[Federal Register Volume 87, Number 32 (Wednesday, February 16, 2022)]
[Notices]
[Pages 8804-8807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03307]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 22-1]


Leachco, Inc.

AGENCY: Consumer Product Safety Commission.

ACTION: Publication of a Complaint under the Consumer Product Safety 
Act.

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SUMMARY: Under provisions of its Rules of Practice for Adjudicative 
Proceeding, the Consumer Product Safety Commission must publish in the 
Federal Register Complaints which it issues. Published below is a 
Complaint: In the matter of Leachco, Inc.

FOR FURTHER INFORMATION CONTACT: Alberta E. Mills, Secretary, Division 
of the Secretariat, Office of the General Counsel, U.S. Consumer 
Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814, 
(301) 504-7479 (Office) or 240-863-8938 (cell).

SUPPLEMENTARY INFORMATION: The Commission voted 3-1 to authorize 
issuance of this Complaint. Chair Hoehn-Saric, Commissioners Feldman 
and Trumka voted to authorize issuance of the Complaint. Commissioner 
Baiocco voted to take other action. The text of the Complaint appears 
below.

    Dated: February 11, 2022.
Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
UNITED STATES OF AMERICA
CONSUMER PRODUCT SAFETY COMMISSION
    In the Matter of LEACHCO, INC., Respondent.

CPSC Docket No. 22-1

COMPLAINT

Nature of the Proceedings

    1. This is an administrative enforcement proceeding pursuant to 
Section 15 of the Consumer Product Safety Act (``CPSA''), as amended, 
15 U.S.C. 2064, for public notification and remedial action to protect 
the public from the substantial risks of injury presented by various 
models of infant lounging pillows (``Podsters'') which were 
manufactured and distributed by Leachco, Inc. (``Respondent'').
    2. This proceeding is governed by the Rules of Practice for 
Adjudicative Proceedings before the Consumer Product Safety Commission 
(the ``Commission''), 16 CFR part 1025.

Jurisdiction

    3. This proceeding is instituted pursuant to the authority 
contained in Sections 15(c), (d), and (f) of the CPSA, 15 U.S.C. 
2064(c), (d), and (f).

Parties

    4. Complaint Counsel consists of attorneys in the Division of 
Enforcement and Litigation within the Office of Compliance and Field 
Operations representing the staff of the Commission. 16 CFR 1025.3(d). 
The Commission is an independent federal regulatory agency established 
pursuant to Section 4 of the CPSA. 15 U.S.C. 2053.
    5. Respondent is an Oklahoma corporation with its principal place 
of business located at 130 E 10th Street, Ada, Oklahoma.
    6. Upon information and belief, Respondent is a ``manufacturer'' 
and/or ``distributor'' of a ``consumer product'' that is 
``distribute[d] in commerce,'' as those terms are defined in Sections 
3(a)(5), (7), (8), and (11) of the CPSA, 15 U.S.C. 2052(a)(5), (7), 
(8), and (11).

The Podsters

    7. The Podsters consist of various models of infant lounging 
pillows that were manufactured and/or distributed in U.S. commerce and 
offered for sale to consumers for their personal use in or around a 
permanent or temporary household or residence, school, in recreation, 
or otherwise.
    8. The Podsters are manufactured at Respondent's facilities in Ada, 
Oklahoma.
    9. Upon information and belief, the Podsters include, but are not 
limited to, the following models: Podster, Podster Plush, Bummzie, and 
Podster Playtime.
    10. Upon information and belief, approximately 180,000 Podsters 
have been manufactured and distributed in U.S. commerce since 2009. The 
Podster and Podster Plush models have been sold from 2009 to present; 
the Bummzie was sold exclusively at Walmart from 2010 to 2018; and the 
Podster Playtime was sold from 2014 to 2017.
    11. Upon information and belief, the retail price for the Podsters 
ranges from approximately $49 and $89.
    12. The Podsters are sold at various retail chains including, but 
not limited to, Amazon.com, Bed Bath and Beyond, Buy Buy Baby, Kohls, 
Macy's, Toys R Us/Babies R Us, and Walmart.
    13. The Podster is a product marketed for caregivers to use for 
infant lounging and to ``provide[ ] a warm and cozy caress for 
infants.'' It was designed to permit a caregiver to keep an infant in a 
safe environment, allowing for hands-free supervision.
    14. The Podster is not and has never been advertised by Respondent 
as a sleep product.
    15. The Podster contains warnings that the product should not be 
used for sleep and that adult supervision is always required.
    16. The Podster contains warnings that the product should only be 
used on the floor, and not in another product, such as a crib, on a 
bed, table, playpen, counter, or any elevated surface.
    17. The Podster contains warnings that infants should not be placed 
prone or on their side in the product.
    18. The Podster contains instructions that it should be used for 
infants not to exceed 16 pounds, and should not be used if an infant 
can roll over.
    19. The Podster contains warnings and instructions that use of the 
product in contravention to these warnings could result in serious 
injury or death.

