[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Notices]
[Pages 28030-28033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13879]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0019]


Mattel, Inc. and Fisher-Price, Inc., Provisional Acceptance of a 
Settlement Agreement and Order

AGENCY: Consumer Product Safety Commission.

ACTION: Notice.

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[[Page 28031]]

SUMMARY: It is the policy of the Commission to publish settlements 
which it provisionally accepts under the Consumer Product Safety Act in 
the Federal Register in accordance with the terms of 16 CFR 1118.20(e). 
Published below is a provisionally-accepted Settlement Agreement with 
Mattel, Inc. and Fisher-Price, Inc., containing a civil penalty of 
$2,300,000.00.

DATES: Any interested person may ask the Commission not to accept this 
agreement or otherwise comment on its contents by filing a written 
request with the Office of the Secretary by June 29, 2009.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 09-C0019, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 502, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: M. Reza Malihi, Trial Attorney, 
Division of Compliance, Office of the General Counsel, Consumer Product 
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7733.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears 
below.

    Dated: June 9, 2009.
Todd A. Stevenson,
Secretary.

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Mattel, Inc. (``Mattel'') and 
Fisher-Price, Inc. (``Fisher-Price'') and the staff (``Staff'') of the 
United States Consumer Product Safety Commission (``CPSC'' or the 
``Commission'') enter into this Settlement Agreement (``Agreement''). 
The Agreement and the incorporated attached Order (``Order'') settle 
the Staff's allegations set forth below.

Parties

    2. The Commission is an independent federal regulatory agency 
established pursuant to, and responsible for the enforcement of, the 
Consumer Product Safety Act, 15 U.S.C. 2051-2089 (``CPSA'').
    3. Mattel is a corporation organized and existing under the laws of 
the state of Delaware, with principal offices located in El Segundo, 
California. Fisher-Price, a wholly-owned subsidiary of Mattel, is a 
corporation organized and existing under the laws of the state of 
Delaware, with principal offices located in East Aurora, New York. At 
all times relevant hereto, Mattel and Fisher-Price (collectively, the 
``Firms'') designed, imported and sold toys and children's products.

Staff Allegations Regarding Mattel

    4. Between January 19, 2007 and July 27, 2007, Mattel imported into 
the United States approximately 253,000 units of ``Sarge'' die cast toy 
cars with markings of ``China'' and a ``7EA'' date code on the bottom 
(``Toy Cars''). Mattel shipped the Toy Cars to retailers from May 2007 
to August 2007, and, in turn, they were sold to consumers at retail 
stores nationwide during that period for between $7 and $20 per unit.
    5. Between September 30, 2006 and August 20, 2007, Mattel imported 
into the United States approximately 633,000 units of Barbie[supreg] 
accessory toys consisting of the following models: Barbie Dream Puppy 
House Playset; Barbie Dream Kitty Condo Playset; Barbie Table & Chairs 
Kitchen Playset; Barbie Bathtub & Toilet Bathroom Playset; Barbie 
Living Room Playset; Barbie Desk & Chair Bedroom Playset; and Barbie 
Couch & Table Living Room Playset (collectively, ``Accessory Toys''). 
Mattel shipped 439,000 of the Accessory Toys to retailers during that 
period, and, in turn, they were sold to consumers at retail stores 
nationwide from October 2006 to August 2007 for about $10 per unit.
    6. The Toy Cars and the Accessory Toys (collectively, ``Mattel 
Products'') are ``consumer product(s),'' and, at all times relevant 
hereto, Mattel was a ``manufacturer'' of those consumer products, which 
were ``distributed in commerce,'' as those terms are defined in CPSA 
sections 3(a)(3), (5), (8), and (11), 15 U.S.C. 2052(a)(3), (5), (8), 
and (11).
    7. The Mattel Products are articles intended to be entrusted to or 
for use by children, and, therefore, are subject to the requirements of 
the Commission's Ban of Lead-Containing Paint and Certain Consumer 
Products Bearing Lead-Containing Paint, 16 CFR Part 1303 (the ``Lead 
Paint Ban''). Under the Lead Paint Ban, toys and other children's 
articles must not bear ``lead-containing paint,'' defined as paint or 
other surface coating materials whose lead content is more than 0.06 
percent of the weight of the total nonvolatile content of the paint or 
the weight of the dried paint film. 16 CFR 1303.2(b)(1).
    8. During the summer of 2007, samples of the Mattel Products were 
tested for the presence of lead pursuant to the Lead Paint Ban. The 
test results demonstrated that certain samples of each of the Mattel 
Products contained levels of lead in excess of the permissible 0.06 
percent limit set forth in the Lead Paint Ban.
    9. On August 14, 2007, the Commission and Mattel announced a recall 
of the Toy Cars because ``[s]urface paints on the toys could contain 
levels of lead in excess of federal standards.'' Similarly, on 
September 4, 2007, the Commission and Mattel announced a recall of the 
Accessory Toys because ``[s]urface paints on the toys contain excessive 
levels of lead which is prohibited under federal law.'' At the time of 
each of the aforementioned recalls Mattel reported no incidents or 
injuries associated with the Mattel Products and excessive lead. Lead 
is toxic if ingested by young children and can cause adverse health 
consequences.
    10. Mattel failed to ensure that the Mattel Products complied with 
the Lead Paint Ban.
    11. The Mattel Products constitute ``banned hazardous products'' 
under CPSA section 8 and the Lead Paint Ban, 15 U.S.C. 2057 and 16 CFR 
1303.1(a)(1), 1303.4(b), in that they bear or contain paint or other 
surface coating materials whose lead content exceeds the permissible 
limit of 0.06 percent of the weight of the total nonvolatile content of 
the paint or the weight of the dried paint film.
    12. Between September 2006 and August 2007, Mattel sold, 
manufactured for sale, offered for sale, distributed in commerce, or 
imported into the United States, or caused one or more of such acts, 
with respect to the Mattel Products, in violation of section 19(a)(1) 
of the CPSA, 15 U.S.C. 2068(a)(1). Mattel committed these prohibited 
acts ``knowingly,'' as that term is defined in section 20(d) of the 
CPSA, 15 U.S.C. 2069(d).
    13. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Mattel is 
subject to civil penalties for the aforementioned violations.

