Common Law - The FindLaw Consumer Protection Law Blog

June 2010 Archives

AT&T iPad Data Plan Leads to Class Action Suit

A class action lawsuit has been filed on the grounds of fraud and misrepresentation against AT&T and Apple by three customers in San Jose, California. It has further been amended to including additional iPad customers who wish to join the class. The lawsuit was filed by the law firm of Lieff Cabraser Heimann & Berstein, which specializes in consumer class action cases.

The lawsuit was filed in United States District court by customers who feel they were misled after AT&T dropped its unlimited 3G data plans after the iPad was released. The plans were available at the time the iPad was first made available to the public. The lawsuit claims Apple and AT&T “deceptively promoted” the unlimited plans despite the fact that they were planning on discontinuing the plans in favor of limited data usage plans.

Limited or capped data plans have been a hot button issues among consumers who expect to use a large amount of bandwidth on their new devices. On June 2nd, 2010, AT&T lowered the prices of their data plans offering a $15 plan for 200 megabytes of data per month and a $25 plan for 2 gigabytes of data per month. Previously, AT&T offered a single plan with unlimited monthly data for $30. The move has customers and consumer advocates arguing that the move constitutes an illegal bait and switch technique. Bait and switch is a tactic when a company entices buyers by offering a given product or service but instead forces them into buying a different option which they find less appealing.

The New Times quoted one customer who said, “I would have never purchased a 3G-capable iPad if I knew Apple and AT&T were planning on suddenly taking away from the the freedom to opt in and out of an unlimited data plan at my choice.”

As of the time of this posting, neither AT&T nor Apple have publicly commented on the suit.

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GSK Diabetes Drug Avandia May be Unsafe, Near Recall

Ahh, coffee, it gives you that get up and go. But Magic Power Coffee, which promises a whole lot of get up and go, is not only possibly ineffectual, but potentially dangerous, according to the FDA. Magic Power Coffee is an instant coffee with a bit more than cream and sugar in it. The FDA says that the active ingredient in the supplement is hydroxythiohomosildenafil, a chemical which is similar to sildenafil, the active ingredient in Viagra. But unlike Viagra, a drug tested by the FDA and prescribed in the appropriate dose by a physician, this cuppa coffee has no such safeguards and may have serious side effects.

According to ABC News, the FDA has asked Magic Power Coffee to begin a voluntary recall, but the company declined. "The active ingredient in Magic Power Coffee is not approved by the FDA and poses a Class I danger, that is, it could result in serious harm to health and death," FDA spokesman Ira Allen told ABC. The FDA is asking consumers to stop using the Magic Coffee product immediately. The FDA says the instant coffee contains a chemical that could interact with some prescription drugs to significantly lower blood pressure, leading to dizziness or lightheadedness. At this time there have been no reports of serious injury from the coffee.

What is all the caffeinated buzz about? The coffee's purveyors promise more than a jolt from their drink, they claim it will enhance libido (and the mechanics) in both men and women. But if the active ingredient is similar to the one proven to work in Viagra, what is the problem? Dr. Karen Boyle, urologist and specialist in fertility and sexuality, told ABC a lack of ensured purity of the product, a lack of consistency in the amounts consumed and a lack of warning about potential drug interactions: all potentially unsafe conditions. The most dangerous side effect is, quite simply, death. Like the chemical in Viagra, the chemical in the Magic Coffee can interact with nitroglycerine, a medication commonly used by heart patients, causing an alarming drop in blood pressure.

"I'm appalled that the company hasn't followed the FDA's suggestion to recall," Boyle said. "They're not being honest about what's in the product, which is scary."

According to ABC, the FDA does not have the same kind of oversight on dietary supplements as it has with drugs, and they do not go through the same rigorous approval process. Just because a product is labeled "all natural," does not mean it is harmless. Dr. Boyle suggests if you are looking for a herbal enhancement, try a single ingredient such as the herb Yohimbine rather than a blend. It has not been proven to be very effective, but at least you can be sure of exactly what and how much you are getting. If not, well, there's a pill for that.

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Toyota Recalls Lexus HS250h Hybrids, Stops Sales

The safety issues and recall troubles are not yet over for Toyota. On June 25, the Japanese car company announced it was recalling and halting delivery on its new 2010 Lexus HS250h hybrids. This time the issue is not one of acceleration, but concern that fuel might leak after a crash.

USA Today reports that the National Highway Traffic Safety Administration says that Lexus failed to meet its fuel leakage standard in a test that involves rotating the vehicle after crashing it. Even more troubling for the company, and owners of the Lexus hybrid, is the fact that Toyota has not yet come up with a solution for the fuel leakage problem. The company said in a statement, "At the present time, Lexus has not identified a remedy to address this issue, but it is working hard to do so promptly and will notify owners as soon as one is developed."

The details of exactly which Lexus models are effected by this recall are as follows:

  • Vehicle Make / Model: LEXUS / HS
  • Model Year(s): 2010
  • Manufacturer: Toyota Motor North America, Inc.
  • Mfr's Report Date: JUN 25, 2010
  • Component: Fuel System, Gasoline: Storage
  • Potential Number of Units Affected: 17,000

Since no remedy has yet been identified by Toyota, it is also unclear at this point when the recall will start. USA Today reports until then, as required by federal law, dealers will not deliver any new vehicles in their inventory that are covered by this recall.

"Even though our own testing of the Lexus HS250h shows full compliance with federal fuel system integrity standards, we are working intensely to duplicate the noncompliance issue that the NHTSA identified and to determine the reason behind the different test results," Steve St. Angelo, Toyota chief quality officer for North America, told USA Today.

Owners of this model Lexus with concerns or questions can contact the NHTSA Vehicle Safety Hotline at: 1-888-327-4236 (TTY 1-800-424-9153), or go to HTTP://WWW.SAFERCAR.GOV.


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New Study: Botox May Reduce Ability to Feel Emotions

Most of us know about Botox, the cosmetic drug used to freeze muscles, thus eliminating lines and furrows on the face. But if you can't show emotion, can you still feel it? A new study says limiting your facial expression of emotion may also effect your ability to feel that emotion.