The Podsters' Defects Create a Suffocation Hazard

    20. Despite the warnings and instructions, it is foreseeable that 
caregivers will use the Podster without supervision. It is also 
foreseeable that caregivers will use the Podster for infant sleep.
    a. The Podsters are marketed for use with infants, and caregivers 
may trust that the products are safe places to leave infants. Because 
the Podsters appear simple to use, are likely to be used frequently, 
and do not appear

[[Page 8805]]

dangerous, it is foreseeable that some caregivers may disregard or not 
fully read the Podsters' warnings.
    b. If an infant falls asleep in the Podster, a caregiver may choose 
not to disturb the infant and may leave the infant asleep in the 
product.
    c. Caregivers facing difficulties in getting their infant to sleep 
may choose to use the Podster for that purpose if the Podster appears 
to help with sleep or if the infant appears to be comfortable in the 
Podster, even if the caregiver is aware of the contrary product 
warnings.
    d. Caregivers with an infant who are traveling or who are dealing 
with significant financial hardship may be more likely to allow an 
infant to sleep in the Podster, as they may not have a crib or safe 
infant sleep product readily available.
    e. If an infant falls asleep in the Podster, it is foreseeable that 
the caregiver may intentionally sleep while the infant is asleep, may 
accidentally fall asleep while the infant is asleep, may use the time 
that the infant is asleep to catch up on work or chores, or otherwise 
may leave the infant unsupervised.
    21. Unsupervised infants can roll or move on the Podster into a 
position where their nose and mouth are obstructed by the Podster.
    22. Unsupervised infants can roll or move off the Podster into a 
position where their nose and mouth are obstructed by another object, 
such as soft bedding.
    23. Despite warnings and instructions, some caregivers may not 
place infants on their backs in the Podster and may place infants in 
positions where their nose and mouth may be obstructed by the Podster.
    24. The Podster is defective because it can cause airflow 
obstruction if an unsupervised infant rolls, moves, or is placed in a 
position where the infant's nose and mouth are obstructed by the 
Podster.
    25. The Podster is defective because it is constructed of thick, 
soft padding that has a concave shape which can envelop an infant's 
face and cause airflow obstruction if an unsupervised infant rolls, 
moves, or is placed in a position where the infant's nose and mouth are 
obstructed by the Podster.
    26. The Podster is defective because it lacks rigid underlying 
components, which can impede the ability of an infant to self-rescue in 
the event that the infant rolls, moves, or is placed in a position 
where the infant's nose and mouth are obstructed by the Podster.
    27. The Podster is defective because it facilitates an infant's 
movement on the Podster, enhancing the risk that the infant's nose and 
mouth will be obstructed by the Podster.
    28. The Podster is defective because it facilitates an infant's 
movement off the Podster, enhancing the risk that the infant's nose and 
mouth will be obstructed by another object in the infant's environment, 
such as soft bedding.
    29. The design of the Podster allows infants to bend their knees 
and push off the raised edges of the Podster with their feet, allowing 
an infant to roll or move on or off the Podster.
    30. The Podster may allow an infant to roll, even if the infant is 
not able to roll on a flat surface, such as in a crib or bassinet.
    31. The Podster's design also can lead to unsafe bedsharing where 
the infant sleeps in an adult bed with one or more adult caregivers.
    32. The Podster may be attractive to caregivers who wish to 
bedshare with an infant because it is soft and portable, and caregivers 
may believe that the product's high sides will act as a sufficient 
barrier between the adult and the infant to keep the infant secure in 
the Podster.
    33. Bedsharing with an infant in a Podster can result in an infant 
moving into a compromised position within the Podster and suffocating, 
or moving outside the Podster and suffocating on another person or 
object, such as soft bedding or the adult bed.
    34. If an infant rolls, moves, or is placed in a position where the 
infant's nose and mouth are obstructed by the Podster or another 
object, such as soft bedding, the infant can suffocate and die in three 
to 10 minutes.

Fatal Incidents Caused by the Podsters

    35. The Podster's defects have led to the deaths of at least two 
infants.
    36. Upon information and belief, on or about December 16, 2015, a 
4-month-old infant suffocated after being placed face-up or on their 
side in the Podster in a crib. The infant was found face-down on the 
Podster and later died of complications from asphyxia.
    37. Upon information and belief, on or about January 27, 2018, a 
17-day-old infant suffocated after being placed face up in the Podster 
on an adult bed between two caregivers. Upon information and belief, 
the infant had moved off the Podster onto the adult bed after one of 
the caregivers rolled onto the Podster and infant.

