Law Offices of Steven W. Hansen

April 1, 2026

Court decision on AI shows the pitfalls of using it in the legal context without proper safeguards

Most of the cases recently regarding use of AI either discuss attorneys (even at “big” firms) using it carelessly and not double checking AI output for “hallucinations” (fake case cites usually) or for privacy issues or even suits with allegations that AI encouraged a teen suicide. But this case was different and stood out to me as I know a number of clients that use AI regularly and likely in the legal context. In a recent federal court ruling in February 2026 in New York in US v. Bradley Heppner a federal court held in a published decision that a non-attorneys use of an AI chatbot to prepare reports to outline a defense strategy against the US government, which was prosecuting him for securities fraud wire fraud and making false statements, was NOT protected by the attorney client privilege.

In connection with Heppner’s arrest agents from the FBI executed a search warrant at his home and seized numerous documents and electronic devices. There were numerous documents that memorialized communications that he had with the generative AI platform operated by a private company. Mr. Heppner's counsel did not instruct his client to go to the AI platform to create a defense strategy but his counsel later argued after the search warrant was executed, that Heppner was preparing these reports in anticipation of a potential indictment. The government of course then moved for an order allowing them to examine all of the AI documents arguing that they were not protected by the attorney-client privilege nor the attorney work product doctrine.

The court held the attorney-client privilege “attaches to, and protects from disclosure, communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice." Courts construe the attorney-client privilege narrowly because it operates as an exception to the rule that "all relevant proof is essential".

Applying these principles, the AI Documents lacked at least two, if not all three, elements of the attorney-client privilege.

First, the AI documents were not communications between Heppner and his counsel. Heppner did not, and indeed could not, maintain that the AI chatbot was an attorney.

Second, the communications memorialized in the AI Documents were not confidential. This is not merely because Heppner communicated with a third-party AI platform but also because the written privacy policy to which users of the AI platform consent provides that the AI company collects data on both users' "inputs" and the AI "outputs," that it uses such data to "train" the AI, and that the company reserves the right to disclose such data to a host of "third parties,". Essentially AI users do not have substantial privacy interests in their "conversations with [another publicly accessible AI platform] which users voluntarily disclosed" to the platform. For these reasons, Heppner could have had no "reasonable expectation of confidentiality in his communications" with the AI.

Third, Heppner did not communicate with AI for the purpose of obtaining legal advice. This issue perhaps presented a closer call because Heppner's counsel asserted that Heppner communicated with AI for the "express purpose of talking to counsel." Heppner's counsel also conceded, Heppner did not do so at the suggestion or direction of counsel. Moreover, even assuming that Heppner intended to share these communications with his counsel and eventually did so, it is black-letter law that non-privileged communications are not somehow alchemically changed into privileged ones upon being shared with counsel.

Finally, the AI Documents do not merit protection under the work product doctrine because, even assuming, arguendo, that they were prepared "in anticipation of litigation," they were nevertheless not "prepared by or at the behest of counsel," nor did they reflect defense counsel's strategy. Heppner was not acting as his counsel's agent when he communicated with AI. Because the AI documents were not prepared at the behest of counsel and did not disclose counsel's strategy, they did not merit protection as work product.

So the takeaway from all this, especially in potential civil litigation, is to let your counsel interface (if at all) with AI about your case, unless of course you are willing to loose all claims of attorney client privilege over your most intimate thoughts about the legal viability of your case or defense.

July 25, 2025

California Proposition 65 (“Prop 65”) Notices of Violation regarding thermal receipts, thermal labels or stickers

Over the past several months, hundreds of businesses across California (or those outside California that sell into California or whose products end up in California) have been served with Notices of Violation (NOVs) of California’s Proposition 65 (“Prop 65”) for issuing thermal receipts at the register and or using thermal labels and stickers in their stores. This could also apply to stickers used on shipping boxes or various thermal receipts placed in side of boxes. This alert is not limited just to businesses that have checkout registers that use thermal paper.