According to WebMD.com, research by Joshua Ian Davis, PhD, a term assistant professor in the department of psychology at Barnard College in New York City, shows at least some correlation between making an expression and feeling emotion. “For at least some emotions, if you take away some part of the facial expression, you take away some of the emotional experience,” says Dr. Davis.

Here is what the study found: participants who received Botox injections self-reported less emotional response to some emotional video clips, and as a result, did not feel their emotions quite as deeply as their control group counterparts. Before you are tempted to make a facial expression of horror, please note that the dampened emotional reaction was related to only mildly emotional clips, which could suggest that the strength of the emotional impulse may make a difference.

Davis noted that his initial work needs further study.

Some experts told WebMD that the study was interesting but preliminary, and conclusions should not yet be drawn. Representatives of Allergan Inc., manufacturer of Botox go as far as calling media coverage of the study inaccurate. According to an email from Allergan spokesperson Kellie Lao to WebMD, “There is no conclusive evidence in the medical literature that supports the hypothesis that preventing a facial expression will decrease emotional experience, and this study’s findings does not support the theory that facial expression is necessary to trigger an emotional experience."

Despite these reassurances, if you are still worried that Botox might affect your feelings, but still want to plump those facial wrinkles, here is a bit of good news. Subjects in the study who had their facial lines filled with Restylane had no notable changes in their emotions, either on their face, or in their head.

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FDA Regulation of CT Scans Urged

This week, an editorial in the New England Journal of Medicine is highlighting the growing concern over CT scans. These scans give doctors an extremely sharp x-ray picture which allows them to quickly rule in or out many types of injury or disease. However, now experts are saying that Congress should give the FDA oversight on the use of CT scans due to the concern over the risks of increased exposure to radiation.

A combination of patients asking for tests they might not need and doctor's reliance on the scans has increased the use of the scans and therefore American's exposure to radiation. According to the Associated Press, 10 percent of the U.S. population gets a CT scan, and use of this imaging is growing more than 10 percent per year. "That's really the area we should focus on," said the author of one of the Journal articles, Dr. Rebecca Smith-Bindman. She is a radiologist at the University of California at San Francisco on temporary leave to do radiation research at the National Cancer Institute.

Not only is Smith-Bindman concerned with the increase in exposure to radiation experienced by the public in general, but the accidental overdoses of intense radiation to individuals, as well. The editorial in the New England Journal concerned one patient who received an radiation overdose from the brain-perfusion scans given to her. According to the report by USA Today, after the patient complained of hair loss and confusion, the doctors realized she had received 10 times the normal dose of radiation. Smith-Bindman says in that case, doctors could have ordered a routine head CT that exposes patients to one-tenth as much radiation as normally found in the brain-perfusion scans.

To help the public at large, Congress should set clear standards by giving the FDA authority to regulate how CT scans are used, Smith-Bindman says. She points to a 1992 law regulating mammograms, for example. According to Smith-Bindman, this law has reduced radiation exposure and helped women everywhere get the same high-quality care.

One foreseeable problem with the regulation by the FDA over CT scans though, is the scope. Dr. David Brenner of Columbia University Medical Center points out to USA Today that mammograms are used for a single purpose. CT scans have dozens of uses, covering everything from detecting cancer to examining the heart. This will make it far harder for the FDA to develop useful and effective guidelines that will not interfere with the Doctor's decisions regarding the wide variety of uses for the CT scan.


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Representatives of the Subway Sandwich restaurant chain in Illinois are apologizing for a salmonella outbreak that sickened more than 97 people in 28 counties across that state from mid-may to the early part of June. Although the exact cause of the contamination has not been pinpointed, the chain quickly replaced all its lettuce, green peppers, red onion and tomatoes from restaurants in Illinois as soon as it became aware of the contamination.

Subway, and its parent company Doctor's Associates Inc., apologized to the public. According to a report by Reuters, Subway issued a statement that said, "We are truly sorry for the difficulty this situation has caused you, our customer, and are working diligently to solve this mystery and to regain your trust."

Despite the quick response and the public mea culpa, the Subway sandwich spots have not been able to entirely avoid litigation. According to AboutLawsuits.com, Chicago resident Alicea Bush-Bailey is suing after she became sick from eating lunch at a Subway in Aurora Ill. Bush-Bailey's attorney says she was so sick by that evening, she was admitted to the ER for severe dehydration, abdominal pain and nausea.

Bush-Bailey is suing Subway for negligence, strict liability and breach of warranty. The lawsuit seeks an unspecified amount of compensation for her economic loss and physical injury.

AboutLawsuits.com reports that this is the second food poisoning outbreak tied to Subway restaurants in Illinois this year. Just this past March, about 78 people became ill and another 11 were hospitalized during a shigellosis outbreak linked to a Chicago-area Subway.

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As previously discussed in a prior post on this blog, the City of San Francisco has been moving toward passage of an ordinance that would require retailers of cell phones to post the "specific absorption rate" or SAR of each cell phone for sale. The SAR is the amount of radiation absorbed by the body when the phone sends a signal to the network. The maximum SAR level set by the FCC is currently 1.6 watts per kilogram of body tissue.

According to the Los Angeles Times, on June 23, in a 9-1 vote, the S.F. Board of Supervisors passed the cell phone right-to-know ordinance. "Government agencies and scientific bodies in the European Union and Israel have recognized the potential harm of long-term exposure" to radiation from cellphones and have issued warnings about their use, especially by children," the ordinance states.

But do they? A study by the World Health Organization published just last month found that overall there was no increase in the risk for two types of brain tumors, glioma and mengioma with cell phone use. However, the Times reports the study also found that there were "suggestions of an increased risk of glioma at the highest exposure levels," but said a direct causal link had not been made. The study covered cell phone users in 13 countries. It did not include the United States.

An another cellphone related study by the British Medical Journal was announced this week. According to PBS, children whose mothers lived near cell phone towers while they were pregnant did not have an increased risk of developing cancer at a young age.

In San Francisco, retailers will have to make changes, regardless of the new findings. The Times reports chain stores must comply with the ordinance by Feb. 1, 2011. All other cellphone retailers have until Feb. 1, 2012. Fines will range from $100 for a first violation to $500 for the third violation and all subsequent violations within a year.

