State Tort Claims Not Preempted by Manufacturer's Voluntary Product Replacement

Federal Preemption not Available to Manufacturer Who Complies with CPSC Volutary Replacement Plan

In re Mattel, Inc., __F. Supp. 2d __, 2008 WL 5147996 (C.D. Cal., December 8, 2008)

CONSUMER PRODUCT SAFETY COMMISSION REGULATIONS DO NOT PREEMPT SATE LAW CLASS ACTIONS BY CONSUMERS

Mattel toys were found to have excessively high levels of lead paint and Mattel magnets were found to be small enough to swallow. Mattel voluntarily replaced the problem products as part of a CPSC voluntary corrective action plan.

Subsequently, a class action was filed by consumers over the allegedly defective toys and Mattel moved to dismiss on the grounds the state tort claims were preempted by the CPSC regulation.

The California District court disagreed, noting that the regulation in question on its face provided that participation in a voluntary corrective action plan was not “legally binding” nor conclusive regarding the scope of corrective action even the CPSC might seek. The court felt that taking the defense argument to its logical conclusion would essentially allow manufacturers to choose the remedy least burdensome for placing potentially dangerous products into the stream of commerce. Preemption would deny harmed parties input while giving the agency little incentive to ensure an adequate solution was obtained.

Accordingly the court denied the manufacturer's motion to dismiss and allowed the class action to go forward under state tort theories.

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