Staff Allegations Regarding Fisher-Price

    14. Between April 19, 2007 and July 6, 2007, Fisher-Price imported 
approximately 967,000 units of various ``Sesame Street,'' ``Dora the 
Explorer,'' and other licensed character toys, comprising 83 different 
models (collectively, ``Licensed Character Toys''). Fisher-Price 
shipped about 678,000 of the Licensed Character Toys to retailers from 
May 2007 to August 2007 and, in turn, they were sold to consumers at 
retail stores nationwide during that period for between $5 and $40 per 
unit.
    15. Between May 19, 2007 and August 1, 2007, Fisher-Price imported 
into the United States approximately 8,900 units of Big Big World 6-in-
1 Bongo Band toys (``Bongo Band Toys''). Fisher-Price

[[Page 28032]]

shipped the Bongo Band Toys to retailers from May 2007 to August 2007, 
and, in turn, they were sold to consumers at retail stores nationwide 
from July 2007 to August 2007 for about $20 per unit.
    16. Between July 31, 2006 and September 4, 2006, Fisher-Price 
imported into the United States approximately 3,000 units of GEOTRAX 
Freightway Transport locomotive toys and 80,000 units of GEOTRAX 
Special Track Pack locomotive toys (collectively, ``GEOTRAX Toys''). 
Fisher-Price shipped the GEOTRAX Toys to retailers from August 2006 to 
July 2007, and in turn, they were sold to consumers at retail stores 
nationwide from September 2006 to August 2007 for between $3 and $16 
per unit.
    17. Between May 17, 2007 and August 11, 2007, Fisher-Price imported 
into the United States approximately 37,500 units of Go Diego Go Animal 
Rescue Boat toys (``Boat Toys''). Fisher-Price shipped the Boat Toys to 
retailers during that period, and in turn, they were sold to consumers 
at retail stores nationwide from June 2007 through October 2007 for 
about $20 per unit.
    18. The Licensed Character Toys, Bongo Band Toys, GEOTRAX Toys, and 
Boat Toys (collectively, ``Fisher-Price Products'') are ``consumer 
product(s),'' and, at all times relevant hereto, Fisher-Price was a 
``manufacturer'' of those consumer products, which were ``distributed 
in commerce,'' as those terms are defined in CPSA sections 3(a)(3), 
(5), (8), and (11), 15 U.S.C. 2052(a)(3), (5), (8), and (11).
    19. The Fisher-Price Products are articles intended to be entrusted 
to or for use by children, and, therefore, are subject to the 
requirements of the Lead Paint Ban.
    20. During the summer and fall of 2007, samples of the Fisher-Price 
Products were tested for the presence of lead pursuant to the Lead 
Paint Ban. The test results demonstrated that certain samples of each 
of the Fisher-Price Products contained levels of lead in excess of the 
permissible 0.06 percent limit set forth in the Lead Paint Ban.
    21. On August 2, 2007, the Commission and Fisher-Price announced 
the recall of the Licensed Character Toys because ``[s]urface paints on 
the toys could contain excessive levels of lead.'' Similarly, on 
September 4, 2007, a recall was announced regarding the Bongo Band Toys 
and the GEOTRAX Toys, because surface paints on the toys contain levels 
of lead in excess of the permissible 0.06 percent limit set forth in 
the Lead Paint Ban. This was followed by the October 25, 2007 
announcement of a recall of the Boat Toys because ``[s]urface paints on 
the toys contain excessive levels of lead, which violates the federal 
standard prohibiting lead paint on children's toys.'' At the time of 
each of the aforementioned recalls Fisher-Price reported no incidents 
or injuries associated with the Fisher-Price Products. Lead is toxic if 
ingested by young children and can cause adverse health consequences.
    22. Fisher-Price failed to ensure that the Fisher-Price Products 
complied with the Lead Paint Ban.
    23. The Fisher-Price Products constitute ``banned hazardous 
products'' under CPSA section 8 and the Lead Paint Ban, 15 U.S.C. 2057 
and 16 CFR 1303.1(a)(1), 1303.4(b), in that they bear or contain paint 
or other surface coating materials whose lead content exceeds the 
