crevan O’Ciellaigh, 28, died after he was crushed by an automatic gate at the Montecito Condominiums, in West Palm Beach, Florida. According to police reports, O’Ciellaigh was found on the ground, pinned by the northwest entrance/exit gate, which was slightly opened. O’Ciellaigh was sitting up facing east and the gate was on top of his back.

But it is difficult to get current data on the scope of the problem. The only official fatality count comes from the U.S. Consumer Product Safety Commission, which in 2001 noted that since 1985, it had identified 32 deaths related to automatic gates, including 20 deaths to children. Further, from 1990 to 2000, the CPSC estimated that nearly 25,000 people had been involved in automatic gate-related injuries, including 9,000 children under 15 years old. Each year, over 2,000 people, including 800 children, were treated in hospital emergency rooms for injuries to the head, neck, arm, or hand, the CPSC reported.

Since then, there has been little data collection, other than occasional news stories. In 2012, Thomas A. DeSilvia, of the Chamberlain Group, which bills itself as “the world's largest manufacturer of residential and commercial door operators, access control products and gate operators,” gave a presentation noting that in the mid-2000s there were five fatalities. DeSilvia also noted that while the quality of automatic gates was improving, the number of crushing incidents was rising, as were the number of civil actions against gate installers and manufacturers.

Manufacturers Know They Have an Ongoing Problem

The industry, represented by the Door & Access Systems Manufacturers Association (DASMA), is keenly aware of its liability. The industry’s main trade magazine Doors and Access Systems, has repeated references to risk exposure, litigation, and the possibility of injury and death. The publication has featured articles such as How to Survive a Deposition, written by DASMA’s legal counsel Naomi Angel, and How to Respond to Customer Injury, which advises: “Don’t admit fault or liability. That can only be determined after an investigation of the facts and laws.”

An article about certifying installers notes: “Ignorance of the standards is not a viable excuse in a court of law. Failure to understand and apply these standards can result in an unsafe gate system and costly liability for your company.” 

In an article about dealers’ need to understand the standards, DASMA President Rick Sedivy acknowledges: “Many gate operator dealers are not intimately familiar with these standards. He worries that dealers wrongfully believe their minimal role in installation relieves them of code compliance liability. “Dealers should feel an obligation to the ultimate user,” Sedivy says. "In addition to helping dealers avoid litigation, meeting safety standards is good business.” 

Finally, an article about the impact of standards published in 2000 featured the thoughts of three gate company owners, including Janice Mucera of North East Gate Operator Supply, Huntington Station, N.Y., who noted:

In 1989, when I began in this business, most “safety” devices focused on vehicular protection; the human factor and photo beams were seldom an issue. We then often sold a complete automation package that gave the client a better gate system and gave the 
installers an opportunity to offer more options and thus increase profits. As the years passed, I read and heard of gate operator incidents that unfortunately resulted in injuries and even deaths. This revelation was unsettling. Liability should be a major concern for all businesses. I knew that the “complete package” approach would continue to be the best way to limit my clients’ and my liability exposure. 

Despite this awareness of safety obligations and legal risks, testifying expert Dr. Stephen Wexler, who has worked with plaintiffs and defendants observed that safety is not getting enough attention. According to a 2007 Door & Access Systems article, Wexler, a construction engineer, who “has worked on 200 trials, has given more than 500 depositions, and has been retained and consulted for thousands of cases,” said: 

“In the automated gate cases I’ve worked on, it’s particularly disheartening when the safety technology is available, but it’s not being used…I’ve spoken with several people in the gate operator industry who are trying very hard to add safety to these installations,” he says. “But from my perspective, I don’t see safety information being disseminated.” 

“Today’s gate operator manufacturers provide a lot of advanced safety technology,” he adds, “but that technology is not well understood or communicated.”

Ineffective Voluntary Standards

There are no federal standards governing the manufacture, design or installation on automatic gates, only voluntary standards released by Underwriters Laboratory (UL) and ASTM, and written in conjunction with industry groups. 

UL 325 was first established in 1973, focusing on the electric operation of garage doors. After an accumulation of garage door fatalities — the CPSC noted 54 deaths and 37 serious injuries of children 15 between 1982 and 1992— the Consumer Product Safety Improvement Act of 1990 required that all residential garage door openers produced after Jan. 1, 1993 meet new entrapment-protection requirements in the third edition of UL 325.

In 1993, this law and the development and adoption of photo-eye technology and reversing mechanisms led the gate operator industry, with monitoring by the CPSC, to begin writing provisions for electric gate operators to amend UL 325. By 1998, UL determined that a separate standard should be created for the vehicular gate itself, and the DASMA, the American Fence Association, and the National Ornamental & Miscellaneous Metals Association formed a committee to write ASTM F2200.