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CPSC Announces Major Drop Side Crib Recall

The constant barrage of drop side crib recalls noted on this blog reached a new high today, June 24, 2010, as the CPSC announced a major seven manufacturer recall of more than two million drop side cribs. All of the firms involved in the voluntary recall will provide consumers with repair kits to fix the cribs. The CPSC warns consumers not to attempt to fix any drop side cribs with "homemade remedies."

The cribs included in today's recall are from the following manufacturers:

Although the drop side cribs are convenient because the sliding side makes it easier to lift a child out, the detachment of the drop side portion of the crib makes a space in which an infant or toddler can become trapped and strangle or suffocate. The CPSC has received many reports of infant deaths caused in this way.

According to the announcement by the CPSC, the Juvenile Products Manufacturers Association (JPMA) has also launched a new crib safety initiative. The listed manufacturers are providing free drop-side crib immobilization kits to prevent the drop side from detaching, plus replacement hardware and assembly instructions for cribs manufactured by participating firms. These materials are available free to any consumer by request.

The firms involved in today’s crib recall are providing immobilization devices or other remedies as part of JPMA’s crib safety initiative. Consumers can visit JPMA’s website, www.cribsafety.org, for a list of participating manufacturers and for downloadable materials about ensuring that children have a safe sleep.

The CPSC would like to remind parents and caregivers that the safest place for a baby to sleep is in a crib or bassinet depending on their age. If your crib has been recalled or has missing, broken or loose parts, find an alternate safe sleep environment intended for a baby. If your baby is less than six months old and is not yet able to push up to his/her hands and knees, you can put your baby to sleep in a bassinet. Make sure your bassinet has not been recalled. To see a list of recalled bassinets, click here.

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New Tobacco Laws Go Into Effect; More to Come

Provisions of a new US law signed by President Obama last year have gone into effect, including banning the branding of cigarettes as "light" or "mild or "low-tar." The law also bans tobacco sponsorship of entertainment events including sporting competitions and concerts. In addition, the law restricts giving away free samples.

Over the past two decades the FDA has made major steps in reining in cigarette companies, by limiting marketing in general, prohibiting marketing to children, banning fruit flavored cigarettes, increasing the size of warning labels on smokeless tobacco and now removing labels that could give smokers the impression that some cigarettes are safer than others.

However, some say that the tobacco companies have already found a way around the many of the new regulations. New color-coded packs have come out that label different packs as gold and silver. "With a wink and a nod, the tobacco industry has found new ways to continue their deceptive marketing practices to circumvent the new regulations," said Charles Connor, president of the American Lung Association. "For example, they must drop the word 'light' in their packaging, but have already made it clear to their customers that if they want lights, they just need to look for a package in a specific color, such as gold."

Marlboro is already under pressure from the FDA, after Marlboro released an advertisement that said, "Your Marlboro Lights pack is changing. But your cigarette stays the same. In the future, ask for 'Marlboro in the gold pack." Depending on the perspective, this could be either proper informative information, or a deliberate attempt to defy the regulations.

In the future, the FDA tobacco regulators may take even more aggressive steps against the tobacco companies. The law does not allow a total ban on tobacco or the addictive ingredient nicotine, but it does allow the FDA to regulate the nicotine content. The former FDA Commissioner said in an interview with The Associated Press that the agency could lower nicotine to non-addictive levels. "The tobacco industry knew 40 years ago that there was a threshold below which people would quit...Reducing the level of nicotine in cigarettes will change cigarette smoking as we know it. It is the ultimate harm reduction strategy."

Meanwhile, several tobacco companies have filed suit, claiming that the restrictions on advertising violate free speech rights. The case is currently in limbo in federal appeals court. A federal judge recently upheld the majority of the restrictions, but the FDA and the tobacco companies appealed parts of the ruling.

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Not So Happy: McDonald's Sued Over Happy Meal Toys?

It was only a matter of time after the County of Santa Clara, California, announced it was considering banning the toys offered with McDonald's Happy Meals, that someone would bring suit. On June 22, The Center for Science in the Public Interest announced that it had served notice on McDonald's Corporation of its intent to sue over what it calls "deceptive marketing" to kids by giving away toys with fast food.

Echoing the concerns of the California lawmakers, the CSPI says the practice of marketing unhealthy food to kids with the use of toys is unfair. According to CNN.com Money, in its notice letter to the hamburger giant, CSPI says that McDonald's toy-related promotions violate state consumer protection laws in four states and the District of Columbia.

"McDonald's is the stranger in the playground handing out candy to children," CSPI's litigation director, Stephen Gardner, said in a prepared statement. "It's a creepy and predatory practice that warrants an injunction."

"We couldn't disagree more with the misrepresentation of our food and marketing practices," McDonald's spokesman William Whitman said, also in a prepared statement. "McDonald's is committed to a responsible approach to our menu, and our Happy Meal offerings. We have added more choice and variety than ever before, a fact that has been widely reported and recognized."

CPSI representatives do acknowledge that the real responsibly for teaching children healthy eating habits rests with parents. But, they add, the constant onslaught of goodies and sharp ads make a parent's job needlessly difficult. CNN reports that according to the Federal Trade Commission, in 2006, fast food companies spent more than $520 million on advertising and toys to market children's meals.

The letter from the CPSI gives McDonald's 30 days to agree to stop the practice before a suit is filed.

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Today, pharmaceutical company Pfizer, the world's largest drug maker, announced it is voluntarily pulling the drug Mylotarg off the market after ten years. The drug is used to treat a rare form of bone marrow cancer. It was initially approved in 2000 by the FDA, in an abbreviated approval process meant to get treatments for serious illnesses to market more quickly. Any drug approved under this process was required to undergo follow-up testing after it appeared on the market.

According to a report by Reuters, a recent follow up study on Mylotarg showed the drug, when added to chemotherapy, was not effective in extending the survival rate of patients with previously untreated acute myeloid leukemia. The FDA said in its statement that the study "raised new concerns about the product's safety," and that the drug "failed to demonstrate clinical benefit to patients enrolled in trials."

Reuters further reports that according to Pfizer, the trial also showed more deaths in the first couple months of treatment. The fatality rate was 5.7 percent for Mylotarg patients, compared with 1.4 percent without the drug, Pfizer said.