permissible limit of 0.06 percent of the weight of the total 
nonvolatile content of the paint or the weight of the dried paint film.
    24. Between July 2006 and August 2007, Fisher-Price sold, 
manufactured for sale, offered for sale, distributed in commerce, or 
imported into the United States, or caused one or more of such acts, 
with respect to the Fisher-Price Products, in violation of section 
19(a)(1) of the CPSA, 15 U.S.C. 2068(a)(1). Fisher-Price committed 
these prohibited acts ``knowingly,'' as that term is defined in section 
20(d) of the CPSA, 15 U.S.C. 2069(d).
    25. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Fisher-
Price is subject to civil penalties for the aforementioned violations.

The Firms' Response

    26. Mattel denies the Staff's allegations set forth above that it 
knowingly violated the CPSA.
    27. Fisher-Price denies the Staff's allegations set forth above 
that it knowingly violated the CPSA.

Agreement of the Parties

    28. Under the CPSA, the Commission has jurisdiction over this 
matter and over the Firms.
    29. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by the Firms, or a 
determination by the Commission, that either of the Firms knowingly 
violated the CPSA.
    30. In settlement of the Staff's allegations, Mattel shall pay, for 
and on behalf of both Firms, a civil penalty in the total amount of two 
million three hundred thousand dollars ($2,300,000.00) within twenty 
(20) calendar days of service of the Commission's final Order accepting 
the Agreement. This payment shall be made by check payable to the order 
of the United States Treasury.
    31. The Commission will not seek civil penalties for possible 
violations of sections 19(a)(1) and 19(a)(4) of the CPSA, 15 U.S.C. 
2068(a)(1) and (4), regarding any information as to which the Firms, 
between March 1, 2007 and January 28, 2009, have adequately informed 
the CPSC (i) by submitting a Full Report under CPSA section 15(b), 15 
U.S.C. 2064(b), and 16 CFR 1115.13(d), and/or (ii) by submitting 
complete information voluntarily by agreement with the Office of 
Compliance and Field Operations during said period. The Commission's 
agreement not to seek penalties will not relieve the Firms from the 
continuing duty to report to CPSC any new, additional or different 
information as required by CPSA section 15(b), 15 U.S.C. 2064(b) and 
the regulations at 16 CFR Part 1115. Regarding any information 
adequately and timely reported to CPSC by the Firms after January 28, 
2009, whether submitted by agreement or otherwise, the Firms remain 
potentially liable for possible violations of section 19(a) of the 
CPSA, 15 U.S.C. 2068(a), other than subsection 19(a)(4), 15 U.S.C. 
2068(a)(4). Except as expressly provided herein, nothing in this 
Agreement is intended nor may be construed to preclude, limit, or 
otherwise reduce the Firms' potential liabilities under any and all 
applicable laws, statutory provisions, regulations, rules, standards, 
and/or bans enforced or administered by CPSC.
    32. Upon the Commission's provisional acceptance of the Agreement, 
the Agreement shall be placed on the public record and published in the 
Federal Register in accordance with the procedures set forth in 16 CFR 
1118.20(e). In accordance with 16 CFR 1118.20(f), if the Commission 
does not receive any written request not to accept the Agreement within 
fifteen (15) days, the Agreement shall be deemed finally accepted on 
the sixteenth (16th) day after the date it is published in the Federal 
Register.
    33. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, the Firms knowingly, voluntarily, and 
completely waive any rights they may have in this matter to the 
following: (1) An administrative or judicial hearing; (2) judicial 
review or other challenge or contest of the validity of the 
Commission's Order or actions; (3) a determination by the Commission of 
whether the Firms failed to comply with the CPSA and its underlying