In March 2000, UL adopted the new UL325 standard governing gate operators and some other types of operators. The standard included entrapment protection and other safety related requirements. “The new provisions were primarily intended to improve the ability of an automated vehicular gate system to sense and protect against an individual becoming entrapped by a moving gate.” 

The standards for residential and public vehicular gates require two separate and different entrapment sensing devices, such as a current sensing or zero-speed sensing device and a non-contact photoelectric sensor, an edge device or an actuating device requiring continuous pressure to maintain opening or closing motion of the gate. 

Starting in January 2016, a new version of UL 325 requires gate operators to “have a minimum of two independent means of entrapment protection where the risk of entrapment or obstruction exists. A manufacturer can use two inherent-type systems, two external-type systems, or an inherent and an external system to meet the requirement. However, the same type of device cannot be used for both means of protection.”  The new edition also requires that external non-contact sensors or contact sensors used for entrapment protection must be monitored once every cycle for the correct connection to the operator and the correct operation of the sensor. “If the device is not present, not functioning, or is shorted, then the gate operator can only be operated by constant pressure on the control device. Portable wireless controls will not function in this case.” In addition, “manufacturers are required to provide instructions for the placement of external devices, but they give only examples of suggested entrapment protection in their installation manuals. If the installer identifies a risk of entrapment or obstruction, at least two independent means of entrapment protection are required.”

Scott Wolfson, a spokesperson for the CPSC, which regulates residential gates, says the agency “intends to renew an education campaign that the CPSC did 10 years ago, to provide more and new information to the public and to property managers of communities that have automatic gates about the risks and the need to adhere to the UL standard.”

Automatic Gates Also Beset by Design Flaws

Crews, of Crews & Pesquera, located in Orlando, Florida doubts that a tougher standard or an education campaign will stem the tide of injuries and deaths because it won’t affect existing gate operators installed all over the U.S. 

He says that his investigation of the Chamberlain Elite CSW200UL Vehicular Swing Gate Operator, a 2002 model that is still offered for sale today, suffered from a design defect. According to a complaint that Crews filed the operator governing the 9.5-foot by 6.5-foot, 350 pound-gates was beset by numerous deficiencies, such as: the operator failed to have a built-in rotary encoder or motion control sensor to detect obstructions upon opening; failed to have an automated entrapment sensor; and failed to have a reversing mechanism that could detect the load produced by Lugo’s prone body. In addition, the lawsuit asserts, the emergency release lever was essentially useless in an emergency because it was secured under a cover, which was fastened with a bolt screw, requiring a tool to remove it; nor did it have an emergency stop button. And, the operator was designed so that the safety features could be overridden or over adjusted by service and maintenance workers so that the gate would not engage the clutch or other safety devices when opening to the full open or near open position.

Crews said that his experts found that where the gate was obstructed had a significant effect on the operation of the reversing mechanism. If the gate entraps a person at its mid-point, as occurred in the Lugo incident, instead of at its end, much more resistance is required to trip the reversing mechanism. His testing found that an adult male pushing against the gate with all his might could not force the gate to reverse. In fact, during the Lugo incident, two male rescue workers could not force the gate off of her chest, while the gate operator continued to run.

Gates with two reversing mechanisms were available in models that met the previous edition of the voluntary standard, but that it didn’t ensure that gates were installed that way. In some cases, the second mechanism was offered as an option, but was not purchased by the gate owner. 

“The industry has known since the 1990s that there are entrapment zones – they actually call them that,” he says. “People don’t realize how dangerous these gates are. Safety for children shouldn’t be an option.”

CPSC Slaps Office Depot 3.4 Million Times in Chair-tastrophe

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The U.S. Consumer Product Safety Commission has fined paper-and-pencil-pusher Office Depot $3.4 million for its failure to report defects in its Gibson Leather and Quantum office chairs. The two shared a common problem – a sudden collapse of the seat base and a common retailer with a high resistance to recalls – but had different failure modes and price points.

According to the May 11 settlement agreement, the U.S. Consumer Product Safety Commission rapped Office Depot for violating the Consumer Product Safety Act by years-long lags between when it knew it had a problem with the chairs and when it notified the CPSC and launched a recall. In addition to the civil penalty, Office Depot had to agree to institute the industry-reviled internal compliance program, complete with formal policies, confidential reporting mechanisms, employee training programs, and records retention rules.

Office Depot neither admitted nor denied the charges, but commission Chairman Elliot F. Kaye made it clear that the CPSC believed its case was strong enough.

“When a company has received information about nearly 200 incident reports and more than 35 injuries yet fails to report to CPSC as required by law, as Office Depot did, there must be accountability,” he said in a statement. “Office Depot failed to report serious incidents to CPSC immediately, as the law clearly requires. More importantly, Office Depot failed to take responsibility and care for the safety of their customers.”

