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How the GOP-led Consumer Product Safety Commission squelched a stroller recall

STROLLERS
No recall? Tess Sawyer says she still won’t put her daughter in the BOB jogging stroller that the company insists, despite numerous injuries, is not defective: “The trust is gone.”
(Dustin Franz / For the Washington Post)
Washington Post

The crashes were brutal. With no warning, the front wheel on the three-wheeled BOB jogging strollers fell off, causing the carriages to careen and even flip over. Adults shattered bones. They tore ligaments. Children smashed their teeth. They gashed their faces. One child bled from his ear canal.

Staff members at the Consumer Product Safety Commission collected 200 consumer-submitted reports from 2012 to 2018 of spontaneous failure of the stroller wheel, which is secured to a front fork by a quick-release lever, like on a bicycle. Nearly 100 adults and children were injured, according to the commission. The agency’s staff members investigated for months before deciding in 2017 that one of the most popular jogging strollers on the market was unsafe and needed to be recalled.

“The danger that was there was just so obvious,” said Marietta Robinson, a former Democratic commissioner who was still at the agency when the injury reports surfaced. “It was appalling.”

But BOB’s maker, Britax Child Safety, refused the agency’s request in 2017 for a voluntary recall of nearly 500,000 strollers. The company said the strollers were safe when used as instructed and met industry standards for safety.

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The agency didn’t back down. It sued to force a recall in February 2018. Britax kept fighting. That was unusual. Companies normally want to avoid public clashes with safety regulators, according to past and current agency staff members.

But the leadership of the safety agency was about to change. And that meant Britax might not have to recall the BOB after all.

The untold story of the Britax case shows how changes in the safety agency’s leadership under President Trump influenced the handling of a product that the commission believed had injured consumers. The case was even more striking because it unfolded as Republicans assumed day-to-day control of the agency, eventually earning a majority on the agency’s oversight commission for the first time in more than a decade.

According to a review of documents by the Washington Post and interviews with eight current and former senior agency officials, the agency’s Republican chairwoman kept Democratic commissioners in the dark about the stroller investigation and then helped end the case in court. Some spoke on the condition of anonymity because of agency rules against discussing cases.

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These events occurred with little notice amid other, higher-profile deregulatory moves by the Trump administration. But consumer advocates said changes at the Consumer Product Safety Commission could be a worrisome sign of regulators pulling back at an agency that oversees safety in 15,000 everyday products, including toys and dressers as well as lawn mowers and table saws.

The agency has historically been a leader in protecting children, passing strict limits on lead in children’s toys and ending the sale of deadly drop-side cribs. Its lawsuit against Britax ended in November with a settlement, approved by a 3-to-2 commission vote reflecting the new Republican majority. In a rare written dissent, the panel’s two Democrats called the settlement “aggressively misleading” for seeking to downplay the risks to consumers.

Under the terms of the settlement, Britax needed to launch a public-safety campaign and offer replacement parts or discounts on new strollers to affected users who requested them. But, as the company noted in a news release, it was “pleased to announce” a resolution that didn’t include a recall or formal correction plan. Company President Robert McCutcheon explained in a statement to the Post that Britax “contested CPSC’s action to request a recall of BOB strollers because there is no defect in these products.”

“Their strategy worked,” said Rebecca Weintraub, general counsel at the advocacy group Consumer Federation of America. “But the settlement is incredibly weak and fails to protect consumers.”

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The stroller was a gift from her mom.

The BOB — as its fans call it — seemed like a perfect choice for Tess Sawyer, an avid runner and a first-time mom living outside Cleveland.

Her BOB Revolution could really move on its three air-filled tires. It looked rugged, like a stroller SUV. Marketing materials showed it being pushed along dirt trails and park paths. Baby stores and outdoor shops such as REI sold the $400-to-$600 stroller.

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In September 2016, Sawyer said, she went for a run with her daughter strapped into her BOB. She was sprinting down the sidewalk with the stroller and “all of the sudden the wheel falls off,” Sawyer, now 26, recalled. “No indication. No red flag.”

The front of the stroller dipped forward. The back wheels lifted off the ground. Sawyer struggled for control. She wasn’t hurt. Her daughter, not yet a year old, was rattled but fine.

“It freaked me out,” Sawyer said.

STROLLERS
The front wheel of Tess Sawyer's BOB jogging stroller with quick release.
(Dustin Franz / For the Washington Post)

When she returned home, Sawyer contacted Britax. The company sent her a new front wheel, Sawyer said, same as the first one. But that was it.

“They gave us no reason to believe that something was wrong with the stroller,” Sawyer said. “It was like it was just a crazy accident.”

But BOB’s wheel problems were well documented by then. Even BOB’s corporate site carried a review by a mother claiming her stroller’s wheel fell off while she was running with her son. Her post’s headline: “Scary moment.”

BOB had produced a special online video in 2013 to instruct users on its use. A few months later, it added a hang tag to its strollers that warned about the dangers of incorrectly using the device.