The Substantial Risk of Injury Posed by the Podsters

    38. It is foreseeable that caregivers will use the Podster for 
infant sleep, despite the instructions and warnings. It is also 
foreseeable that caregivers will use the Podster without supervision.
    39. It is foreseeable that some caregivers will not place infants 
on their backs in the Podster.
    40. It is foreseeable that caregivers will place infants in 
Podsters and use the Podster for bedsharing in an adult bed.
    41. If an infant rolls, moves, or is placed in a position where the 
infant's nose and mouth are obstructed by the Podster itself or by 
another object or person with whom the infant is bedsharing, the infant 
may not be able to self-rescue and can suffocate within minutes.
    42. Upon information and belief, at least two infants, members of a 
vulnerable population, have suffocated and died after being placed in 
the Podster for unsupervised sleep.

Legal Authority Under the CPSA

    43. Under the CPSA, the Commission may order a firm to provide 
notice to the public and take remedial action if the Commission 
determines that a product ``presents a substantial product hazard.'' 15 
U.S.C. 2064(c) and (d).
    44. Under CPSA Section 15(a)(2), a ``substantial product hazard'' 
is ``a product defect which (because of the pattern of defect, the 
number of defective products distributed in commerce, the severity of 
the risk, or otherwise) creates a substantial risk of injury to the 
public.'' 15 U.S.C. 2064(a)(2).
    45. A product may contain a design defect even if it is 
manufactured exactly in accordance with its design and specifications 
if the design presents a risk of injury to the public. See 16 CFR 
1115.4.
    46. A defect can also occur in a product's contents, construction, 
finish, packaging, warnings, or instructions.
    47. In assessing whether a product contains a defect, the 
Commission may consider a consumer's foreseeable use or misuse of the 
product. See 16 CFR 1115.4.

Count I

The Podsters are a Substantial Product Hazard Because They Contain 
Defects That Create a Substantial Risk of Injury to the Public
    48. Paragraphs 1 through 47 are hereby realleged and incorporated 
by reference as if fully set forth herein.
    49. The Podsters are consumer products.
    50. The Podsters contain defects because it is foreseeable that 
caregivers will use the product for infant sleep and it is foreseeable 
that caregivers will

[[Page 8806]]

leave infants unattended in the product, and:
    a. The Podster can cause airflow obstruction leading to suffocation 
if an infant rolls, moves, or is placed in a position where their nose 
and mouth are obstructed by the Podster;
    b. The design of the Podster prevents infants from self-rescuing 
once their nose and mouth are obstructed by the Podster;
    c. The design of the Podster facilitates infant movement on the 
Podster, which can result in an infant's nose and mouth becoming 
obstructed by the Podster;
    d. The design of the Podster facilitates movement off the Podster, 
which can result in an infant's nose and mouth being obstructed by 
another object in the infant's environment, such as soft bedding; and
    e. The design of the Podster may lead to it being used for 
bedsharing, which can facilitate an infant's rolling off the product 
onto an adult bed, leading to the infant's nose and mouth being 
obstructed by another object or an individual sleeping in the bed.
    51. These defects separately, and in combination, create a 
substantial risk of injury to infants because of the pattern of defect, 
the number of defective products distributed in commerce, the severity 
of the risk, or otherwise.
    52. Therefore, the Podsters present a substantial product hazard 
within the meaning of Section 15(a)(2) of the CPSA, 15 U.S.C. 
2064(a)(2).

