Loophole Made Simplicity Bassinet Recall DifficultSep 2, 2008 | Parker Waichman LLP
Last week's Simplicity Bassinet recall highlights the difficulty often faced by the Consumer Products Safety Commission (CPSC) efforts to get dangerous products off of the market. Despite a recent law that gave the agency new powers, the CPSC had to ask retailers to recall the Simplicity Bassinets - which killed two babies - because the company that now owns Simplicity refused to recall the beds.
The Simplicity Bassinet recall followed the death of a six-month old girl in Kansas last month. Police in Shawnee, Kansas said the baby became caught in the metal bars of a 4-in-1 Bassinet. As a result, she was strangled.
Last September, the same bassinet claimed the life of a 4-month-old Missouri girl. The infant had slipped out the side of the bassinet between a lower horizontal railing and her mattress, and had become trapped in a 4-inch gap between the railing and top of the mattress. The little girl’s death was ruled an “accidental positional asphyxiation.”
According to the CPSC, the bassinets contain metal bars paced farther apart than 2 3/8 inches, the maximum distance allowed under federal crib safety standards. This defect poses a strangulation hazard. Parents and caregivers should stop using the Simplicity Bassinet immediately and return it to the store where purchased for a refund or store credit. Last week, the agency announced that several retailers, including Wal-Mart, Toys “R” Us, Kmart, Big Lots, Target and J.C. Penney, have voluntary agreed to stop selling Simplicity 3-in-1 and 4-in-1 Convertible “Close-Sleeper” model bassinets. Consumers who purchased the bassinets could return them to the store for a refund.
When the Missouri child died last fall, Simplicity was already in dire financial straits, owing to another massive crib recall it had issued earlier in the summer. With creditors circling, Simplicity sold its assets at auction two months later. According to The Washington Post, the assets were purchased by SFCA Inc., an affiliate of Blackstreet Capital, a Bethesda, Maryland private-equity fund with $88 million dollars under management.
Under the deal, SFCA bought the right to sell products under the Simplicity brand but did not take legal responsibility for products made under its previous owners. So when the CPSC asked SFCA to recall the deadly bassinets, it refused.
According to a statement released by SFCA, it and Simplicity Inc. are completely distinct companies, and the products in question were manufactured by Simplicity Inc. SFCA also said that a court order had released it from liability for any products made by Simplicity before it acquired its assets. Finally, SFCA said that the CPSC press release warning of the bassinet mischaracterized SFCA's ongoing cooperation with the agency.
Despite the legal loopholes that let SFCA off the hook, the CPSC could have issued the bassinet recall after the first death in Missouri. That incident occurred months before the Simplicity assets were sold. Such quick action might have also saved the little girl in Kansas who died last month. But for some reason, the CPSC did nothing when it was informed of the death.
A lawyer for that child's family asked the CPSC just days after the baby's death to recall the bassinet. No one from the agency called him back. The sheriff who investigated the death told The Chicago Tribune that he heard from the CPSC. But he says it never asked him for his reports—and wouldn't share its findings with him.
For its part, spokeswoman Julie Vallese told the Chicago Tribune that the CPSC did not recall the bassinet last fall because “the investigation of a baby’s death remains open because there are still questions surrounding the circumstances of that baby’s death.”
But the coroner who investigated that baby’s death told the Tribune that is not true. “It was clear-cut,” McDonald County Coroner B.J. Goodwin III said. “We all felt it was the crib that caused the passing.”