According to a report by Bloomberg, the FDA says Wyeth (the drug's original producer) began a required study designed to confirm Mylotarg’s benefits in 2004, four years after it won the conditional marketing clearance. The agency notes that this points up the need for more oversight on the follow-up studies necessary for the drugs pushed through on the accelerated approval process.

“We are disappointed that the study did not confirm the clinical benefit of Mylotarg,” said Mace Rothenberg, senior vice president of clinical development for Pfizer's cancer business unit, in a statement released today.

Reuters writes pharmaceutical company Pfizer acquired the drug when it bought Wyeth in October 2009. Mylotarg's first-quarter sales were $8.8 million.

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SCOTUS to Hear Credit Card Rate Increase Case

The United States Supreme Court has agreed to review a class-action lawsuit brought against Chase Bank for changing credit-card interest rates without informing account holders who were late on payments by written notice. Chase appealed the case, Chase Bank USA v. McCoy, to the U.S. Supreme Court after a California federal court allowed the 2006 class-action lawsuit to proceed. The named plaintiff, James McCoy, accused Chase of violating the Truth in Lending Act when it raised his interest rates even after his account was closed due to being late on payments.

Chase believed that 2006 federal law did not require them to give notice of an increase in credit-card interest rates when a cardholder was late on a payment. They argued that the contracts that governed the agreement between Chase and the cardholders had language that specifically allowed Chase to raise interest rates when cardholders were late with payments or otherwise in default.

The decision in the case is expected to come after the Court opens its new session in October. The Court could allow financial penalties against Chase and require the reversal of interest rate increases made without proper notice. The impact will be restricted only to those who had their rates increased before 2009. That’s because as of last year, banks must give cardholders advance notice of rate increases due to default. The change came after the Federal Reserve Board amended the law last year and made it a requirement for banks to give advance notice for all rate increases, despite any language in the contracts between Chase and their cardholders.

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New Consumer Protection Agency Coming Soon?

Will American consumers get their long discussed, long fought-over Consumer Protection Agency? As the wrangling over the finance reform bill begins to draw to a close, some form of the new CPA appears in both the House and Senate bills. A joint committee of the two houses is expected to meet soon to reconcile the differing versions of the agency in each bill.

According to Reuters, the two versions of the agency are quite different. In the Senate version, the Federal Reserve would be in control. The independent Bureau of Consumer Financial Protection would be within and funded by the Fed. The agency would have power to write and enforce consumer protection rules, but the Fed would be charged with overseeing the agency. In the House version, the U.S. Consumer Financial Protection Agency would be an independent body. Its job would be to regulate mortgages, credit cards and other financial concerns.

One point of contention is the ability (or not) of the new agency to regulate auto dealers. According to the Chicago Tribune, this is a topic the joint committee must address. Lawmakers have been struggling with the exact role auto dealers play in auto financing and how much discretion they have to set terms, and thus potentially take advantage of consumers.

The dealers that assist in car loan financing say they're just middlemen in the process, helping buyers secure the best loans. Dealers say that abuses are rare and already covered by anti-fraud regulations enforced by state officials and the Federal Trade Commission. The dealers hope the new agency will not have oversight on their financing practices, something that they claim will just drive up prices for consumers.

Whether or not the new agency will have oversight responsibilities on car loan financing, they will have plenty to do stopping "unfair and deceptive" practices, especially in the credit card and payday loan sectors. The Chicago Tribune "On Money" column reported what FDIC Deputy Director, Robert W. Mooney, had to say on the subject. Mooney said the industry has left American consumers "angry." He believes stopping lender deception will be easier than stopping "unfair" practices, which are more pervasive and harder to prove.

According to the Tribune, the agency in the House bill has more teeth. The weaker Senate bill was passed after the financial services lobby fought hard to water down the House bill.

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SpaghettiOs Recall: Spaghetti Nos?

The Food Safety and Inspection Service of the USDA announced on June 17 that in conjunction with the Campbell Soup Supply Company, it would be recalling nearly 15,000,000 pounds of "Spaghetti Os with Meatballs." The reason for the Spaghetti Os recall is the possibility that they were underprocessed. There have been no reports of illness or injury at this time.

According to the FSIS press release on the recall, the problem was discovered during a routine inspection of the Campbell Soup Company warehouse. The following products fall under the SpaghettiOs recall:

  • 14.75-ounce cans of "Spaghetti Os" with Meatballs, bearing the identifying product code "U5" on the bottom of the can.
  • 14.75-ounce cans of "Spaghetti Os" A to Z with Meatballs, bearing the identifying product code "4N" on the bottom of the can.
  • 14.75-ounce cans of "Spaghetti Os" Fun Shapes with Meatballs (Cars), bearing the identifying product code "KS" on the bottom of the can.

To view the labels of these products, click here.

The products under the recall show an establishment number of "EST 4K," and the "Use By" date of June 2010 to December 2011 ink-jetted on the bottom of each can. These products were manufactured between December 2008 and June 2010 and distributed to retail establishments nationwide. The FSIS will provide a list of the retailers carrying the Spaghetti O's product on their website. To visit, click here.

According to a report by KTLA News, Campbell's has said a cooker at one of the company's plants in Texas malfunctioned, leaving the meatballs undercooked.

Consumers with questions about the recall can call Campbell's Hotline at (866) 495-3774.

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San Francisco Passes Cell Phone Radiation Levels Law

As previously discussed in a prior post, San Francisco authorities have been considering whether or not to pass a city ordinance requiring cell phone retailers to post information for the public about which cell phones emit the most radiation. As of June 16, the city is one step closer to putting that ordinance into effect.

According to a report by the Associated Press, the San Francisco Board of Supervisors voted 10-1 to give preliminary approval to the proposed ordinance. Specifically, all cell phone retailers within San Francisco would be required to post the "specific absorption rate" (SAR) for each phone they offer for sale.

The FCC, along with the FDA, has already determined what it says are safe limits for exposure to radiation. These limits are calculated in terms of the SAR. That rate signifies the amount of radio frequency energy a person absorbs into his or her body and brain when talking on a cell phone. Currently, the FCC requires that cell phone manufacturers ensure their phones are at or below a SAR level of 1.6 watts per kilogram of body tissue.

The AP reports that Supervisor Sophie Maxwell, chief sponsor of the legislation, says it's about "helping people make informed choices." However, representatives for the cell phone industry say it will merely confuse consumers, possibly misleading them into believing some phones are safer than others.