In October 2009, Raynor Marketing recalled 150,000 Quantum Realspace PRO 9000 Series Mid-Back Multifunction Mesh Chair and Multifunction Mesh Chair with Headrest, which retailed at $350. Manufactured by a Chinese company, Comfort Office Furniture, and sold exclusively through Office Depot, the chairs officially fell apart when the bolts attaching the seatback on the recalled chairs loosened and detached. But, according to the settlement, Office Depot first learned about a seat back failure in 2007. It also knew that the manufacturer had instituted design changes in 2008 and 2009, but continued to field injury and incident reports. By the time of the recall, there were 13 injuries and 33 complaints of seat detachments.

The Gibson chair case was a lot more egregious. From 2003 to 2012, Office Depot was the exclusive seller of 1.4 million units, manufactured by the Wonderful Year Furniture Company, and imported by Swinton Avenue Trading Company.  The retailer began getting complaints in 2005 about a bad weld which caused the chair to break. By the time the CPSC caught up with the case, Office Depot had racked up 153 incidents and 25 injury reports. It only came clean after the Commission staff opened an investigation in December 2012. Office Depot didn’t launch a recall until May 2014.

From Falls to Fines

The Safety Record Blog cannot help but note that Office Depot would not be the star of today’s CPSC press release, without some outside help.

The first to sound the alarm was a Florida blogger named Jessica Clackum, who in late 2006, suffered a fall when her 14-month-old Swinton Avenue Trading Company chair collapsed, after the weld at the base of the chair failed. Clackum had contacted Office Depot looking for restitution, but the managers shrugged. She tracked down the Swinton Avenue Trading Company, but the entity turned out little more than a Florida address with no means for redress. She poured her outrage into a blog that attracted literally hundreds of complaints. In April 2009, an Office Deport Senior Customer Relations Manager named Casey Ahlbum even posted a response solemnly reciting the company pledge: “At Office Depot Taking Care of Business is the unwavering commitment that we make to our customers, providing unprecedented value, selection, quality and service,” he wrote.

In March 2010, fellow victim Nancy Losey of San Antonio, Texas routed her complaint more directly. In March 2010, Losey broke her hip in a fall from a Gibson Leather Office, an injury that required a hip replacement. Losey’s attorney Paula Wyatt determined that the Gibson had the same design and product registration number as Office Depot’s Biella Office Chair, also with a bad weld, also manufactured by the Wonderful Year furniture company, also imported by Swinton Avenue Trading Company, and also sold exclusively by Office Depot. But in April 2012, Swinton recalled 307,000 Biella chairs, after 11 reports of the breaking chairs, and injuries. In October 2012, Wyatt alerted the CPSC to these stunning coincidences.

In November 2012, The Safety Record Blog threw a little gasoline on the fire by publicizing Wyatt’s effort to get the Commission’s attention; in December the CPSC launched an investigation; 18 months later Office Depot announced a recall. And, if you’ve gotten this far in the story, you know what happened next.  (You can read our fine coverage at: Office Depot Declines to Launch Recall for a Chair that Launches Occupants Backwards; CPSC Investigates Chair Office Depot Tried to Forget; and Office Chair From Hell Finally Recalled)

“I’m not surprised at how much time it took, but I’m surprised that they are being fined,” Clackum said. “We have heard about some companies investigated, found guilty and fined, but more often than not it’s swept under the rug and there are no consequences. I feel like the consumer has just won a major victory and it’s not just about a chair. It’s about the fact that consumers have rights and it sends a warning to other companies you can’t get away with this.”

The Commission approved the settlement on Friday on a 3-2 vote on party lines.  In a statement explaining his “no” vote, Republican-appointed Commissioner Joseph P. Mohorovic conceded that Office Depot was “woefully late” in reporting and deserved a penalty. But he protested the amount of the fine and how it was determined. The Office Depot case, in his view, didn’t fit the penalty factors criteria established by a 2010 rule — the victims weren’t among the vulnerable populations of elderly or children, there weren’t enough injuries relative to the number of units sold, and the injuries weren’t serious enough:

 

“Last October, we secured a record $4.3 million settlement from a company for failing to report minibikes that were catching on fire, causing severe burns to at least one child,” he stated. “That we would settle on a penalty anywhere near that for failing to report desk chairs that rarely broke, more rarely risked injury, and very rarely risked serious injury indicates that there is little coherence in our approach to penalties, much less any that an outsider could divine from our settlements. We owe it to everyone involved – companies, consumers, and our own staff – to do better.”

Kaye, however, made it clear that a $3.4 million penalty is more a floor than ceiling.

“While this well-deserved civil penalty is not even close to the level Congress authorized and expected when enacting the Consumer Product Safety Improvement Act, I have put violators on notice that we will seek much higher penalties, as appropriate,” he said. 