[[Page 28033]]

regulations; (4) a statement of findings of fact and conclusions of 
law; and (5) any claims under the Equal Access to Justice Act.
    34. The Commission may publicize the terms of the Agreement and 
Order.
    35. The Agreement and Order shall apply to, and be binding upon, 
the Firms and each of their successors and assigns.
    36. The Commission issues the Order under the provisions of the 
CPSA, and violation of the Order may subject those referenced in 
paragraph 35 to appropriate legal action.
    37. The Agreement may be used in interpreting the Order. 
Understandings, agreements, representations, or interpretations apart 
from those contained in the Agreement and Order may not be used to vary 
or contradict its terms. The Agreement shall not be waived, amended, 
modified, or otherwise altered, except in a writing that is executed by 
the party against whom such waiver, amendment, modification, or 
alteration is sought to be enforced.
    38. If any provision of the Agreement and Order is held to be 
illegal, invalid, or unenforceable under present or future laws 
effective during the terms of the Agreement and Order, such provision 
shall be fully severable. The balance of the Agreement and Order shall 
remain in full force and effect, unless the Commission and the Firms 
agree that severing the provision materially affects the purpose of the 
Agreement and Order.

Mattel, Inc.

Dated: 5-28-09
By:
Robert Normile
Senior Vice President, General Counsel and Secretary
Mattel, Inc.

Fisher-Price, Inc.

Dated: 5-28-09
By:
Robert Normile
Senior Vice President and Secretary
Fisher-Price, Inc.

Dated: 5-28-09
By:
Neil A. Goldberg, Esq.
Goldberg Segalla LLP.
665 Main Street, Suite 400, Buffalo, New York 14203
Counsel for Mattel, Inc. and for Fisher-Price, Inc.

U.S. Consumer Product Safety Commission Staff

Cheryl A. Falvey
General Counsel
Office of the General Counsel

Dated: 5-29-09
By:
Ronald G. Yelenik
Assistant General Counsel
Office of the General Counsel

Dated: 5-29-09
By:
M. Reza Malihi
Trial Attorney
Division of Compliance
Office of the General Counsel

Order

    Upon consideration of the Settlement Agreement entered into between 
Mattel, Inc. (``Mattel'') and Fisher-Price, Inc. (collectively referred 
to as the ``Firms''), and the U.S. Consumer Product Safety Commission 
(``Commission'') staff, and the Commission having jurisdiction over the 
subject matter and over the Firms, and it appearing that the Settlement 
Agreement and Order are in the public interest, it is
    Ordered, that the Settlement Agreement be, and hereby is, accepted; 
and it is
    Further Ordered, that Mattel shall pay, for and on behalf of the 
Firms, a civil penalty in the amount of two million three hundred 
thousand dollars ($2,300,000.00) within twenty (20) calendar days of 
service of the Commission's final Order accepting the Agreement. The 
payment shall be made by check payable to the order of the United 
States Treasury. Upon the failure of Mattel to make the foregoing 
payment when due, interest on the unpaid amount shall accrue and be 
paid by Mattel at the federal legal rate of interest set forth at 28 
U.S.C. 1961(a) and (b).

Provisionally accepted and provisional Order issued on the 8th day 
of June 2009.

By Order of the Commission.

Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.

[FR Doc. E9-13879 Filed 6-11-09; 8:45 am]
BILLING CODE 6355-01-P