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But the front-wheel accidents kept happening — and, according to the agency’s later lawsuit, the company failed to disclose many of these incidents to regulators. This prevented the agency from learning early on about the scale of the problem, according to two people familiar with the agency’s thinking.

Britax said in a statement it “complied with all legal and regulatory reporting requirements.”

The quick release is a metal skewer with a curved handle on one end and a metal nut on the other that tightens the wheel to the stroller fork. The stroller’s instructions told parents that “less than a half turn” of the quick release can be “the difference between safe and unsafe clamping force.”

Problems with other quick-release mechanisms have led to voluntary recalls by other companies, including recalls of bicycles by 18 different brands. More than 2 million bicycles were recalled in 2015.

In 2016, Pacific Cycle agreed to recall its jogging stroller, telling consumers to stop using the stroller until the quick release was replaced with a screw attachment.

That same year, Britax announced it had redesigned the BOB’s quick release “for added safety and usability,” according to a news release.

The new design had a closed stroller fork and modified quick release, so the wheel couldn’t fall out as easily. But that left nearly 500,000 BOBs with the original design. And they were continuing to cause problems.

As recently as October, a father reported to the agency’s consumer complaint database that his BOB double-seat stroller lost its wheel while he was jogging, causing his two children to fall face first to the ground as he flipped over the stroller and landed on top of them.

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The most powerful position at the Consumer Product Safety Commission is the agency’s chair. The chair — filled by presidential appointment and confirmed by the Senate — heads the agency’s five-person commission in which the president’s political party often holds a voting majority.

Trump’s election meant the commission would swing to the Republicans for the first time in more than a decade. Ann Marie Buerkle, a Republican, was named acting chairwoman in February 2017. Trump has nominated her to take on the role permanently.

Buerkle, who has served on the commission since 2013, was the only commissioner to oppose proposed portable-generator rules aimed at reducing carbon monoxide poisoning in 2016. She was again the lone vote that year against a then-record $15.45-million penalty for a company accused of making humidifiers prone to catching fire.

Buerkle declined to be interviewed by the Post.

In Buerkle’s first two years as chairwoman, the number of companies fined for misconduct declined to five in 2017-2018 from 12 in 2015-2016. Public voluntary recalls fell about 13% during the same period, resulting in about 80 fewer recalls, according to agency data. Last year, the number of public recalls fell to its lowest level in a decade, consumer advocates say.

One month into Buerkle’s tenure as chairwoman, in March 2017, agency staff members took the first step toward recalling the BOB with a preliminary determination that the stroller’s front wheel constituted a “substantial product hazard.”

They had been studying the issue for nearly a year. They compiled in-depth injury reports. They collected epidemiological data. They ran engineering tests, even taking the stroller out in the Washington area to understand why the wheel failed, according to two people familiar with the agency’s findings.

The agency’s health sciences division determined children could suffer “potentially life-threatening injuries” from front-wheel detachments, according to the same two people.

Staff members tried for months to get Britax to agree to a voluntary recall. But the company declined. Months passed with no action, with Britax insisting the steps taken to inform consumers about the quick release were adequate to ensure the strollers were safe.

“The case was not moving and hit a roadblock,” one senior agency official said.

Ordinarily, at this point, staff members might seek to pressure a reluctant company into agreeing to a voluntary recall, but Buerkle refused to allow staff members to do this, according to the eight officials who spoke to the Post.

Buerkle disputed that. “The chairwoman sees her role as helping staff do the best job that they can and not standing in their way,” added agency spokeswoman Patty Davis.

While Buerkle had the power to direct the staff, the Democratic commissioners still held a 3-to-1 voting majority — with one vacancy — as two Republican replacements waited for Senate confirmation.

But Buerkle had considerable control over the flow of information about what staff members were investigating. Democratic commissioners, who are less involved in day-to-day activities, did not know about the stroller inquiry.

That changed when longtime Democratic Commissioner Robert Adler found out about it in late 2017. He told others that “a little birdie” had informed him, according to five officials with direct knowledge of the discussions.

Adler seemed alarmed because it appeared the investigation had been hidden from him and the other commissioners, said these same officials.

Buerkle disputed that she did not tell the other commissioners about the inquiry. Davis added that staff members gave commissioners regular briefings on cases. But two people familiar with the briefings said staff members never mentioned the stroller case.

Adler then approached the two other Democratic commissioners, Elliot Kaye and Robinson. They demanded Buerkle arrange a commission-wide briefing on the stroller investigation, according to five officials familiar with the commissioner’s thinking. Buerkle also disputed this without elaboration.

On Jan. 10, 2018, a closed-door hearing to discuss “a compliance matter” was held at the agency’s headquarters in Bethesda, Md., according to the agency’s public calendar. The agency’s compliance staff members were “unanimous and unequivocal” about the need for a BOB recall, said Robinson, who, at the time, had only a few months remaining on the commission.

The agency scheduled a vote on whether to file a recall lawsuit. The next month, the commission voted 3 to 1 in favor of suing Britax. The three Democrats voted for it. Buerkle was the lone “no” vote.

But the commission’s makeup was about to change.