This sudden influx of NOVs comes after California added a new chemical—Bisphenol S, or BPS—to its official register (in December 2023) of chemicals known to cause cancer or reproductive harm. (see our prior article on that here). As you can see it did not take long for the Prop 65 plaintiff law firms (about 15 or so that spend most of their time on these suits) to get the printing presses rolling (and to keep those “fees” rolling in)

The NOVs allege that receipts printed on thermal paper or thermal stickers and labels, contain BPS, and that by exposing their employees and the public to the BPS in receipts, labels and stickers without providing a warning, the businesses have violated (and are continuing to violate) Prop 65.

If your company has ever been the subject of a Prop 65 suit then you know the massive cost associated with try to resolve them. The settling party has to pay all the other side's attorney fees and we are letting you know those fees are typically 2 to 3 times what they are on the defense side for a tenth of the work done on the defense. It truly is a “legal” shakedown racket. If your company has not been the subject of a Prop 65 case and any of your product ends up in California I’d suggest speaking with us now.

Please start checking the chemical contents for all your labels and receipts now. This site gives a bit more insight on the paper/label maker market response to this issue. (Jan 2025.

There is currently no established safe harbor level for BPS under Prop 65. (this also means that typical "parts per million" PPM testing will not help your defense) Thus, any detectable quantity of BPS can trigger Prop 65 requirements. Once a chemical is listed under Prop 65, businesses have 12 months from that date of listing to eliminate exposure or provide clear and reasonable warnings. The first NOV for BPS in thermal receipt paper/labels was filed in January 2025. As of this writing there are 359 NOV’s officially on file in California.

June 20, 2025

UPDATED 6-25-25: CPSC looks to be now publishing this proposed standard for comment: Lithium-Ion Batteries Used in Micromobility Products and Electrical Systems of Micromobility Products

UPDATE 6/25/25: This is very odd. This proposed rule was to be published in the Federal Register 6/23/25 to start the comment period. Instead when we go to that Federal Register page on line we see this note: "Editorial Note: This document was withdrawn by the Director of the Federal Register. This entry will remain on public inspection through the close of business on June 23, 2025." So apparently this rule has once again been pulled. This is very odd. Never seen this before. The proposed rule that was posted 6/20/25 is now archived here as it is no longer on the federal register page below. This is what the Federal Register page (FR Document: 2025-11424) shows as of 6/25/25 (Page not found: We're unable to find the requested page. Please check the url and try again or perform a search at https://www.federalregister.gov/documents/search.)

Prior Story (6/20/25):

Just days after a court ordered the Trump administration to reinstate three democratic commissioners on the Consumer Product Safety Commission it appears that they have instigated a re-posting of the proposed rule for a comment period. This proposed rule was scrubbed by the two republican members soon after Trump fired the three democratic members. We shall see how this goes. Not at all clear what the Trump administration will do with this proposed rule as it gets final say on all rules out of the CPSC according to the Trump Administration Regulatory Freeze Memorandum (not an executive order). In addition to that memorandum there is also the "new" Trump edict that the CPSC should submit all proposed rules to the Office of Information and Regulatory Affairs for review pursuant to Executive Order 14215. This may be another test case / trial balloon. Not sure if they will allow it to become an actual rule or not. Here is the current proposed rule (now archived on my site as of 6/23/25) just before publication (scheduled for June 23 2025) to the Federal Register to start the public comment period.

May 17, 2025

CPSC withdraws the notice of proposed rulemaking to establish a safety standard for lithium-Ion batteries used in mobility products

In recent weeks, the Consumer Product Safety Commission (CPSC) voted three to two to move forward with a notice of proposed rulemaking (NPR) regarding the new safety standard for lithium ion batteries. Since that occurred, however, Trump fired all three Democratic commissioners on May 8th, 2025. As a result, the remaining two Republican commissioners acting chair Peter Feldman and commissioner Douglas Dziak voted unanimously on May 13th to withdraw the notice of proposed rulemaking to establish a safety standard for lithium-Ion batteries used in mobility products and electrical systems of mobility products containing such batteries. The very terse order can be read here.

As some of you may know, the draft safety standard was referred to the Office of information and Regulatory Affairs, which reviews and coordinates proposed regulations to ensure that they comply with President Trump's agenda. No word on what happened with this NPR with respect to that department. However, it doesn't really matter as the notice of proposed rulemaking has been killed.