Relief Sought

    Wherefore, in the public interest, Complaint Counsel requests that 
the Commission:
    A. Determine that the Podsters present a ``substantial product 
hazard'' within the meaning of Section 15(a)(2) of the CPSA, 15 U.S.C. 
2064(a)(2).
    B. Determine that extensive and effective public notification under 
Section 15(c) of the CPSA, 15 U.S.C. 2064(c), is required to adequately 
protect the public from the substantial product hazard presented by the 
Podsters, and order Respondent under Section 15(c) of the CPSA, 15 
U.S.C. 2064(c), to:
    (1) Notify all persons who sell or distribute the Podsters, or to 
whom such Podsters have been sold or distributed, to immediately cease 
distribution of the Podsters;
    (2) Notify appropriate state and local public health officials;
    (3) Give prompt public notice of the defect in the Podsters, 
including the incidents and injuries associated with the use of the 
Podsters, including posting clear and conspicuous notice on 
Respondent's website, and providing notice to any third-party website 
on which Respondent has a presence, and provide further announcements 
in languages other than English and on radio, television, and social 
media;
    (4) Mail and email notice to each distributor and retailer, of the 
Podsters; and
    (5) Mail and email notice to every person to whom the Podsters were 
delivered or sold.
    C. Determine that action under Section 15(d) of the CPSA, 15 U.S.C. 
2064(d), is in the public interest and additionally order Respondent 
to:
    (1) Refund the purchase price of the Podster;
    (2) Reimburse distributors, retailers, and any other third parties 
for expenses in connection with carrying out any Commission Order 
issued in this matter, as provided by Section 15(e)(2) of the CPSA, 15 
U.S.C. 2064(e)(2);
    (3) Submit a plan satisfactory to the Commission, within ten (10) 
days of service of the Final Order, directing that actions specified in 
Paragraphs B(1) through (5), above and C(1) through (2) be taken in a 
timely manner;
    (4) Submit monthly reports, to the Commission, documenting the 
progress of the corrective action program ordered pursuant to this 
matter;
    (5) For a period of five (5) years after issuance of the Final 
Order in this matter, keep records of its actions taken to comply with 
Paragraphs B(1) through (5), C(1) through (4), above, and supply these 
records to the Commission for the purpose of monitoring compliance with 
the Final Order; and
    (6) For a period of five (5) years after issuance of the Final 
Order in this matter, notify the Commission at least sixty (60) days 
prior to any change in its business (such as incorporation, 
dissolution, assignment, sale, or petition for bankruptcy) that results 
in, or is intended to result in, the emergence of a successor 
corporation, going out of business, or any other change that might 
affect compliance obligations under a Final Order issued by the 
Commission in this matter.
    D. Order that Respondent take other and further actions as the 
Commission deems necessary to protect the public health and safety and 
to comply with the CPSA.

Issued by order of the Commission:

Dated this 9th day of February 2022.

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By: Robert Kaye,

Assistant Executive Director, Office of Compliance and Field 
Operations, (301) 504-6960.

Mary B. Murphy,

Director, Division of Enforcement and Litigation,

Leah Ippolito,

Supervisory Attorney,

Brett Ruff,

Trial Attorney,

Rosalee Thomas,

Trial Attorney.

Complaint Counsel,

Office of Compliance and Field Operations, U.S. Consumer Product 
Safety Commission, Bethesda, MD 20814, Tel: (301) 504-7809.
UNITED STATES OF AMERICA
CONSUMER PRODUCT SAFETY COMMISSION
In the Matter of LEACHCO, INC. Respondent.

CPSC DOCKET NO. 22-1

LIST AND SUMMARY OF DOCUMENTARY EVIDENCE

    Pursuant to 16 CFR 1025.11(b)(3) of the Commission's Rules of 
Practice for Adjudicative Proceedings, the following is a list and 
summary of documentary evidence supporting the charges in this matter. 
Complaint Counsel reserves the right to offer additional or different 
evidence during the course of the proceedings, or to withhold evidence 
on the basis of any applicable legal privileges.
    1. Claims, complaints, records, reports, CPSC's In-Depth 
Investigations, and lawsuits concerning incidents or injuries involving 
infant lounging pillows manufactured and distributed by Respondent 
Leachco, Inc. (``Podsters'').
    2. CPSC Product Safety Assessments.
    3. Correspondence between Respondent and CPSC staff related to the 
Podsters.
    4. Documents and information related to the Podsters, including 
notices issued regarding the Podsters and similar products.

Dated this 9th day of February 2022.

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Mary B. Murphy,

Director, Division of Enforcement and Litigation,

Leah Ippolito,

Supervisory Attorney

Brett Ruff,

Trial Attorney,

Rosalee Thomas,

Trial Attorney.

Complaint Counsel,

Office of Compliance and Field Operations, U.S. Consumer Product 
Safety Commission Bethesda, MD 20814, Tel: (301) 504-7809.

CERTIFICATE OF SERVICE

    I hereby certify that on February 9th, 2022, I served the foregoing 
Complaint and List and Summary of Documentary Evidence upon all parties 
of record in

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these proceedings by emailing a copy to counsel, as follows:

Cheryl Falvey Crowell and Moring, 1001 Pennsylvania Avenue NW, 
Washington, DC 20004

    Email: <a href="/cdn-cgi/l/email-protection#197a7f78756f7c60597a6b766e7c7575377a7674"><span class="__cf_email__" data-cfemail="a6c5c0c7cad0c3dfe6c5d4c9d1c3caca88c5c9cb">[email protected]</span></a>.

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Complaint Counsel for U.S. Consumer Product Safety Commission.

[FR Doc. 2022-03307 Filed 2-15-22; 8:45 am]
BILLING CODE 6355-01-P


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