By the by, the commission is still getting complaints about the Quantum chair – about 18 post-recall, and consumers are reporting pretty clearly that the real problem isn’t loose bolts, it’s bolts made of soft metal that suffer fatigue and shear clean off. Here’s the most recent, lodged in April of this year:

A chair broke causing injury to myself and I Googled for it and found out it had been recalled which was news to me. Reading the recall notice, it says that "bolts attaching the seatback on the recalled chairs can loosen and detach, posing a fall and injury hazard to consumers". This misstates the problem entirely. The real problem is not that bolts loosen and detach, the problem is that the bolts fail under tension load. That means that tightening them may make the problem MORE likely to occur and one may think that tight bolts would mean that they are safe. The bolts supplied in the seat back attachment are made from pot metal and not hardened steel. The failure mode occurred with bolts fully tight. The recall notice must state that the problem is that the bolts are not strong enough for the task and NOT say that the bolts may come loose. A thinking person may be mislead to believe that he is safe if the bolts are tight and this is not the case. Please have them change this language and keep them from misstating the facts. I have a neck injury as the result of two snapped bolts causing a fall against a filing cabinet.

Maybe, as Office Depot is getting together its compliance plan, it can re-notify the unsuspecting owners of its Quantum chairs that they are eligible for a refund – and properly describe the defect while they are at it.

Mandatory Window Blind Rule Advances

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After two decades of fruitless interaction between the U.S. Consumer Product Safety Commission and the window covering industry, the commission voted last Friday afternoon to officially put one step forward toward a mandatory standard.

The vote was unanimous to publish an Advance Notice of Proposed Rulemaking.

“It speaks to the new tenure of Chairman [Elliot] Kaye to make this a priority,” says Kaye’s spokesman Scott Wolfson. “From the chairman’s perspective, the status quo has been broken and we are on a different path than that of the past few years. Chairman Kaye believes in what the law calls for — a robust voluntary standard. But, there is evidence the voluntary standards process is not working to the benefit of the consumer. He is ready to lead and the staff is ready to act.”

This is all a nice way of saying that the commission finally wearied of going to meetings of the Window Coverings Manufacturers Association and suggesting standard changes to prevent children from being strangled by window blind cords, only to be patted on the head and ignored.

According to the injury and death data analysis prepared by the CPSC staff, and outlined in the briefing package, 11 children are strangled each year from window blind cords – an average that has remained unchanged for many years.  The CPSC’s emergency department-treated injury data (National Electronic Injury Surveillance System or NEISS) found an estimated 1,590 children received treatment for injuries resulting from entanglements on window covering cords from 1996 through 2012.

In May 2013, a consortium of safety advocates had had enough. Citing the availability of alternative designs, the consistent death rate and the failure of the voluntary standards-setting process, the group, including Parents for Window Blind Safety, Consumer Federation of America, Consumers Union, Kids in Danger, Public Citizen, U.S.PIRG, Independent Safety Consulting, Safety Behavior Analysis, Inc., and Onder, Shelton, O'Leary & Peterson, petitioned the CPSC to promulgate a mandatory rule to protect children from the preventable strangulation hazard.

“It’s wonderful to see the commissioners banding together and stepping up to the plate, but it’s been a long time coming,” says Linda Kaiser, founder of Parents for Window Blind Safety. The Kaisers’ one-year daughter Cheyenne Rose died in 2002 after she was strangled by a window-blind cord.  “This should have been dealt with a long time ago. Now the technology’s there, but the industry is still dragging their feet. This sends a message to industry that the CPSC is serious.” (See Parents for Window Blind Safety produced video "In an Instant")

On October 8, the Commission unanimously voted to grant it and allow the staff to prepare a briefing package in advance of a second vote to publish an ANPRM. At the time, GOP appointee Ann Marie Buerkle expressed “significant reservations about whether a mandatory standard for window coverings could be justified under the Consumer Product Safety Act.” In a statement issued after the October vote, Buerkle gave the standard Republican response to all things regulatory – no need for rules:

All of us at the Commission are keenly aware of the tragic deaths of young children that continue to occur all too often as a result of corded window coverings.  According to the staff’s preliminary analysis, however, the annual risk of a fatal strangulation from the corded window coverings sold from 1996 to 2010 barely exceeds one in a hundred million units.  Moreover, that risk is already declining as older products are gradually being replaced with the better products that are available now, and it will continue to decline as even better products become available in the future and safer alternatives become more affordable.   

Translation: Not that many children die, what’s the rush? We’ll just wait for everyone to re-decorate!

