U.S. safety agency failing consumers

Products remain on shelves long after recalls

October 08, 2007|By New York Times News Service

DENVILLE, N.J. -- Dr. Walter E. Friedel's plans to waterproof the tile floor of his hot tub room using Stand 'n Seal, a do-it-yourself product sold at Home Depot, promised to be a quick project, one he could wrap up in time to catch the football game.

The product offered "a revolutionary fast way" to seal grout around tiles and, its label boasted, any extra spray would "evaporate harmlessly."

But Friedel, a 63-year-old physician, ended up being rushed to the hospital, where he would spend four days in intensive care, gasping for air, his lungs inflamed by chemicals.

Friedel was the latest victim of a product whose dangers had become known months earlier to the Consumer Product Safety Commission and the companies that made and sold it. Before Friedel bought Stand 'n Seal, at least 80 people had been sickened using it, two fatally.

But even then, the manufacturer, retailer and the commission had failed to remove the hazard from the shelves.

The task of getting dangerous products out of reach is perhaps the most pressing challenge the Consumer Product Safety Commission faces.

Nancy A. Nord, the acting chairwoman, said the agency is proud of its record of moving rapidly to pull hazardous products off the market. "The point is to get the recall out there, to get the consumer informed of what's happening and then try to get the product out of consumers' hands," she testified before a House panel in September.

But the Stand 'n Seal case is a powerful illustration of the commission's failure to live up to its mission. Court documents show that, as the case unfolded, the product's maker, BRTT, appeared at times to be more concerned with protecting its bottom line than with taking steps to ensure that the hazard was removed. Stand 'n Seal remained on the shelves for more than a year after the recall in 2005.

Critics say the case demonstrates how the Consumer Product Safety Commission is too overwhelmed with reports of injuries and with new hazards to fully investigate or follow up on complaints. The agency's lab is so antiquated that it did not have the equipment needed to fully evaluate the remedy BRTT offered - leaving the agency to rely largely on the company's promise that it would fix the problem.

And, after receiving repeated complaints that the hazard persisted long after the recall, the agency failed to follow up adequately, documents show.

Even if the slip-ups were a result of companies having concealed evidence, the commission still has a responsibility to use its enforcement powers to investigate and, if appropriate, issue fines. To date, more than two years after the commission became aware of the problems with Stand 'n Seal, no fines have been levied.

"They did not get the job done that consumers expect, and people suffered as a result," said R. David Pittle, who served on the commission for a decade after it was created in 1973, and later as technical director at Consumers Union, which publishes Consumer Reports.

A lawyer for BRTT, which was then known as Roanoke Cos., declined to comment. Home Depot issued a statement saying that it never knowingly sold a hazardous product.

The commission's records show a growing list of products that have been subject to "expanded" recalls, like Stand 'n Seal.

"A recall is not necessarily a recall," said Stuart L. Goldenberg, a Minneapolis lawyer who represents a family whose child was injured using an Easy Bake toy oven. The maker, Hasbro, alerted consumers about injuries to children's fingers from the ovens, first offering a repair kit, but then expanding to a full-fledged recall after dozens more injuries were reported.

And evidence is widespread of hazardous products - even after recalls - being for sale. Baltimore health officials found lead-contaminated toy rings in stores this year, three years after they had supposedly been pulled from shelves.

In the case of Stand 'n Seal, the Consumer Product Safety Commission received several notices that the hazard continued, even after the recall.

Rick Ericksen, 59, a Mississippi state geologist, called the agency to report "uncontrollable shivering spasms that convulsed my entire body" after using Stand 'n Seal, agency records how.

An agency official noted in the report that the lot number on the can Ericksen had used in September 2005 "was not on the list of recalled cans."

But Ericksen and others said they never received a response from the commission.

Roanoke had growing evidence that the problem persisted, documents show, including continued reports that went to the emergency call center about illnesses and a growing list of lawsuits based on injuries, many of them filed by consumers who used cans that were not among those recalled.

But it was not until March of this year, 18 months after the recall, that Home Depot and Roanoke acknowledged the apparent source of the continuing problem.

The 50,000 cans used to restock the shelves in 2005, the companies conceded, "have been identified as containing the same potentially harmful formulation as the recalled batches," a Home Depot statement said.

The hazard was finally eliminated this spring, as Home Depot removed Stand 'n Seal from the market and offered a refund to anyone who, after the recall, bought one of the 50,000 cans.

The commission blames misinformation provided by Stand 'n Seal suppliers for much of the breakdown. But it acknowledges that it is the agency's responsibility to detect and respond to bad information, and that it had failed to do so quickly in this case.

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