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The agency’s lawsuit filed in administrative court said “children and adults were injured because the defective design of the Strollers allowed the front wheel to detach suddenly while the Stroller was in use.”

The agency wanted the defective strollers to be repaired or replaced at Britax’s cost and for the company to launch a campaign to warn the public about the stroller’s dangers. This is how recalls are typically handled.

The lawsuit was the agency’s first in six years. But Britax was not backing down.

“There is no defect in these products,” Britax said in a statement on the day the lawsuit was filed.

Britax — the U.S. subsidiary of Britax Childcare, a U.K. company that bought BOB, originally called Beast of Burden, in 2011 — also spent $40,000 to hire a lobbyist last year to make its case on Capitol Hill and at the safety agency, according to disclosure documents. It was the first Washington lobbyist it had hired in recent history, the documents said.

The heart of Britax’s defense was that the stroller met the agency’s safety standards, so it could not be defective. The company was right about the standards. The BOB had passed a test that required the removable front wheel to stay on after a strong pull.

The company argued that a product defect required the violation of a safety standard.

That was the point Britax’s attorney, Timothy Mullin, made during a prehearing meeting in May about the litigation, according to a transcript obtained by the Post. The tires didn’t come off during testing, even with the quick release unlocked, Mullin told a judge, because of small indents that create a secondary retention system.

That’s correct, replied assistant general counsel Mary Murphy, the agency’s attorney. The stroller passed a test in the lab. But, she said, “it does not replicate what happens in real life, which is what we’re seeing when we have these defect scenarios.”

Murphy continued, “The fact that there is a standard is not a bar to a defect finding.”

STROLLERS
Tess Sawyer's BOB stroller was the subject of a Consumer Product Safety Commission case.
(Dustin Franz / For the Washington Post)

Other companies have voluntarily recalled products that haven’t violated a product standard, said Nancy Cowles, executive director of Kids in Danger. “They passed the standard, too,” Cowles said. “The standard simply didn’t keep up.”

Soon after that meeting with the judge, the balance of power on the commission swung to the Republicans. Robinson was replaced by Dana Baiocco, a Republican attorney who joined the commission from a Boston law firm where she defended companies against product liability claims.

The commission was now split 2 to 2 by political party. That change proved critical when the agency’s attorneys tried to subpoena three former BOB employees to discuss the quick release. The subpoena needed the commission’s approval.

Kaye and Adler, the two Democrats, voted for it. Buerkle and Baiocco voted against it. A tie vote meant the subpoena was denied.

“I just didn’t think it complied with the federal rules. Period,” Baiocco said in an interview with the Post. She said the subpoena was an undue burden.

The decision appeared to sink the agency’s case, according to several agency officials.

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The last vacancy on the commission was filled in September by Republican Peter Feldman, a former Senate staffer.

Two months later, just two days before Thanksgiving, Britax and the agency announced an end to the recall lawsuit with a settlement, which required the company to run a public safety campaign and offer replacement parts or discounts on new strollers to some users in what was clearly not a traditional safety recall. The commission voted 3 to 2 along party lines to accept it.

Feldman said in an interview he doubted going to trial “would have been able to bring back anything nearly as strong.”

“I think it was good for consumers,” Baiocco added.

Buerkle said in a statement that she recognized that it was a compromise, but that the deal “advances consumer safety.”

Adler and Kaye, who voted against the deal, wrote a dissent that questioned why Britax felt so strongly about avoiding the term “recall.” They also worried the agreement would become a model for settling future product disputes.

Robinson, the former commissioner, said the deal was a sign of what Britax had anticipated all along. “The only way this can be explained,” she said, “is they knew they could do whatever they wanted once the majority changed.”

“We fully respect the CPSC and its mission and we strive to work collaboratively with them, but we could not agree to recall a product that is not defective,” McCutcheon, Britax’s president, said in his statement to the Post.

In January, the company launched its information campaign instructing users how to correctly operate the quick release. At the heart of it was a safety video that ran more than nine minutes.

Britax also offered consumers different ways of securing the front wheel — a bolt or a modified quick release — or a 20% discount on a new stroller. The offer was limited to certain strollers made before October 2015 and was available for a single year, features that consumer advocates say make safety efforts less effective.

By the end of March, the Britax YouTube video had 195 views. Kaye was not surprised.

“Information campaigns are usually garbage,” Kaye said. “When one is genuinely seeking to protect consumers and the public, you almost never rely on an education campaign to do the job.”

Kaye worried more companies would want to avoid recalls with information campaigns. Already he detected companies were taking a harder line with the safety agency, and staff members were having a harder time getting their calls returned.

Sawyer, the mother in Ohio, didn’t know about the BOB’s quick-release problems until a Post reporter contacted her in February.

She didn’t know about Britax’s information campaign. She didn’t know about the potential fixes being offered.

Now, she’s afraid to use her BOB. She doesn’t want to take it out for a run. She doesn’t want to put her daughter in it, and she can’t imagine selling the stroller to someone.

Britax won its fight against a recall, she said. But it lost something, too.

“The trust,” she said, “is gone.”

Todd C. Frankel writes for the Washington Post.


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