A Long History of Neglect

The purpose of this ANPR is to collect information related to a potential mandatory rule – although at this point, it is difficult to determine anything the commission doesn’t know about this issue. Strangulation by window cords has been captured in the technical and medical literature since at least the 1945. Other medical journal articles in the 1980s recognized his hazard. Asphyxia by rope or cord strangulation – including those of toys and mobiles, for example – accounted for 25 percent of all pediatric deaths prior to the 1980s.

In 1997, the Journal of the American Medical Association published the first epidemiological study specifically on window cord strangulation death. Using data from the National Electronic Injury Surveillance system, the study estimated that 359 children were strangled by window cords in the U.S. and that nearly half – 49 percent – were not being reported to the CPSC. By this count, nearly one child was strangling in window cords every two weeks, with the vast majority of the deaths occurring in children three years old and under. The CPSC thought that this study was significant enough to issue as a separate press release in June 1997 to alert parents to the danger, and re-issue it in 2011.

The CPSC itself has been gathering data on this problem since 1981. A 1981 Commission staff report about accidental strangulation of children under five years of age, noted 41 deaths from window blind cord strangulation and identified window covering cords as one of the products most frequently associated with child strangulation. In a 1994 effort to re-examine this hazard, the commission counted 175 fatal window cord hangings since 1973, with 45 deaths in the previous three years. In 2004, the CPSC, working with the Window Covering Manufacturers Association, analyzed fatality data from 1996 to 2002 and found 79 fatal incidents associated with window covering products for which in-depth investigations could be completed.

Data cited in the December 31 briefing package tallied 184 reported fatal strangulations and 101 reported nonfatal strangulations from 1996 through 2012 involving window covering cords among children 8 years and younger. On average, at least 11 fatal strangulations related to window covering cords occurred per year in the United States from 1999 through 2010, among children under 5 years old; there were another six non-fatal injuries.

Twenty Years of Warnings

The CPSC has been warning the window coverings industry to get it together at least since March 1994, when it expressed its concerns to the Window Covering Manufacturers Association (WCMA). CPSC representatives declared that “remedial action must be taken immediately,” and warned that it would not “limit its options,” if no voluntary standard was forthcoming.” The WCMA agreed to work with the CPSC to develop a voluntary standard under the American National Standard Institute (ANSI) process.  The main result of this collaboration was, in October 1994, to “encourage consumers to eliminate or tie down loops in their window blinds.” Manufacturers agreed to redesign pull cords to eliminate single tassel loops, with implementation to be effective by January 1995.

But this agreement failed to eliminate the hazards. In November 2000, the industry went back to revise the voluntary to include provisions to address inner cord accessibility. The revised standard, ANSI/WCMA A100.1-2002, was published in 2002. That revision also failed to stem the tide of fatalities. In 2004 the CPSC published another analysis of window blind cords, and, as part of that incidence analysis, made further recommendations. The agency made it plain that the goal of the voluntary standard was: “to remove any potential for these foreseeable circumstances to occur,” and criticized the current voluntary standards as inadequate.  Again, the CPSC made it clear that the industry should focus on solving this problem once and for all: “However, staff believes that the window covering industry should develop cost effective products that eliminate the strangulation hazard.”

In 2009, the CPSC launched one of the largest remedial actions in its history, recalling 50 million Roman shades and roll-up blinds. In November 2010, then CPSC Chairman Tenenbaum followed up with the creation of a 30-member taskforce composed of representatives of industry, the CPSC and the safety advocacy groups, to invigorate the process and draw up new guidelines to be completed within a year.  In June 2011, Tenenbaum reiterated that the purpose of a revised voluntary standard was to eliminate the strangulation hazard, and she urged the WCMA “to facilitate, rather than resist, the strengthening of some of the proposals currently being considered in the technical working groups. Although the voluntary standard is not yet complete, I remain very concerned that some of the revisions to the voluntary standard will fall short of eliminating the risk factors causing death and injuries, especially among toddlers and young children, from exposed cords on window coverings.”

They ignored her, too, prompting the consumer advocates on the committee to quit in September 2011, complaining that industry was only working to reduce, rather than eliminate the standard, and that their input had not been seriously considered.

The industry’s approach has been to tinker at the margins of the voluntary window blind designs standard and gussy-up its warnings to customers – but only going so far as to declare its intention to reduce the hazard, but not eliminate it. The first version of the voluntary standard was published in 1996 and is designated as ANSI/WCMA A100.1-1996 American National Standard for Safety of Corded Window Covering Products. The original voluntary standard required the elimination of cord loops and restriction of continuous loops and chains as a tension device. The industry redesigned the pull cords to eliminate single tassel loops, which became effective in January 1995.  Since then, almost all horizontal blinds have been manufactured with individual cords that terminate in separate tassels. Revised versions were published in 2002, 2007, 2010, and 2014.  The 2010 version was amended in response to the 2009 Roman shade recalls. The voluntary standard states: “The objective of this Standard is to provide requirements for covered products in 1.3 that reduce the possibility of injury, including strangulation, to young children from the bead chain, cord, or any type of flexible loop device used to operate the product.”