As you also probably know from reading this blog, there is proposed legislation on lithium ion batteries in mobility devices and it's still moving through Congress. The house passed HR 973 on April 28th 2025 and if the Senate goes along with this and also passes it under its companion bill, it would then require the CPSC to only make the three current UL voluntary standards, UL 2271, UL 2849 and UL2272, mandatory. The notice of proposed rulemaking would have gone beyond the voluntary standards for all of the reasons laid out in the notice of proposed rulemaking. Of course, industry would have been given an opportunity to offer suggestions to the notice of proposed rulemaking, but that will not happen at this point. And of course we are not sure at this point if the legislation will pass the senate. Also if the three CPSC commissions successfully sue for their jobs back this could be reversed again, of course adding more uncertainty to manufacturers already full plate of “tariff uncertainty”. Watch this space for further developments.

May 7, 2025

California supreme Court holds a written release in a cycling injury case does not prevent a suit by the cyclist against the city

Given that I spend most of my hours involved in liability, release issues, bicycle accident cases, and government tort cases, I felt that this was a very significant case to discuss in the cycling community.

The case is Whitehead v. City of Oakland and was decided by the California supreme Court on May 1st, 2025. It was an appeal from the trial court that granted a summary judgment motion in favor of the City which was then upheld on appeal.

A number of different entities filed amicus briefs in the case, including the California Bicycle Coalition on behalf of the plaintiff.

The plaintiff suffered a traumatic brain injury in March of 2017 while participating in a group training ride for the AIDS ride. He was riding downhill on Skyline boulevard in Oakland in a rather rural area with no other riders nearby and his front wheel went down into a large deep pothole near the center of the lane and he flipped over and hit the rear of his head on the pavement.

Earlier that day before the training ride, he signed a release form releasing all course or facility owners which could include state and local governmental entities and was warned in the release that using public streets can contain hazards such as broken pavement.

Interestingly, there had been a number of cases decided under California Civil code section 1668 which has since 1872 provided that “all contracts which have for their object directly or indirectly to exempt anyone from responsibility for his own fraud or willful injury to the person or property of another or violation of law, whether willful or negligent are against the policy of the law”

For many years, courts have used another supreme Court case Tunkl v Regents of University of California, a 1963 supreme Court case in California, which since that time has been used to evaluate whether or not releases involved or did not involve transactions “affecting the public interest” which was often used to defeat challenges to releases in cycling cases because cycling in general did not “affect the public interest”

What was significant in the Whitehead case was that the court said that the Tunkl case was only a framework to decide “common law” negligence cases. That was differentiated from the current case because the current case involved a violation of a “statutory duty”, namely Government code section 835, which provides that a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in the dangerous condition at the time of the injury. There are also other requirements such as constructive notice, foreseeable risk, etc. Although those issues were not raised in this appeal.

The only issue for this court to decide was whether or not a release prior to an accident could relieve the city of its “statutory duty” under government code section 835. The court held that the factors in the Tunkl decision were not involved here because that case was only to be applied in situations in which there was a “common law” negligence claim which was not the case here.

The court relied heavily on Capri v. LA fitness where the plaintiff alleged that the club had allowed algae to grow near the pool in violation of state and local health and safety laws and that the statutory code violations proximately caused him to fall. The court in that case agreed, finding that the release did not bar his case

The court also relied heavily on Williams v. County of Sonoma. A 2020 case (that I had argued should continue to remain published as government entities tried to de-publish it) where the Court held the county owed duty to maintain safe roads for all foreseeable uses including bicycling. That case also involved a pothole, similar to another case I was litigating at the time.

The court looked at the legislative history of section 1668 And felt that it only directly applied to violations of statutory law, not common law claims and that for common law claims the correct analysis was to apply the Tunkl analysis.

The government entities also heavily relied upon Okura v. USCF a 1986 case in which a racer was injured when his bike hit loose debris as he was crossing railroad tracks during a bicycle race. That particular release also released municipalities, but the court in that case upheld the release. However, the court did not analyze the release specifically with respect to the city in that case. It was also important to point out that the only cause of action in Okura was for common law negligence, not a violation of government code section 835 as in this case.

