Cheat Sheet: A guide to navigating two new federal consumer safety measures

The Food Safety Modernization Act and Consumer Product Safety Improvement Act place new regulatory burdens on manufacturers, processors and suppliers

The food we eat, the clothes we wear and the toys we give to children are such integral parts of our lives that we often don’t give them a second thought. But in recent years reports of Salmonella outbreaks and high lead levels have spurred concern over food and consumer product safety.

In an effort to combat these hazards, the U.S. government has introduced the 2008 Consumer Product Safety Improvement Act and 2011’s Food Safety Modernization Act. In our January cover story, “Safe Measures,” InsideCounsel examines the implications of these two pieces of landmark legislation and provides expert advice for companies seeking to comply with their requirements.

What is the history of the Food Safety Modernization Act (FMSA)?

A series of well-publicized Salmonella outbreaks—linked to foods such as peanut butter, eggs and tomatoes—helped to spur the January 2011 passage of the FSMA. The law’s aim was to emphasize the prevention of outbreaks, rather than focusing on the reaction to those outbreaks.

What other measures did the FSMA introduce?

The FSMA also mandates that facilities that manufacture, process and package food must implement food safety plans that identify the specific safety risks of their products, create procedures to minimize or avoid these hazards and identify corrective steps to be taken in case of contamination. Although that requirement went into effect in July 2012, the FDA missed the deadline for issuing regulations implementing the law

What implications does the FSMA have for businesses?

Because the FSMA does not preempt state and local laws, some experts note that food companies will not be able to follow the example of drug and device companies when it comes to litigation.

What is the Consumer Product Safety Improvement Act (CPSIA)?

What implications does the CPSIA have for businesses?

The Publicly Available Consumer Product Safety Information Database, which launched in March 2011, allows consumers to report product safety hazards. Some companies fear that negative consumer reports could be used as evidence during product liability trials, although a Maryland court blocked the publication of a report last October, ruling that the CPSC knew the content was inaccurate.

What steps should companies take to comply with the CPSIA?

Like the FSMA, the CPSIA has some companies worried about a possible rise in lawsuits courtesy of private litigants and plaintiffs attorneys. To ward off costly lawsuits, Paul Cereghini, executive managing partner of Bowman and Brooke, says companies should monitor CPSC regulatory activities related to product liability claims, keep tabs on the public information database at to see whether product liability attorneys are attempting to initiate regulatory activity and take swift action at the first sign of regulatory activity or litigation.

Alanna Byrne

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Melissa Maleske

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