Despite regular trips to the voluntary standards committee conference room, pull cords and continuous loops continue to strangle children.

The CPSC staff reviewed 249 In-Depth Investigation files concerning window cord strangulation incidents against the most recent version of the voluntary standard and found that it would have addressed the hazards in 25.7 percent of these cases. In the vast majority – 57 percent – the new standard would have been ineffective. (There was insufficient information to draw any conclusions for the remaining 17.7 percent.)

Meanwhile, there have been numerous alternative designs available for years – break-away operating cords, manual and motorized cordless window coverings, cordless shades; wand operators; cord retractors, and cord shrouds. Nearly all manufacturers offer cordless product lines.

The industry has balked at making designs safer for the same reason they balk at everything – cost. The CPSC found that manually operated cordless window coverings may cost about $15 to $130 more than similar corded window coverings; motor-operated window coverings were even pricier, at more than $100-$300 higher than the prices of corded window covering. Some wand-operated vertical blinds cost about the same as corded versions; others appear to cost about $10 more than corded vertical blinds.

Averting the Severe Decree

The industry still has time to pull itself up by the continuous cord, and atone for two decades of foot-dragging. The CPSC rulemaking process is required to begin with an Advance Notice of Proposed Rulemaking, rather than a Notice of Proposed Rulemaking, which considerably lengthens the time from proposal to rule.

Wolfson, speaking for Kaye, held out hope that the window covering industry could roll out a robust voluntary standard and make the whole bad business go away. Toy makers were able to pull this off with the ASTM standard for loose magnets – a robust voluntary standard that drove down the death and injury incidence rate and became the industry go-to.

“There is still time to re-open their standard and seriously take into account the concerns we have with pulls cords and continuous loops,” Wolfson said. “We will continue to work on the two tracks. It worked with the magnets. A robust standard that clearly provides a technical solution – that’s the end-goal. The reality is that a good voluntary standard can be done faster than a good mandatory standard.”

Rachael Weintraub, Legislative Director and General Counsel for the Consumer Federation of America thinks it unlikely that the window-coverings industry will establish a stronger standard – although it is possible. The voluntary standard for baby walkers – issued in 1997 after a lot of pressure by safety groups — completely eliminated the hazard. (The CPSC final mandatory rule, established in 2010, adopted the voluntary standard.)

“But that is one case amongst many others that have not,” Weintraub said. “The history of this industry and this standard is an unwillingness to address the underyling issues. We think a mandatory standard is ripe. The industry has had decades to address these issues and they have not.”

Office Chair from Hell Finally Recalled

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After years of subjecting an unsuspecting public to an office chair with “welds” that break, flipping the occupant backwards, Office Depot, the exclusive seller of the sudden ejection machine, is recalling 1.4 million units sold between 2003 and 2012. According to a release issued by the U.S. Consumer Product Safety Commission, the office supply company had received 153 reports of the seat plate weld cracking or breaking, including 25 contusions, abrasions, injuries to the head, neck and a fractured back and hip.

That hip fracture was sustained by Nancy Losey of San Antonio, Texas, who in March 2010, was sitting in a Gibson chair when it suddenly collapsed. The chair was manufactured by the Wonderful Year Furniture Company, imported by Swinton Avenue Trading Company, based in Boca Raton, Fla, and sold by Office Depot.  The seat plate underneath her chair had separated from the chair base, because of a weld failure at that juncture. Ms. Losey fell to the floor and broke her hip, requiring a hip replacement surgery.

 In October 2012, San Antonio attorney Paula Wyatt, who represented Losey in a product liability case against Swinton Avenue Trading, set this resolution into slow motion, by writing to the U.S. Consumer Product Safety Commission alerting them to Losey’s injuries, and the amazing similarities between the Gibson and the Biella Office Chair, which bore the same product registration number and same bad weld in same critical place, but had already been recalled in April 2012. At the time, the Biella only had 11 complaints, compared to 18 between 2009 and 2010, for the Gibson. But, there were fewer Biella’s out there – 307,000 units. Under that recall, the remedy was a $55 store card – the price of the chair.

 The CPSC opened an investigation, but there was no immediate action. And today there was no immediate response to our question: Why in the heck did this take so long? CPSC spokesman Scott Wolfson did say:

“CPSC produced a humorous video a few years ago to promote the use of SaferProducts.gov and it involved a man falling off of an office chair.  The video was based on actual incidents and today’s recall of a related hazard with office chairs is another example of the importance of reporting safety incidents via SaferProducts.gov.”