The city also tried to argue that Government code section 835 did not require it to take any particular action in this case with respect to maintaining roads or streets. However, no authority was cited for that assertion and under prior case law. It was clear that under section 835 public entities owed members of the public a duty not to maintain public premises in a dangerous condition.

So the California supreme Court in Whitehead ruled that the release was not a bar to the plaintiff's case against the city of Oakland. However, the case will be remanded to the lower court so that further litigation can take place to determine whether or not the government entity has an immunity under the government code or whether it had notice of the dangerous condition under section 835 as well as a host of other legal and factual issues.

Of course, the government entities argued that trying to keep roadways in a safe condition was going to be too expensive. But the court noted that a number of other states held similarly to this case and there were no floodgates opening in those States with respect to cases against government entities for dangerous conditions.

The court also did not decide whether section 1668 necessarily invalidated releases of claims arising from every statutory violation. And again any such statutory violation would have had to have been a direct cause of the plaintiff's injury as in Whitehead.

The court simply held that the city sought to enforce a release to preclude an action that allegedly arose from a violation of its statutory duty to maintain safe roadways for the public and the court determined that such a release violates section 1668.

Concluding Thoughts

What is going to be most interesting going forward is to see if the city's arguments made at the hearing are going to come to fruition and whether California government entities (cities, counties) are now going to make it more difficult for entities and bike clubs that want to sponsor fun rides or races, to hold those events. It may be even more likely that clubs or event sponsors will need to obtain insurance in favor of the government entities (as they normally have been required to do in the past) in case the release is not upheld as to the government entity.

This case will not affect injured cyclists who are not signing releases. They simply have a right to file suit against the government entity as there is no release involved and the government entity has available to it all of its statutory immunities regarding dangerous condition of public property.

What will also be interesting is the interplay between the various potential defendants that have been released by a release and which ones had statutory duties that pertain to the accident and which ones do not. And only time will tell whether or not these government entities (or other non governmental entities) that are now on the hook without the benefit of the release will be able to go after other entities involved in the race (but effectively released), such as sponsors or potentially equipment manufacturers of the bikes or other devices that the plaintiff’s are using at the time of the accident.

In some respects this is no different than a typical product liability Defendant. Those defendants cannot benefit from pre-injury liability releases because product liability claims are not waivable via a release in most states. That is established law in California for some years now.

February 24, 2025

Request for Comments to Assist in Reviewing and Identifying Unfair Trade Practices and Initiating All Necessary Actions to Investigate Harm From Non-Reciprocal Trade Arrangements

This document and comments section was posted on 2/24/25. It is focused on seeking reason to impose tariffs not really arguments as to why tariff's should not be imposed on a certain segment of consumer goods but I suppose this is a chance to voice your opinion in writing directly with the USTR about tariff's related to specific countries like China. One commenter from the bicycle business brought up de minimis reform which would seem to be an appropriate comment for this request. Specifically the request seeks: "...comments from the public, on a country-by-country basis, to assist the U.S. Trade Representative in reviewing and identifying any unfair trade practices by other countries, and in initiating all necessary actions to investigate the harm to the United States from any non-reciprocal trade arrangements. This information will assist the U.S. Trade Representative in recommending appropriate actions to remedy such practices and reporting to the President proposed remedies in pursuit of reciprocal trade relations. For additional information, please see USTR’s Federal Register notice."

December 9, 2024

Bisphenol S (BPS) part of polyethersulfone (PES) plastic has been banned under California Proposition 65 effective December 2024

Bisphenol S (BPS) (CAS Number: 80-09-1) is part of polyethersulfone (PES) plastic, which is used to make hard plastic items such as, food utensils and bottles,and also used in synthetic fibers for clothing and other textiles such as, sportswear, socks and raingear. It's also used in epoxy glues and as a corrosion inhibitor, and it also may be in Shipping labels. BPS may also be used to make colors last longer in some fabrics. Consumer products marketed as “BPA-free” might contain BPS. It is a common replacement for bisphenol A (BPA) in polycarbonate plastics and epoxy resins.