The Cellular Telecommunications and Internet Association, a trade group representing cell phone companies, has said in the past that they believe the current scientific evidence shows that cell phones do not pose any health risk to users.

San Francisco Mayor Gavin Newsom is expected to sign the legislation into law after a 10-day public comment period.

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The CPSC is attempting to take a proactive approach to the on-going threats that corded window coverings pose to young children. On June 17, the Commission announced that they will act in cooperation with Health Canada and the European Commission’s Directorate General for Health and Consumers to address this problem.

According to the CPSC, this is the first time that the three agencies have joined together to attempt to set world-wide safety standards on a specific product. The agencies will ask for "strong and comprehensive international safety standards on window coverings from manufacturers and standards organizations."

The CPSC has recalled millions of corded window coverings since December 2009. The last recall reported on this blog came just one week ago and covered Roman and roller shades, as well as roll-up blinds, sold at Ikea stores throughout the United States. The recalls have been made in response to reports of strangulation and near strangulation of children becoming entangled in the cords. In the U.S., there have been 120 reported fatalities and 113 non-fatal incidents related to corded window coverings since 1999.

The same problems have plagued consumers in Canada and Europe. The CPSC reports that Health Canada has received notice of 28 strangulation deaths and 23 near-strangulations linked to corded window coverings since 1986. In seven Member States of Europe, 90 children were reported to have visited hospital emergency departments for injuries caused by corded window coverings in 2002. More recently, at least six children in Europe have died from corded window coverings since 2008.

The Commission now recommends that parents and caregivers use cordless window coverings in homes where children live or visit.

To report a dangerous product or a product-related injury, consumers may call CPSC's Hotline at (800) 638-2772 or CPSC's teletypewriter at (301) 595-7054. Consumers can obtain recall and general safety information by logging on to CPSC's Web site at www.cpsc.gov.

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J&J Now Faces Lawsuit over Tylenol Recall

As if Johnson & Johnson did not have enough problems stemming from the recall of its products manufactured by McNeil Consumer Healthcare, they are now facing a lawsuit over the refunds they have offered to placate consumers. The refunds offered are not adequate, according to a suit filed last month in federal court in Philadelphia by three plaintiffs. The suit is seeking class action status to include anyone who purchased J&J children's medicines from at least December 2008, to the present.

According to the Dow Jones Newswires, the suit claims that only "select consumers" who purchased the recalled children's Tylenol, Motrin, Benadryl and Zyrtec are receiving a refund or a coupon for a free replacement when the product becomes available again. The complaint claims that such a coupon is worthless to consumers as McNeil is currently not manufacturing such drugs and there are no guarantees that consumers would even want to purchase a McNeil product at "some uncertain future date." The suit seeks cash refunds, and that these should be offered to more people than those eligible under the current program.

At this time, only customers who can provide the numbers listed on the product they purchased may apply for a refund or coupon. The Dow Jones Newswires write that Donald Haviland, attorney for the plaintiffs, said the refunds also should be extended to people who bought McNeil products but had already disposed of the bottles at the time of the recall.

"People paid cash," said Haviland. "They didn't get what they paid for. They should get their cash back." Mr. Haviland's wife is one of the three named plaintiffs in the suit.

Spokesmen and a spokeswoman for J&J and its McNeil McNeil Consumer Healthcare unit couldn't be reached for comment as of last Friday.

Consumers seeking a refund or coupon can fill out forms on J&J's website, www.mcneilproductrecall.com.

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Johnson & Johnson allegedly used undercover shoppers in a "phantom recall" of Motrin tablets.

After last April's recall of children’s Tylenol, Motrin, Zyrtec and Benadryl, facts are emerging that show that Johnson & Johnson’s McNeil Consumer Healthcare attempted to mislead federal regulators in 2008.

According to documents obtained by Bloomberg, Johnson & Johnson sent “secret shoppers” to stores as part of an unpublicized recall of Motrin tablets. McNeil told the FDA that it had hired secret shoppers to buy samples from thousands of stores. According to the FDA, McNeil said it was only sampling Motrin tablets from the stores as a sort of quality control. However, according to the documents recently obtained by Bloomberg, shoppers were actually buying the entire inventory of Motrin, while attempting to fly under the FDA radar.

While Colleen Goggins, Johnson and Johnson’s consumer group chairman was testifying before Congress that the company had not intended to mislead anyone, recently uncovered emails suggest otherwise. The emails were exchanged between the company and a private contractor, Inmar, Inc. In the emails, Inmar is encouraged to keep their identity and mission secret, for fear of drawing attention of regulators. This effort “may draw suspicion to what we are doing,” said an email from Inmar to McNeil.

Representative Edolphus Towns called the move a “phantom recall.”

“These documents are extremely troubling ... We can’t tell where the spin ends and the truth begins,” Towns said in a statement.

Bonnie Jacobs, spokesperson for McNeil, disputed the FDA’s position:

“The FDA was kept fully informed of McNeil’s plans and actions throughout the process ... the objective was to remove the affected product ... with as little disruption and consumer confusion as possible,” said Jacobs.

Now McNeil is facing possible criminal penalties due to the Motrin recall.

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The CPSC announced on June 10 that it was expanding its original recall on Roman shades and blinds. That recall, originally announced in December 2009 applied to these types of window coverings due to the strangulation risk posed to young children who become entangled in the cords. Approximately 3,360,000 window coverings were recalled, including about 790,000 Roman blinds in November 2008 and August 2009, and about 533,000 roller blinds October 2009.

The new IKEA recall covers the roller, Roman, and roll-up blinds sold by that company. The types of blinds covered pose several related threats as described by the CPSC:

Roller Blinds: Strangulations can occur if the blind's looped bead chain is not attached to the wall or the floor with the tension device provided and a child's neck becomes entangled in the free-standing loop.

Roman Blinds: Strangulations can occur when a child places his/her neck between the exposed inner cord and the fabric on the backside of the blind or when a child pulls the cord out and wraps it around his/her neck. An additional hazard exists when the roman blind has a continuous looped bead chain that if not attached to the wall or floor, which poses a strangulation hazard to children.

