Mark S. Granger
GRANGER LEGAL CONSULTING
Mark S. Granger

  Mark S. Granger
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  GRANGER LEGAL CONSULTING
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Home Why the Adirondacks? SportsLaw Journals Articles Important Dates

Granger SportsLaw Journals > March 2016 Edition


SFIA LEGAL SUMMIT CPSC'S KAYE AND FTC'S RICH: STRAIGHT TALK OR SMOKE AND MIRRORS?

New Orleans was the setting for SFIA's Eighth Annual Legal Risk and Regulatory Management Summit. On the second day of the program attendees were treated to presentations by CPSC Commissioner Elliot Kaye and FTC Consumer Protection Bureau Director Jessica Rich. What was most striking about the presentations was how non-confrontational they both were. Both speakers passed up the opportunity to rain hellfire on an audience of manufacturers and their lawyers. Instead it became a presentation on "do the right thing," "if in doubt- report" and "don't mislead."

Kaye emphasized that the number one priority of the CPSC is to protect children. Chemical threats and head trauma are leading issues. The Commission is struggling with long term injury from chemical or trauma exposure. They recognize that the press can create "artificial pressure" on manufacturers and CPSC. There needs to be cooperation between industry and regulators to obtain the best and fastest results to help solve the problem. The example of CPSC staff joining and working alongside manufacturers in standard setting bodies such as ASTM was raised. It was also clear that the regulators were wary of oversimplifying the complex issues involved in concussion. Kaye talked about the risks of relying on systems such as the Star Rating as a comprehensive answer to a very complex problem.

At the same time it was clear that the CPSC expects the manufacturers to "own up" to deep rooted problems and to keep working on solutions. The Agency, Congress and the public will remain impatient for developments and there should be no foot dragging. Kaye strongly emphasized the need to report incidents in a timely fashion and the risk of heavy fines for failing to do this. One could describe his presentation as a handshake with a "mailed hand." Interestingly, in a presentation 24 hours later to DRI, CPSC Commissioner Mohorovic challenged Kaye's "we are here to work with you" rhetoric. As one of two Commissioners in the Republican minority, he warned his audience to watch their back when working with the CPSC. Battles involving CPSC staffers trying to dictate rules for compliance and control Corrective Action Plans are really fresh memories.

The FTC's Jessica Rich was more distant and cooler in attitude regarding cooperation. Her advice was simple- don't say deceptive things and you don't have to worry about the FTC. Her talk listed several "bad corporate decisions" which lead to large fines. Reebok and Sketchers "toning shoes" and concussion prevention claims by mouth guard manufactures lead to costly involvement with the FTC.

Rich described the FTC as a law enforcement agency with a broad jurisdiction." She made it clear that having some scientific evidence supporting an advertising claim is not enough. Proof needs to be "clear and convincing." Advertising claims must have competent and reliable information - supported by experts in the field. It was certain that she meant multiple experts not just one. Protecting consumers' personal and medical information is also a critical task of the FTC. Explanation of risk both to children and their parents is also an area of scrutiny. Consumer testimonials cannot be faked and the fact that the consumer is being compensated must be revealed in the advertisement. She warned against manipulation of data or deceptive advertising relying on fake tweets or testimonials. Canned positive reviews, without revealing that they are paid for, could be a basis for an FTC action. Rich made it clear that manufacturers would be held responsible for misleading claims and advertising. The amount of FTC scrutiny is inversely proportional to the age of the consumer and directly proportional to the risk and seriousness of harm. The audience was clearly left with the impression that Kaye and Rich are serious regulators who will not hesitate to take action against entities they perceive as being violators. While Kaye talks about reaching out to manufacturers, there are concerns, cited by students of the CPSC and noted by Commissioner Mohorovic. Can there be true cooperation in an era of huge fines and Corrective Action Plans which insert the CPSC employees in the day to day operation of companies? How much trust can there be in the FTC can impose injunctions and fines on corporate officers personally? Stay tuned it will be an interesting year!