Effective December 29, 2024 companies that well products with ANY levels of BPS must now provide wa proposition 65 warning as required by the current regulations. For more guidance on those please contact our office (www.swhlaw.com). OEHHA (the CA office that controls props 65 chemicals list and warnings requirements) has not yet established a “safe harbor level” for BPS. A safe harbor level is a threshold below which a business is exempt from Proposition 65 warning requirements. So as such testing is not going to suffice. Only a warning will work unless there is no detectable amount of BPS in the product which may be an nearly impossible threshold to meet.

We strongly suggest that brands look very closely at all their products for traces of BPS and the contact their suppliers for more details on whether any traces of BPS might be present in their products and to come with a legally sufficient warning strategy for all sales channels.

Effective December 29, 2023, the Office of Environmental Health Hazard Assessment (OEHHA) has added bisphenol S (BPS) to the Proposition 65 list as a reproductive toxicant (female reproductive endpoint). This listing was done via the “State’s Qualified Experts” mechanism, based on the Developmental and Reproductive Toxicant Identification Committee’s (DARTIC) determination that this chemical was clearly shown to cause female reproductive toxicity.

The warning requirement for significant exposures to BPS will take effect on December 29, 2024.

December 2, 2024

CPSC final vote on electronic certificates of compliance / conformity likely on December 18 2024

UPDATE 12/18/24 As predicted the CPSC commissioners voted to enact the proposed regulation (below) regarding certificates of compliance and/or conformity (aka General Certificate of Conformity and Children's Product Certificate). This applies to importers of complete bikes, bicycle and other off road helmets and class 1-3 ebikes along with any product intended for children under 13.

The one big change that was made is that rather than 12 months before the rule becomes effective its now 18 months (which the industry will need for sure) The 18 month countdown starts from the day the proposed rule appears in the Federal register (we assume within a week of 12/18/24). Therefore I expect that the rule will come into force about June 2026. CPSC's new eFiling program will apply to all imported consumer products subject to a mandatory safety standard, as set forth in the rule, including de minimis shipments. Of course as pointed out below there is no CPSC rule re UL testing etc for batteries on ebikes at this point (A de minimis shipment is a shipment below $800 that meets the requirements for the administrative exemption under the Tariff Act (19 U.S.C. 1321). De minimis shipments are limited to an aggregate value less than $800 per day by a single importer.) A 24-month effective date will apply to consumer products imported into a Foreign Trade Zone (FTZ) and subsequently entered for consumption or warehousing.

PRIOR POST:

Further to my last post here in Feb 2024 the Consumer Product Safety Commission (CPSC) in a notice issued today has finally reviewed all 47 comments made last December (2023) regarding its Supplemental Notice of Proposed rule making issued December 8 2023. I was one of the commenters and my two suggestions were agreed to by the CPSC.

First the CPSC agreed that there was no merit in their argument that all bicycle components (like stems or wheels) enumerated in 16 CFR 1512 (the old bike standard for human powered bikes and under 20 mph e bikes) required separate (or any) certificates of compliance for adult (intended for use by children over 12) components as 16 CFR 1512 was a complete bike standard and there was no way to use the standard to independently test component parts in cases where those exact or similar components were to be sold separately. This is because the 16 CFR 1512 standard only contemplates testing those components in the standard for the specific bike they are to be part of. This seemed like common sense but had to be pointed out to the Commission (as apparently the newbies at the CPSC got a bit over zealous). So that's good news. (see pages 26-26)

Also the Commission agreed to extending the effective (compliance date) from 3 months after passage (which is what they wanted in December 2023) to a minimum of 12 months after passage. Its will be 24 months for those who import from a "Foreign Trade Zone (FTZ)" (see page 15).

For just a copy of the proposed law itself without all the comments see this document.

The next step after the December 4 2024 meeting at CPSC is to have the CPSC commission members vote on the proposal on December 18 2024. I suspect it will pass "as is" and will go into effect for most importing bike companies / brands in December 2025 or January 2026. But there is A LOT of work to be done before December 2025 for companies selling complete (adult) bikes, and especially children's bikes (and components for children's bikes). Importers of components for bikes and ebikes are, for now, somewhat off the hook under this current proposal. (Provided there is no CPSC standard that pertains to the component)

A point to note here is that because there is no CPSC standard on ebike batteries at this point this certificates of conformity / compliance issue really does not affect that entire issue (which is also related to the de minimis rule). There is still federal legislation pending on the de minimis issue and the e bike battery issue.