The Safety Record Blog gave Wyatt an assist by writing about this evil piece of furniture (see Office Depot Declines to Launch Recall for a Chair that Launches Occupants Backwards and CPSC Investigates the Chair Office Depot Tried to Forget), and highlighting the frustrations of one Jesse Clackum, who blogged about her fruitless attempts to make the Swinton Avenue Trading Company take responsibility for the collapsing chair. In late 2006, Clackum, based in Florida, was one of the Gibson Leather Office Chair’s hapless victims. Her version of a Swinton Avenue Trading Company office chair, retailing at $119.00, was only 14-months old when it collapsed after the weld at the base of the chair failed. Clackum immediately contacted Office Depot looking for restitution, but the office supply retail giant blew her off, and told her that she should have bought the extended warranty.  Clackum tracked down the manufacturer – the Swinton Avenue Trading Company, an entity which turned out to be unreachable – no phone number, just a PO address. Continue reading →

As the 6(b) Turns

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The U.S. Consumer Product Safety Commission has voted to publish a Notice of Proposed Rulemaking removing the “unnecessary and unjustifiable,” in the words of Acting Commission Chairman Robert Adler, re-notification procedure which forces the commission to seek the manufacturer’s blessing every time it releases the same information about a product to a different source.

The rule is designed to rid the commission of situations in which, for example, two reporters working on the same story query the commission about a product a week apart. The commission staff dutifully sets off on the ten-day path, through the manufacturer, before it can deliver an answer to the first reporter. A week later, the commission is required to take all of the same steps – even though the manufacturer has already vetted it for inaccuracies – to give the second reporter the same information.

“This is not in keeping with the acting chairman’s aim for the CPSC to be more transparent while following the law,” says commission spokesman Scott Wolfson. “The onus is still on the agency to ensure fairness and accuracy, that principle does not go away. But this rule change would ensure more efficiency and we’ll be able to serve the public faster.”

In the Information Age, consumer product manufacturers have been unusually successful at keeping the public information regulations surrounding product defect positively medieval. While consumers have myriad Internet resources to find out if a particular product is any good, when it comes to finding out if it is safe, consumers are still at a disadvantage. Section 6(b) of the Consumer Product Safety Act – beloved by industry, reviled by consumer advocates — gives manufacturers a lot of control over what negative information the CPSC can disclose about them. The CPSC cannot release information that might be considered trade secrets or “misleading” and “inaccurate” information.  The CPSC can disclose the existence of an investigation, under procedures designed to ensure the accuracy of whatever information is made public. The CPSC gives manufacturers 10 days to review any statements about their products and typically the two entities release agreed-upon language. Continue reading →

A Compliance Investigation on Home Elevators: Going Down

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It took six weeks of near-daily asking, but the U.S. Consumer Product Safety Commission has finally allowed a statement on its actions regarding home elevator entrapment hazards to trickle out of the bedrock that is 6B (the section of the Consumer Product Safety Act that allows manufacturers to control the flow of information from the CPSC.):

“The agency has an active and ongoing compliance investigation regarding the safety of residential elevators and the entrapment hazard they can present,” the CPSC said.

This “active and ongoing” compliance investigation emanates from a March presentation that Atlanta attorneys Andy Cash and Dave Krugler made to the CPSC staff on behalf of the Helvey family, whose six-year-old son suffered a severe head injury after becoming entrapped in a home elevator on Christmas Eve, 2010. The Helvey’s elevator was a National Wheel-o-Vator, now owned by Thyssenkrupp. The CPSC has jurisdiction over elevators used in residential settings as a consumer product. They are not subject to any mandatory federal standards, only industry-written voluntary standards, which may or may not have been adopted by states as a legal requirement.

And as part of its official statement, the CPSC also said this:

“While CPSC investigates the role and responsibilities of manufacturers and installers when it comes to the safety of residential elevators, owners of residential elevators should take steps to ensure children do not have unsupervised access to in-home elevators.” 

Michael and Brandi Helvey strongly refuted any suggestions that parents are to blame – the classic manufacturers’ response when their mis-designed or mis-manufactured products start causing harm in the marketplace. They had been scrupulous in installing gates on all the stairs, styrofoam covers on the sharp stone corners of the fireplace, childproof kitchen cabinet locks and a front door deadbolt to ensure Jacob couldn’t get out. Continue reading →

New CO Study Shows that Home Generators Can Emit Dangerously High CO Levels

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A new study simulating carbon monoxide levels in detached and manufactured homes commissioned by the U.S. Consumer Product Safety Commission shows that that operating a generator for 18 hours is likely to result in high CO exposures whether the generator is in the house or the garage; and that generators that have been modified to limit CO emissions using a shut-off mechanism or other technology can significantly reduce exposure compared to generators without emissions controls.