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RAMS QB LEFT IN GAME WITH CONCUSSION

The issue of when to remove players from a game after head trauma came to the forefront late in the NFL season with St. Louis Rams Quarterback Case Keenum. As described in the NY Times:

Keenum was not removed from a game after being knocked out and obviously suffering a concussion. The NFL further mentioned that team doctors and its medical personnel would meet to discuss whether to alter the rules on concussions.

More specifically, Keenum was knocked to the ground late in a game against the Baltimore Ravens in November and could not get up. He attempted to stand, but wobbled and fell back down before eventually being helped to his feet by a teammate. The Rams trainer, Reggie Scott, ran onto the field to look at Keenum, who then went to the ground. Scott was told by an official to leave the field or his team would be charged with a timeout, so he returned to the sideline. Two plays later, Keenum was sacked, and he fumbled. After the game, Keenum was found to have sustained a concussion, and he did not play in the next two games.

Blown call, official indifference or just part of the game? Would your answer be different if it were a 16 year old high schooler? A high schooler might be better protected by most state return to play statutes. But it is unlikely that a skilled trainer would be at the game to observe the injury or the behavior demonstrating that injury. The Times goes on to say:

According to the NFL, the number of documented concussions increased by 31.6%, from 271 in 2015 compared to 206 in 2014. The NFL believes that this is partly because the number of players who were screened for concussions doubled, as more players are now self-reporting.

Look for much more this year on recognition of head injury in ALL sports and increased vigilance on return to play protocols. Schools and leagues not adopting clear rules and procedures and enforcing them, will likely find themselves in the legal crosshairs.

See: http://www.nytimes.com/2016/02/05/sports/football/mishandled-concussion-sparks-review.html

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NHL ENFORCER DID NOT HAVE CTE

When Todd Ewan died of a self-inflicted gunshot wound in September, folks were amazed to find THE ENFORCER did not have CTE. As a rough and tumble gunslinger in hockey, it was expected that an autopsy would have shown clear evidence of the disease from multiple hits during years of play. This result highlights the individuality of brain trauma in different people. Dr. Lili-Naz Hazratie, the neuropathologist who conducted the autopsy, stated that, "these results indicate that in some athletes, multiple concussions do not lead to the development of CTE."

Traumatic brain injury and its origins/causation continue to baffle and challenge the medical community.

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GETTING THE LEAD OUT

The early years of the 21st Century were full of stories about lead poisoning caused by children's toys and jewelry. Congress passed the Consumer Product Safety Improvement Act- an aggressive response to the dangers posed. The law makers literally kicked the CPSC in the pants and established non-negotiable timelines for new regulations and enforcement. Manufacturers and the CPSC are still struggling here but the issues of lead, phthalates and cadmium have obtained some clarity.

The main conclusion is "get the lead and cadmium out." If you cannot get it out, make it inaccessible. As for phthalates reduce them to less than 1000 parts per million if you can't eliminate them. With California Prop 65 around, make sure that you are maintaining low or negligible levels by monitoring your manufacturing sites and spot check your final products under a reasonable sampling program. There can be lots of surprises from Asia!

Experience shows that you need to have a testing program in place in Asia and in the US. Using an accepted sampling protocol, random sampling of product at the border and in warehouses is a necessity. Failure to do this can open you to missing a compliance issue and exposing you to a recall and/or fines from the CPSC.

Where is the CPSC Headed in 2016?

Watch for regulatory developments this year as the CPSC flexes its muscles and moves forward imposing higher fines. One area of movement is adopting more ASTM and other industry consensus standards. While attention is now focused on children's furniture, the CPSC has now asked the ASTM F08 committee to develop a consensus standard for impact sensors. Watch for that to be fast tracked.