Finally there is the issue of what the Trump administration is going to do with the CPSC, if anything. We of course will have to wait and see on that. But it appears that this new regulation will get passed before Trump takes office and the question of course is will the Trump Administration allow the rule to go into force in December 2025 or will it be delayed again. Just as a reminder the electronic certificates of compliance / conformity law (Consumer Product Safety Improvement Act; "CPSIA") was passed by Congress in 2008 (and signed by George Bush) and it has taken the CPSC 16 years to get around to finally coming up with a regulation to finally put that section of CPSIA into full effect.

September 4, 2024

Consumer Product Safety Commission (CPSC) fall update 2024

Federal law requires each agency to publish, twice a year, a regulatory agenda of regulations under development or review during the next year. 58 FR 51735. Agencies may combine this agenda with the regulatory flexibility agenda required under the RFA. The agenda required by Executive Order 12866 must include all the regulations the agency expects to develop or review during the next 12 months, regardless of whether they may have a significant economic impact on a substantial number of small entities. So with that backdrop we take a look at the Semiannual Regulatory Agenda proposed by the Consumer Product Safety Commission on August 16 2024.

The first thing we noticed is the absence in the Semiannual Regulatory Agenda (SRA) of any reference to the looming "electronic certificates of compliance" which we last reported on in Feb 2024. It was announced today (Sept 4 2024) that the "final" rule would be issued in 2025. No idea when it will be made effective but we suspect 3-6 months after issuance. This will have a huge effect on the bike industry depending on how 16 CFR 1512 is interpreted by the commission (if its viewed as complete bike regulation or a component regulation) and how our Feb 2024 comments are dealt with by the commission. (no word on that yet)

Also there is a lack of any information in the SRA related to "e-bikes" or "e bike batteries" as well. Don't forget the huge fanfare regarding this meeting in July 2023 and now, you guessed it, crickets from CPSC. We will keep you posted on the latest regarding the forgoing. But it does not look like a very active year for CPSC as it relates to bikes, e-bikes or e bike batteries. I guess we will have to wait for Congress to act.

August 14, 2024

Federal Trade Commission Announces Final Rule Regarding Fake Reviews and Testimonials

There is a lot in this new rule (adopted Aug 14 2024), and as always the devil is in the details. This is the main FTC announcement here and the full 163 page justification, selected outside comments and the actual rule (starting at page 153) here which we have yet to digest. The government is not paid by the word so we are not sure why this is so wordy. I guess anticipating fights with crafty private sector defense attorneys! As always the devil is in the details and the specific wording and interpretation of the rule by the FTC is key. Once of the issues of interest to us is bike and recreational product companies love to use "paid" athletes to post reviews about product (along with endorsements of the product on their private social media accounts like Instagram and the like). I am assuming that those people would be considered "agents" under the rule. (unfortunately the rule itself does not define "agent") Given that understanding this is the FTC's bullet point (one of many):

Insider Reviews and Consumer Testimonials: The final rule prohibits certain reviews and testimonials written by company insiders that fail to clearly and conspicuously disclose the giver’s material connection to the business. It prohibits such reviews and testimonials given by officers or managers. It also prohibits a business from disseminating such a testimonial that the business should have known was by an officer, manager, employee, or agent. Finally, it imposes requirements when officers or managers solicit consumer reviews from their own immediate relatives or from employees or agents – or when they tell employees or agents to solicit reviews from relatives and such solicitations result in reviews by immediate relatives of the employees or agents.

There is sure to be a thorough examination of product reviews and reviewers going forward as well as the process involved in making sure this rule is followed and we all know who is looking at this carefully...Amazon and other big retailers.

Hopefully in the coming weeks we will be adding more to this post above.

August 5, 2024

Analysis: CPSC's Amazon decision is a reminder to the industry

Originally Published August 1, 2024

(this story is reprinted with Permission from this original post)
Editor's note: Industry attorney Steven Hansen shared the following analysis of this week's administrative decision by the Consumer Product Safety Commission, which found that Amazon should be considered a distributor of the products it sells, and is therefore responsible for the safety of the products. Hansen's website is www.swhlaw.com.