Roll-up Blinds: Strangulations can occur if the lifting loops slide off the side of the blind and a child's neck becomes entangled on the free-standing loop or if a child places his/her neck between the lifting loop and the roll-up blind material.

The Commission has received reports of strangulation and near strangulation involving Roman blinds.

The recall applies to all roller blinds that do not have a tension device attached to the bead chain, all Roman blinds and all roll-up blinds. The blinds were sold at IKEA stores nationwide from January 1998 through June 2009 for between $5 and $55.

Consumers are asked to immediately stop using the roller blinds that do not have a tension device attached to the chain, all Roman blinds and all roll-up blinds and return them to any IKEA store for a full refund. In a previous recall, IKEA reminded consumers who have roller blinds with a tension device attached to the bead chain to make sure the tension device is installed into the wall or floor. If consumers have difficulty installing the tension device, they may contact IKEA for additional information.

For additional information, contact IKEA toll-free at (888) 966-4532 anytime, or visit the firm's website at www.ikea-usa.com.

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FDA Lacks Vision Needs Risk-based Approach

The Food and Drug Administration needs more resources as well as major changes, according to a new expert report released this week.

Experts say that the FDA lacks the vision to protect the U.S. food supply. The Institute of Medicine issued a critical report on Tuesday submitting that the FDA's ability to discover threats to and prevent outbreaks of foodborne illnesses are hampered by impediments to efficient use of its limited resources. Further, the FDA's piecemeal approach to gathering and using information on risks presents further problems.

The Institute of Medicine believes the FDA should implement a risk-based approach to direct appropriate amounts of resources and attention to high risk areas and increase the chances of catching problems before they turn into widespread outbreaks.

Committee chair Robert Wallace, said that the "FDA uses some risk assessment and management tactics, but the agency's approach is too often reactive."

Recent major outbreaks, involving produce including tomatoes, lettuce, spinach, peppers and peanuts, have resulted in deaths and have been a source of major controversy among consumers.

The report also suggests establishing a federal centralized food safety data center to collect information and conduct rapid assessments of food safety risks and solutions. This would be a step toward consolidating food safety activities within a single agency, which many individuals and organizations have called for.

The Institute of Medicine also submits that the FDA should consider delegating food facility inspections to the states after creating national standards for the reviews. This type of risk-based approach could increase the quality of inspections and eliminate duplication of effort, the committee said.

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In a letter dated May 26, the FDA laid out serious warnings to pharmaceutical company Pfizer Inc. over its continued lack of action after patients reported problems with the company's drugs already on the market. Citing some of Pfizer's best known products such as Viagra, Lipitor and the seizure medicine Lyrica, the FDA warning stated the drug company had not properly documented or investigated reported problems with its approved medications.

According to a report by Reuters, the letter came from Ronald Pace, the director of the FDA's New York office. The letter said, "FDA expects drug manufacturers to establish and implement reasonable mechanisms to assure that all serious and unexpected experiences are promptly recorded and investigated." The patient reports "contained serious and unexpected adverse events... that were not submitted until they were identified during the FDA inspection," Pace wrote. Efforts to fix the problem "have been shown to be ineffective."

In the past, Reuters reports, the pharmaceutical company has said the problems in the lack of reporting were the fault of a new computer system and a failure to train the staff properly. Pfizer said it would improve training, update its user manuals and take additional steps. The FDA now says these actions were inadequate.

A specific example cited by the FDA regarding on-going reporting issues concerns one of Pfizer's best known drugs, Viagra. Viagra and similar medications are now known to cause serious visual problems, including blindness. However, Pfizer avoided reporting cases related to the drug within the FDA required 15-day deadline "by misclassifying and/or downgrading reports to non-serious without reasonable justification."

In a company statement, Pfizer said it would work with the FDA to satisfy the agency "and to assure optimal surveillance and reporting of post-marketing adverse events."

Reuters reports Director Pace's letter also stated that a failure to fix the problems identified by the agency could result in legal action without notice and the FDA might also delay action in approving the company's pending drugs, among other penalties.

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Yo No! CPSC Recalls Kid's Pirate Beds

On June 8 the CPSC in conjunction with Bayside Furnishings, of San Diego, Calif., announced the voluntary recall of the company's "Pirates of the Caribbean" Twin Trundle Beds. Consumers are asked to stop using the product immediately, unless otherwise instructed. This product is under recall because the headboard has a storage bin that poses an entrapment hazard to young children. CPSC received one report of a 4 year-old boy whose head became entrapped in the opening of the storage bin.

The recalled beds are the Pirates of the Caribbean Twin Trundle Beds. The preassembled headboard has a brown wood base with decorative carvings, three open storage compartments, a storage bin and a mast. The storage bin located in the headboard, measures approximately 39 inches long, 6 1/2 inches wide and 24 inches deep. The "Pirates of the Caribbean" trademark is embossed on a metal plate inside the headboard. The name and address of the manufacturer, model number, manufacture date and "Made in China" is printed on a label affixed to the inside of the mattress frame side rails.

The beds were manufactured in China and sold exclusively at Costco stores nationwide from January 2006 through January 2010 for between $700 and $1,400.

Consumers are asked to immediately stop using the headboard storage bin and contact the firm to receive a free repair kit that will permanently close the headboard storage bin. The repair kits will be mailed to consumers in approximately 4 to 6 weeks. For additional information, consumers may call Bayside Furnishings toll-free at (877) 494-2536 between 8:30 a.m. and 4:30 p.m. PT, or visit the firm's website at www.baysidefurnishings.com.

CPSC is still interested in receiving incident or injury reports that are either directly related to this product recall or involve a different hazard with the same product. Please tell contact the CPSC by visiting https://www.cpsc.gov/cgibin/incident.aspx.

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Chrysler has announced a massive recall of its minivans and Jeep Wranglers in the United States, as well as abroad, after discovering potential wiring and brake problems. The recall includes 600,000 vehicles in the United States and 100,000 overseas.

The recalled Jeep Wranglers come from model years 2006 to 2010. The company reports the front inner fender liners on Jeep Wranglers can rub against brake fluid tubes causing a brake fluid leak. According to the National Highway Traffic Safety Administration, this can lead to a partial brake failure. A total of 288,968 Wranglers are included in the recall.

Chrysler plans to notify individual owners and dealers about the recall and repairs which will be free of charge. The recall notification will likely be issued within a month.

