By Annys Shin
Washington Post Staff Writer
Friday, August 29, 2008
In the first test of its powers under a sweeping product-safety law, the Consumer Product Safety Commission yesterday directed retailers to pull bassinets linked to the deaths of two infants off store shelves and give customers a refund.
The directive came on the heels of a warning the CPSC issued to parents Wednesday night to stop using "close-sleeper/bedside sleeper" bassinets made by Simplicity of Reading, Pa. The CPSC acted after a 6 1/2 -month-old girl from Shawnee, Kan., was strangled to death Aug. 21 when she got caught in the bassinet's metal bars. The agency said 900,000 of the bassinets are in circulation.
The CPSC said it issued the warning and turned to retailers to pull the bassinets because SFCA, the firm that bought Simplicity's assets in April, refused to cooperate and issue a recall.
SFCA, which bought Simplicity's assets at auction, is an affiliate of Blackstreet Capital, a Bethesda private-equity fund with $88 million dollars under management. SFCA is chaired by prominent Washington banker Robert Pincus and its board is studded with political luminaries such as James A. Baker IV, a son of the former secretary of State; uber-lobbyist Thomas Hale Boggs Jr.; Ed Mathias, a partner and managing director of Carlyle Group; and Ed Rogers, a founder of the public affairs firm Barbour, Griffith & Rogers.
While the CPSC has the authority to mandate recalls, doing so takes time and as a result almost all recalls are voluntary.
Rick Locker, an attorney for SFCA, said the company is not responsible for products made and distributed by Simplicity, which is no longer operating, and that SFCA has fully cooperated with the CPSC. Because SFCA bought just Simplicity's assets, SFCA didn't take on legal responsibility for the products.
He added that SFCA bassinets on the market now are safe, as they are different than those involved in the two deaths. He criticized the warning, saying it didn't distinguish between safe products and the older unsafe ones.
"The lessons of the action is when a decision is made to act, accurate and timely information needs to be provided to retailers and consumers," Locker said.
The CPSC issued its warning about the Simplicity bassinets under a two-week-old law that allows the agency to alert the public more quickly. The law, which is the most sweeping reform of the nation's product-safety system in more than 20 years, was passed in response to last year's recalls of millions of lead-tainted toys.
"The agency didn't hesitate to use its new authority in this case, and it will not be shy about using this new tool to warn the public in the future when the health and safety of the public require this kind of immediate notice," CPSC spokeswoman Julie Vallese said.
However, the bassinet warning came nearly a year after another infant, a four-month-old girl from Noel, Mo., died in a Simplicity co-sleeper bassinet, prompting safety advocates to question why the CPSC didn't act sooner. The warning affects Simplicity 4-in-1 and 3-in-1 convertible bassinets, which have a similar design.
"The second death clearly could have been prevented," said Nancy Cowles, executive director of Kids in Danger, a Chicago-based advocacy group. "The parents bought the bassinet after the previous death. Had the CPSC acted, it simply would not have been for sale."
The family of the Kansas girl bought the bassinet in February at a Wal-Mart, said the family's attorney Charles Kelly.
Yesterday, Wal-Mart, Toys R Us, K-Mart, Big Lots, Target and JCPenney all agreed to recall the bassinets and provide customers a refund or store credit.
"We are working with the supplier and CPSC and are directing store managers to remove product identified in the CPSC press release from store shelves and initiating a register block to prevent sale," Wal-Mart said in a statement. "In addition, we are in the process of removing this product from sale at Walmart.com."
Even before the new law was passed, the CPSC had the power to warn the public about the potential hazard, said Don Mays, senior director of product safety for Consumers Union. In June 2007, the CPSC issued a safety alert about an all-terrain vehicle for children as young as 6 that had no front breaks. Mays said the agency could also have tried to persuade the company to do a recall.
CPSC's Vallese said the agency opened an investigation into the Simplicity bassinets after the first death but could not comment further about the agency's actions because the investigation is ongoing.
The Missouri girl died Sept. 29, while Simplicity was in the midst of recalling about 1 million cribs. That recall was the second involving the same crib and was prompted by 55 incidents, including seven entrapments and the death of at least two infants. In June 2007, Simplicity recalled 40,000 units of another crib.
Legal experts said SFCA is not obligated to comply with the CPSC's request to do a recall because of the way its purchase of Simplicity's assets was structured.
"The reason to buy assets is to not incur liabilities," said Barry Barbash, a partner and head of the asset management group at law firm Willkie, Farr & Gallagher.