Last September, our blog Home Use Generators: Dangerous and Behind the Curve documented the rising incidence rate of CO poisonings linked to the use of home generators as extreme weather events and an aging power grid result in more and more prolonged outages. The agency’s response has been to closely track the data and promulgate a stronger warnings rule. Heightened hazard language has done little to dissuade homeowners from putting portable generators in locations that can create significant health risks for home occupants.

The simulation study authors noted that CPSC has recorded 755 deaths from CO poisoning associated with home generators, from 1999 through 2011, with nearly three-quarters of those occurring between 2005 and 2011, and many of which occurred during power outages. Continue reading →

The Elevator Design Hazard That’s Been Killing Children for Decades

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On Christmas Eve 2010, three-year-old Jacob Helvey tried to take the small National Wheel-O-Vator elevator in his Atlanta home to follow his mother Brandi, who had gone to the second floor to momentarily move some laundry. The Helveys are protective parents who didn’t allow their son to play in the elevator, so Jacob had never taken it by himself before. He accidentally entrapped himself between the hoistway door, which in home elevators, is a swing-type door that resembles any closet or room door, and the accordion-style door that encloses the elevator itself. Once that outer door closes, it automatically locks – a safety feature to ensure the hoistway door cannot be not opened while the elevator is in operation. It’s an old design that was common in small commercial buildings when elevators had attendants, and is still used today in home elevators.

[flashvideo file=video/BrickmanAnimation.flv image=”video/BrickmanAnimationPrevew.jpg” /]

Animation by Dennis Brickman, Engineering Systems, Inc.

Helvey, at 3-feet-2-inches and 31 pounds, was situated with his back against the accordion door, and his head turned sideways in its valley. Brandi could hear a commotion downstairs and summoned the elevator to check it out. As the elevator rose, and re-leveled, Jacob’s body fell through the space between the sill and the elevator car. When it stopped, the elevator was on Jacob’s back, with his head above the sill, compressed for 10 minutes while his mother, Brandi, pried the door open and a neighbor and police used a shovel and 2 by 6 to ease the elevator off his body  He suffered brain damage. Jacob, now five and a half years old, is slowly progressing, say his parents Brandi and Michael. Continue reading →

The Ill of the Grill

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If you experience searing pain after searing a steak on the grill, a small wire grill brush bristle may be to blame. Tristin Beck of Mount Lake Terrace, Washington and Brittany Berg of Coeur d’Alene, Idaho, were among the most recent cases to hit the news. Both teens wound up in a hospital operating room after accidentally ingesting a filament of grill brush wire embedded in the food they had been eating.

This phenomenon gained prominence last year, after U.S. Senator Charles E. Schumer and Consumer Reports joined together to call on the U.S. Consumer Product Safety Commission to determine whether grill brushes were safe and to warn consumers of the potential hazard, based on incidents that occurred in New Jersey and Washington State. The Centers for Disease Control followed up with an item in its Weekly Morbidity and Mortality Report (WMMR) authored by a team of Rhode Island emergency room doctors and radiologists documenting the not-so-rare occurrence of grill brush wire ingestion. Continue reading →

Triple Threat? The GAO Audits Saferproducts.gov

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Three years ago, when the U.S. Consumer Product Safety Commission began to solicit the public’s advice and counsel on the development of a consumer complaint database, manufacturers and the purveyors of consumer products forecast the end of capitalism. The database would be full of false reports, besmirching the snowy reputations of good and humble companies, who existed only to serve their customers according to the highest standards of retail integrity. And as this pool of complaints spread and deepened, tort lawyers would cast their lines, hooking cases with no actual merit but heavy with potential to drive said good and humble companies out of existence.

They stamped their feet and waved their fists, but the database was mandated as part of the Consumer Product Safety Improvement Act of 2008. A few rearguard actions were mounted to kill its funding, but they met with no greater success.

Saferproducts.gov debuted in March 2011. If you are afraid you missed the apocalypse, no worries. It didn’t happen. According to a rather mild – dare we say boring – Government Accounting Office report, the rumors of the free market’s demise at the hands of a consumer compliant database were greatly exaggerated. In fact, few consumers have actually used Saferproducts.gov to report an incident – only 12,030 from April 2011 to January 2013. The GAO, which conducted the performance audit from July 2012 to March 2013, found that more than 97 percent who used the website to report an alleged product failure identified themselves as consumers. In more than half the cases, the reporter identified him or herself – or a relative (parent, child, spouse) as the victim.

Most of the consumers who test drove the website for the GAO auditors found it easy to use. None of the group had heard of Saferproducts.gov before, and only a few understood the basic mission of the CPSC. Some were put off by requests that reporters register with the website. A few suggested helpfully that the website would be more aptly named Unsafeproducts.gov. (Now would that go over big with industry.)   Continue reading →