The recall also involves Dodge Grand Caravan and Chrysler Town & Country minivans from the 2008 and 2009 model years. The minivans may have a wiring problem that can cause a fire inside the sliding doors which are a feature of these vehicles.  The wires may have been have improperly placed within the doors and could come into contact with the sliding door hinges. The hinges could then cut through the insulation, Chrysler and NHTSA said.

According to Chrysler, at this time, no injuries or accidents have been reported.

This is the second major recall within a week for Chrysler. Dodge Calibers and Jeep Compasses were recalled last week after discovering a potential issue with sticky gas petals. As we have reported in previous posts, Toyota has recalled millions of vehicles after discovering vehicles with the same issue.

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The Kellogg Company is in hot water, or perhaps, milk. They have reached a settlement with the Federal Trade Commission after claiming that Kellogg's Rice Krispies "helps support your child's immunity," with "antioxidants and nutrients that your family needs to help them stay healthy." The cereal maker, famous for popular commercial jingles such as "Snap Crackle Pop," had printed claims on their boxes indicating that their cereal was especially healthy. The FTC found that these claims were unsubstantiated.

This comes after Kellogg was fined by the FTC for claiming that Frosted Mini-Wheats had been clinically shown to improve kids' attentiveness by nearly 20%. The FTC has now prohibited Kellogg from making claims about any health benefit of any food unless the claims are backed by scientific evidence and not misleading.

After the Mini-Wheats incident, Kellogg promised not to make "claims about the benefits to cognitive health, process, or function provided by any cereal or any morning food or snack food unless the claims were true and substantiated." But the FTC says that less than a year later, Kellogg was making unsubstantiated claims about its cereal yet again. "We expect more from a great American company than making dubious claims not once, but twice that its cereals improve children's health," said FTC Chairman, Jon Leibowitz, in a press release, Thursday.

The FTC Commission voted 5-0 to modify the 2009 Mini-Wheats settlement. "As a trusted, long-established company with a presence in millions of American homes, Kellogg must not shirk its responsibility to do the right thing when it advertises the food we feed our children," said FTC Commissioner Julie Brill and Chairman Jon Leibowitz in a separate statement.

In the end, the settlement amounts to a slap on the wrist for a company the size of Kellogg, with a market cap of over $20 billion. The settlement does not constitute an admission of a law violation. When the Federal Trade Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $16,000.

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CPSC Recalls Maytag Dishwashers

The CPSC in conjunction with the Maytag Corporation announced today a voluntary recall of about 1.7 million Maytag dishwashers. According to the Commission, an electrical failure in the dishwasher’s heating element can pose a serious fire hazard. Consumers are asked to stop using the recalled dishwashers immediately, unless otherwise instructed.

According to the CPSC, the Maytag Corporation has received 12 reports of dishwasher heating element failures that resulted in fires and dishwasher damage, including one report of extensive kitchen damage from a fire. No injuries have been reported.

The recall includes Maytag®, Amana®, Jenn-Air®, Admiral®, Magic Chef®, Performa by Maytag® and Crosley® brand dishwashers with plastic tubs and certain serial numbers. The affected dishwashers were manufactured with black, bisque, white, silver and stainless steel front panels.

The brand name is printed on the front of the dishwasher. The model and serial numbers are printed on a label located inside the plastic tub on a tag near the left side of the door opening. Serial numbers will start or end with one of the following sequences:

SERIAL number STARTING with: NW39, NW40, NW41, NW42, NW43, NW44, NW45, NW46, NW47, NW48, NW49, NW50, NW51, NW52, NY01, NY02, NY03, NY04, NY05, NY06, NY07, NY08, NY09, NY10, NY11, NY12, NY13, NY14, NY15, NY16, NY17, NY18, NY19

OR SERIAL number ENDING with: JC, JE, JG, JJ, JL, JN, JP, JR, JT, JV, JX, LA, LC, LE, LG, LJ, LL, LN, LP, LR, LT, LV, LX, NA, NC, NE, NG, NJ, NL, NN, NP, NR

The dishwashers were manufactured in the United States and sold at department and appliance stores and by homebuilders nationwide from February 2006 through April 2010, for between $250 and $900.

The CPSC asks consumers to immediately stop using the recalled dishwashers and disconnect the power supply by shutting off the fuse or circuit breaker controlling it. Consumers can contact Maytag to verify if their dishwasher is included in the recall. If the dishwasher is included in the recall, consumers can either schedule a free in-home repair, or receive a rebate following the purchase of certain new Maytag brand stainless-steel tub dishwashers.

The rebate is $150 if the consumer purchases new dishwasher models MDB7759, MDB7609 or MDBH979; or $250 if the consumer purchases new dishwasher models MDB8959, MDB8859, MDB7809 or MDB7709. Consumers should not return the recalled dishwashers to the retailer where purchased as retailers are not prepared to take the units back.

For additional information, contact Maytag at (800) 544-5513 anytime, or visit the firm’s website at www.repair.maytag.com.

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The CPSC and McDonald's Corporation announced on June 5 that they would recall the painted “Shrek Forever After 3D” Collectable Drinking Glasses after  discovering the designs on the glasses contain cadmium. Consumers are asked to stop using the glasses immediately.

The glasses under recall are the “Shrek Forever After 3D” collectible drinking glass in the 16 ounce size and with four designs: Shrek, Fiona, Puss n’ Boots, and Donkey. The glasses were available at McDonald’s restaurants nationwide from May 2010 into June 2010, for about $2.

Other recalls have been announced in recent months on children's products containing cadmium. Retailers such as Walmart and companies such as Disney have been forced to recall toys and jewelry due to the presence of the heavy metal which is known to have adverse affects on the health after long term exposure.

"A very small amount of cadmium can come to the surface of the glass, and in order to be as protective as possible of children, CPSC and McDonald's worked together on this recall," CPSC spokesman Scott Wolfson told the Associated Press. He would not specify the amounts of cadmium that leached from the paint in tests, but said the amounts were "slightly above the protective level currently being developed by the agency."

Consumers who purchased the Shrek glasses may receive a full refund. Visit www.mcdonalds.com/glasses for additional instructions on how to obtain a refund. For additional information, consumers may contact McDonald’s toll-free at (800) 244-6227 between 9 a.m. and 5 p.m. CT Monday through Friday, or visit the firm’s website at www.mcdonalds.com/glasses.


