Trade Update: CPSC Urges Importers, Distributors, and Retailers to Stop Importing, Distributing, and Selling Roller Ball Candy-type Products

Today, the U.S. Consumer Product Safety Commission (CPSC), which is charged with protecting the public from unreasonable risk of injury or death associated with the use of thousands of types of consumer products, is warning consumers about the choking risk associated with roller ball candy type products and advises them not to buy or use these products. In line with this consumer warning, CPSC is urging importers, distributors, and retailers to immediately stop commercial distribution of these products.

CPSC, in conjunction with U.S. Customs and Border Protection (CBP), employs a risk-based targeting methodology that looks for shipments that contain potentially noncompliant products. Industry can anticipate that CBP will likely heighten border enforcement by targeting imports of roller ball candy-type products based on product Harmonized Tariff Schedule (HTS) codes. If shipments of the candy become the subject of enforcement efforts (i.e. are detained by CBP or CPSC), we believe it unlikely that any company would be able to overcome the safety choking standards and successfully obtain release of the cargo into U.S. commerce, due to the inherent design of the product.

Importers that may have goods on the water may want to avert the risk of detention and seizure by directing vessels currently transporting roller ball candy to the US to divert to a port outside of the US for unlading, or to return to the port of lading if they want to return the goods to the seller.   In addition, importers will need to examine their contracts to see what kind of provisions may apply if they decide to return/reject a shipment. 

Separately, there may also be significant potential commercial liability and liability to private plaintiffs. Thus, even absent government actions, industry members should be aware of litigation risks and manage them appropriately.

The following links are the recent recalls involving roller ball candy (we note that these recalls were manufacturer-specific). 

• • Candy Rolling Candy Recalled Due to Choking Hazard; One Death Reported

• • Rolling Liquid Candies Recalled Due to Choking Hazard

• • Roller Ball Candy Recalled Due to Choking Hazards

CBP regulations provide strict timelines for CBP to decide on whether to release held or detained goods; otherwise, by operation of law, during specific timeframes, held goods will be automatically detained, and detained goods will be automatically excluded from entry into the U.S.  We note that importers may contest CBP exclusion of an entry by filing an administrative protest; however, CPSC detention decisions are not subject to protest. See 19 CFR § 151.16 (f). Knowing the regulations CBP must follow and the rights an importer has as well as what strategy to follow can prevent timely and costly customs administrative proceedings, such as the seizure and/or protests of detained goods.

Our customs, trade, and litigation team regularly assist importers during detention and seizure proceedings. If you have received a CPSC Notice of Violation, a CBP Notice of Detention or a Notice of Seizure, our team of experienced customs attorneys can assist. We will continue to monitor and provide updates as necessary.