It will be interesting to see how the CPSC will reexamine recall effectiveness. The CPSC has reported that current data shows that 80% of recalled consumer products are not returned by the consumer, or are otherwise unaccounted for. A recall is only effective if there are comprehensive and continuing efforts to reach all relevant consumers as quickly as possible. The CPSC is looking for creative ways to reach consumers, such as product registration. However, manufacturers should continue to take steps to provide direct notice of recalls to their customers.

Interestingly, the CPSC data shows that 30% of product incident reports result in no recall. The CPSC believes it is better for companies to report and initiate their own investigation into product incidents, which may or may not result in a recall. When the CPSC initiates its own investigation, the likelihood of an eventual recall may increase.

Both the CPSC and NHTSA have expressed a goal of improving methods by which consumers can register products, and by which companies can contact consumers with important information regarding product safety issues.

Crib Bumpers - In 2012, the Juvenile Products Manufacturers Association (JPMA) filed a Petition with the CPSC requesting the CPSC to initiate rulemaking to establish performance standards for crib bumpers. The CPSC voted unanimously to grant the Petition. The CPSC has since issued a Request for Information (RFI) and has engaged in the rulemaking process related to crib bumpers. A proposed federal rule regarding crib bumpers may be issued in 2016.

Importing Consumer Products - Several government agencies are working on a joint effort to make the importation of consumer goods simpler and more transparent by having "one window" for imports. The proposed changes would ultimately allow importers to provide information through one central portal, as opposed to reporting through 47 different agencies. Specific agencies could then communicate directly with importers when issues arise. A pilot program is currently underway.

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THE NFL AND CTE
Where are they?

For years the National Football League has been embroiled in controversy on the issue of the long term impact of blows to the head in play. Despite allegations and some evidence of a connection between professional football and Chronic Traumatic Encephalopathy (CTE), the NFL has consistently denied a connection. While long term players were found to have evidence of CTE in autopsies, the leagues position in court and the media has been that there is not sufficient scientific evidence to support a legal connection.

Now, according to a NY Times article that may be changing. The article says:

"In perhaps its clearest admission that football can cause degenerative brain disease, the N.F.L.'s top health and safety official admitted Monday that there was a link between the sport and chronic traumatic encephalopathy, a brain disease found in dozens of retired players.

In a round-table discussion on Capitol Hill, Jeff Miller, the N.F.L.'s senior vice president for health and safety policy, was asked by Representative Jan Schakowsky, Democrat of Illinois, whether "there is a link between football and degenerative brain disorders like C.T.E."

Miller did soften the impact of his words by questioning the prevalence of CTE which can only be shown by autopsy. A number of football notables have shown evidence of tau protein, a CTE marker, in autopsies. These include Junior Seau, Frank Gifford and Ken Stabler.

Whether this constitutes any kind of admission by the NFL and its impact on existing and future litigation remains to be seen. It is already being raised by opponents to the settlement of the class action by players against the NFL by former players who believe the settlement fund available is inadequate. The basis for that suit was the failure of the NFL to inform players of risks of long term health impacts that it allegedly aware of.

Stay tuned - there is much more to come.

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ASTM ADOPTS NEW ICE HOCKEY GOALIE THROAT PROTECTOR STANDARD

After nearly 5 years of discussion, testing and deliberation the ASTM F08.15 Ice Hockey Committee has adopted a standard which will control the design and characteristics is ice hockey goalie throat protection. Despite face masks and helmets and much body padding, ice hockey goalies have been exposed to blows to the throat by pucks coming in under the facemask. While there have been various attempts to protect this area of the body with hanging throat protectors, there has been no standard making sure that these will perform as designed. Thanks to the efforts of a 12 year old goalie and his father, ASTM now has such a standard. The ice hockey world now welcomes ASTM F3165 ? 16 Standard Specification for Throat Protective Equipment for Hockey Goaltenders.

We expect that this will be adopted for certification by the Hockey Equipment Certification Council (HECC) and should thereafter become required by USA Hockey, the NCAA and NFHS.

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