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FDA Recalls PediaCare Products

The FDA, in conjunction with pharmaceutical company Blacksmith Brands, Inc., announced a voluntary recall of all of the company's PediaCare products. These products were manufactured for Blacksmith Brands by McNeil Consumer Healthcare, a Division of McNeil-PPC, Inc., (a Johnson & Johnson Company) at McNeil's Fort Washington, PA plant. It was conditions at this plant that were the basis for the recall of the Johnson & Johnson children's Tylenol products at the end of April. A recent FDA inspection at that facility found serious problems in meeting the FDA's current good manufacturing practice requirements.

According to the May 28 press release by the FDA, the recall was not initiated as a result of any consumer reports of sickness or other problems and as yet, no consumer complaints have been received about the safety or purity of the products. As with some of the recalled Tylenol products, tiny particles have been found in other non-PediaCare products which were manufactured at the McNeil plant.

The four PediaCare items under recall are as follows:

  • PediaCare Multi-Symptom Cold 4oz. UPC # 3 0045-0556-05 9
  • PediaCare Long Acting Cough 4oz. UPC# 3 0045-0465-04 7
  • PediaCare Decongestant 4oz. UPC# 3 0045-0554-04 8
  • PediaCare Allergy and Cold 4oz. UPC# 3 0045-0552-04 4

"We're taking this voluntary step because protecting consumers and maintaining their trust are essential to our company's core values," said Blacksmith Brands Chairman and CEO Peter Mann. "Our brands have a heritage that has made them the favorites of millions of families and we are the guardians of that heritage."


The FDA states that while the potential for serious medical problems is remote, the company advises consumers who have purchased these recalled products to discontinue use.

Consumers with questions may contact Blacksmith Brands on Friday, May 28th 5pm – 9pm EST; Saturday-Monday 9am-5pm EST; and normal business hours thereafter at (888) 474-3099. More information is available at http://blacksmithbrands.com/.

Any adverse events that may be related to the use of these products should be reported to the FDA's Med Watch Program by fax at 1-800-FDA-0178 or by mail at Med Watch, HF-2, FDA, 5600 Fishers Lane, Rockville, MD 20852-9787. or on the Med Watch website at http://www.fda.gov/safety/medwatch/default.htm.

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Beware of BP Oil Spill Scams

Any high-profile tragic situation often leads to scammers who look to take advantage of the situation. After the recent warnings from The Financial Industry Regulatory Authority and the Securities and Exchange Commission, consumers would be wise to be skeptical of any organizations who claim to be assisting with the BP oil spill cleanup. Possible oil spill scams could include requests for donations to fake organizations, investment schemes, or other methods to gain information or money.

Certainly, there are plenty of organizations in the Gulf doing legitimate, noble work, however, the FINRA and SEC have seen enough of a surge in oil spill scam activity that it is important to be vigilant.

A recent Consumer Reports article highlighted a government press release:

"While some of the companies touting their role in the cleanup may be legitimate, others could be bogus operations that are only looking to clean out unsuspecting investors."

Take for example, a company that the SEC recently suspended trading shares of, ACT Clean Technologies, Inc. The agency became suspicious of ACT's "oil fluidizer." It would be hard to blame the SEC on that move; the term "oil fluidizer," has a fairly dubious sound to it.

The SEC and FINRA have suggested investors be especially skeptical of the following types of claims:

  • Products or technologies effective in remediating oil spills or restoring the ecosystem,
  • contracts or expected contracts with BP,
  • technical expertise provided to BP or government agencies such as the Environmental Protection Agency,
  • quick, exponential sales growth.

With a little vigilance, you can make sure that your time and money only go to the good guys.

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On May 25, the CPSC announced its list of the manufacturing companies whose drywall showed emissions of high levels of hydrogen sulfide in testing. The testing was conducted for the CPSC at the Lawrence Berkeley National Laboratory (LBNL), in California. The Commission confirms there is a strong association between the hydrogen sulfide and metal corrosion.

The CPSC confirms that of the samples tested, the top ten sulfur-emitting drywall samples were all produced in China. Some of the Chinese drywall had emission rates of hydrogen sulfide 100 times greater than non-Chinese drywall samples.

Chairman of the CPSC, Inez Tenenbaum, appealed to the Chinese companies to do "what is fair and just" to compensate the American homeowners who have suffered great damage and loss of value to their homes due to the drywall. Many homeowners have already filed suits against various manufacturers of the drywall.

In Beijing on May 24 and 25, the highest bi-lateral meeting yet convened to discuss a broad range of issues between the two countries. According to the CPSC, at that time, the American officials "pressed the Chinese government to facilitate a meeting between CPSC and the Chinese drywall companies whose products were used in U.S. homes, and which exhibit the emissions identified during the testing procedures."

The following is a list from the CPSC showing the top 10 drywall samples that tested with the highest emissions of hydrogen sulfide, along with the identity of the manufacturer of the drywall, and the year of manufacture, from highest to lowest.

  • Knauf Plasterboard (Tianjin) Co. Ltd.: (year of manufacture 2005) China
  • Taian Taishan Plasterboard Co. Ltd.: (2006) China
  • Shandong Taihe Dongxin Co.: (2005) China
  • Knauf Plasterboard (Tianjin) Co. Ltd.: (2006) China
  • Taian Taishan Plasterboard Co. Ltd.: (2006) China
  • Taian Taishan Plasterboard Co. Ltd.: (2006) China
  • Shandong Chenxiang GBM Co. Ltd. (C&K Gypsum Board): (2006) China
  • Beijing New Building Materials (BNBM): (2009) China
  • Taian Taishan Plasterboard Co. Ltd.: (2009) China
  • Shandong Taihe Dongxin Co.: (2009) China

Other Chinese drywall samples had low or no detectable emissions of hydrogen sulfide as did the drywall samples tested that were manufactured domestically. To view that list, click here.

To report a dangerous product or a product-related injury, call CPSC's Hotline at (800) 638-2772 or CPSC's teletypewriter at (301) 595-7054. Consumers can obtain recall and general safety information by logging on to CPSC's Web site at www.cpsc.gov.

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