This is a very critical administrative decision (read it here) by the Consumer Product Safety Commission. This case was brought by the CPSC against Amazon in July of 2021 and was just resolved this July 2024. I suspect Amazon will appeal this decision to a federal court as it's a big decision against Amazon.

What we find interesting and enlightening for our readers is two points.
First, Amazon argued before an Administrative Law Judge and the Commission that it was not a "distributor" and thus bore no responsibility for the safety of the products sold under its "Fulfilled by Amazon" (FBA) program.

Secondly, this is a reminder to all distributors and retailers out there in consumer product land that the CPSC regulations place a legal recall obligation on all entities in the chain of distribution of the product. This means if the brand (in the USA) or the manufacturer (usually in Asia and usually will not initiate voluntary recalls) does NOT conduct a recall, then you (the distributor, importer or even main retailer) may have the obligation to do so as the next entity down the chain.
The recall obligation is generally when any product does not comply with a federal safety law (ie 16 CFR 1512 et seq) or when the product may comply with a federal regulation but still contains a "substantial product hazard." Amazon knew the second point and so it just tried to argue it was NOT a distributor.

What we find interesting is that the Amazon case was filed about a year after California's watershed decision also held that Amazon was a "distributor" or "seller" in its FBA programs. (FYI the appeals court judge that wrote that opinion is now the Chief Justice of the California Supreme Court, if that tells you something).

Given what is at stake for Amazon expect this to be appealed and as all states and federal districts are not aligned on this issue for Amazon being a true distributor the district or judges where this appeal is heard will be critical.

May 13, 2024

Setting Consumer Standards for Lithium-Ion Batteries Act HR 1797 (April 2024)

UPDATE 5/16/24

So basically a day after I post this it passes through the House committee...next steps unclear..But as you know before bills can become law they must pass in both the Senate and the House.

May 15, 2024, 06:20 PM | 118th Congress, 2nd Session
Vote Question: On Motion to Suspend the Rules and Pass, as Amended
Setting Consumer Standards for Lithium-Ion Batteries Act
Vote Type: 2/3 Yea-And-Nay
Status: Passed

PRIOR POST

This bill was introduced on 3/24/23 and is still sitting in Congress for some reason. Pretty short and pretty simple. All it does is tell CPSC to get rolling on a regulation with in one YEAR of the passage of this law. As of 4/5/24 it was placed on the Union Calendar, Calendar No. 370 by the House. It is now sitting in the House Committee on Energy and Commerce. The companion bill in the Senate is S 1008.

H. R. 1797

A BILL
To require the Consumer Product Safety Commission to promulgate a consumer product safety standard with respect to rechargeable lithium-ion batteries used in micromobility devices, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Short title.
This Act may be cited as the “Setting Consumer Standards for Lithium-Ion Batteries Act”.
SEC. 2. Consumer product safety standard for certain batteries.
(a) Consumer product safety standard required.—
(1) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act, the Consumer Product Safety Commission shall promulgate, under section 553 of title 5, United States Code, a final consumer product safety standard for rechargeable lithium-ion batteries used in micromobility devices, including electric bicycles and electric scooters, to protect against the risk of fires caused by such batteries.
(2) INCLUSION OF RELATED EQUIPMENT.—The standard promulgated under paragraph (1) shall include requirements with respect to equipment related to or used with rechargeable lithium-ion batteries used in micromobility devices, including battery chargers, charging cables, external terminals on battery packs, external terminals on micromobility devices, and free-standing stations used for recharging.
(b) CPSC determination of scope.—In promulgating the standard under subsection (a), the Commission shall determine the types of products subject to the standard and shall ensure that such products are—
(1) within the jurisdiction of the Commission; and
(2) reasonably necessary to include to protect against the risk of fires.
(c) Modifications.—At any time after the promulgation of the standard under subsection (a), the Commission may, through a rulemaking under section 553 of title 5, United States Code, modify the requirements of the standard.
(d) Treatment of standard.—A standard promulgated under this section, including a modification of such standard, shall be treated as a consumer product safety rule promulgated under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058).