The opinion of the court was delivered by: Barry, District Judge.
The stated intent of the manufacturer of the "Cutie Pie
Deluxe Gift Set" that this toy is suitable only for children of
at least three years of age is reasonable. The packaging of the
"Cutie Pie Deluxe Gift Set" specifically advises suitability
for "Ages Three and Up." Furthermore, the only expert testimony
regarding the reasonableness of this designation is the opinion
of Dorothy Drago ("Drago"), an independent product safety
consultant working for defendants, that because (1) the doll is
relatively hard, as opposed to soft and cuddly; (2) the doll's
limbs are not easily manipulated; (3) the doll's limbs and
features are detailed and realistic; (4) the numerous
accessories dictate a high level of complexity during play; and
(5) the colors are entirely pastel, rather than bright primary
colors, which younger children prefer, the labelling of the
"Cutie Pie Deluxe Gift Set" for children aged three and over is
clearly reasonable. Drago Dep. at 118, 125-26, 129; Drago Aff.
at ¶ 4; see also Aber Aff. at ¶ 4. Indeed, Carol Pollack-Nelson
("Pollack-Nelson"), an engineering psychologist employed by the
CPSC, concedes that the "Cutie Pie Deluxe Gift Set" is
appropriate for children over three. Pollack-Nelson Dep. at 87,
89. She fails, however, to specifically address the
reasonableness of the manufacturer's stated intent, concluding
only that the "Cutie Pie Deluxe Gift Set" has many
characteristics which appeal to children under three and that,
consequently, she herself determined that it is intended for
children under three years of age. See id. at 21-22;
Pollack-Nelson Decl. at ¶ 4; Pollack-Nelson Supp. Aff. at ¶ 8.
Accordingly, the reasonableness of the manufacturer's
designation that the "Cutie Pie Deluxe Gift Set" is intended
for children aged three and over is uncontested.
Likewise, the statement of the manufacturer of "Sesame
Street, Wind Up Ernie the Drummer" that this toy is intended
for children of at least three years of age is reasonable. The
"Sesame Street, Wind Up Ernie the Drummer" packaging
correspondingly carries the admonition "Ages Over Three Years."
Drago candidly admits that a determination as to whether
"Sesame Street, Wind up Ernie the Drummer" is intended for
children under three or children three and over is a close
question that hinges upon a judgment that either the windup
feature, which is appropriate for children three and older, or
the brightly colored and familiar Sesame Street Ernie
character, which carries large appeal with children under
three, is the dominant feature of the toy. Drago Dep. at
135-36; Drago Aff. at ¶ 5. Although she concedes after
"considerable reflection" that the Sesame Street feature is the
dominant characteristic of the toy, she nonetheless concludes
that the manufacturer's labelling of "Sesame Street, Wind Up
Ernie the Drummer" for children three and over is not
unreasonable. Drago Aff. at ¶ 5; see also Aber Aff. at ¶ 5.
Because Pollack-Nelson failed to pass upon the reasonableness
of designating "Sesame Street, Wind Up Ernie the Drummer" for
children of at least three years of age, see Pollack-Nelson
Dep. at 13-14; Pollack-Nelson Decl. at ¶ 5; Pollack-Nelson
Supp. Aff. at ¶ 9, Drago's careful consideration and
uncontested conclusion in support of the manufacturer's stated
intent will control.
Any rattle that fails to comply with the requirements of
16 C.F.R. § 1510 is a "banned hazardous substance" under the FHSA.
16 C.F.R. § 1500.18(a)(15). Pursuant to 16 C.F.R. § 1510, a
rattle must satisfy the Small Parts Regulation in conjunction
with "use and abuse" testing pursuant to 16 C.F.R. § 1500.51
both before and after a distinct safety test for rattles.
16 C.F.R. § 1510.3. Notwithstanding the "use and abuse" testing,
no portion of the rattle under its own weight and in a
non-compressed state can enter and penetrate the full depth of
the cavity centered within the Rattle Test Fixture whose
dimensions are set forth at Figure 1 of § 1510. 16 C.F.R. §§
1510.3 & 1510.4.
Plaintiff has submitted CPSC laboratory reports which
indicate that components separated from the "Crib Pals Shake &
Twist Rattle," the "Crib Pals Kitty Cat Lion Rattle," and the
"Crib Pals Play Shapes" when subjected to "use and abuse"
impact testing pursuant to 16 C.F.R. § 1500.51(b)(3), and that
these components fully penetrated the Rattle Test Fixture. See
Nelson Decl. at Exhs. 1, 3, 13. Defendants contend, however,
that the "Crib Pals Play Shapes" is "not really a rattle."
Moreover, defendants claim that based upon Jenkins' deposition
testimony the "Crib Pals Shake & Twist Rattle," the "Crib Pals
Kitty Cat Lion Rattle," and the "Crib Pals Play Shapes," like
"Pop Up Pals," were subjected to overly rigorous impact testing
and that the laboratory reports sanitized this improper
testing. For the same reasons set forth above, I reject that
contention out of hand. Finally, defendants assert that the
test results on the "Crib Pals Shake & Twist Rattle," the "Crib
Pals Kitty Cat Lion Rattle," and the
"Crib Pals Play Shapes" are inconclusive because the results
indicate that only two breaks occurred and that only six rather
than 12 sample items were tested, thus making a retest
For purposes of the FHSA, a "rattle" is defined as "an
infant's toy, intended to be hand held, usually containing
pellets or other small objects and which produces sounds when
shaken." 16 C.F.R. § 1510.2. The "Crib Pals Play Shapes" is
described by Carey as "a toy which contains a mirror, a
whistle, a squeaker and a rattle." Carey Aff. at ¶ 12. A
rattle, however, does not cease to be a rattle simply because
other ornaments are appended to it. Thus, the "Crib Pals Play
Shapes" is a rattle subject to the Rattle Regulation.
Furthermore, a retest is not appropriate for the "Crib Pals
Shake & Twist Rattle," the "Crib Pals Kitty Cat Lion Rattle,"
and the "Crib Pals Play Shapes." It is immaterial that the CPSC
tested less than twelve*fn6 of these rattles to arrive at two
breaks. CPSC enforcement policy is clear that two breaks
results in a finding that the tested product is a banned
hazardous substance, mandating that testing proceed on the 12
items only until two breaks are realized, and defendants have
not challenged this policy as arbitrary, capricious or an abuse
of discretion. See Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136
(1971). Notwithstanding the deposition testimony of Jenkins and
Hundemer which suggests that two breaks might, under some set
of circumstances, trigger a retest, Jenkins Dep. at 48-49;
Hundemer Dep. at 24-25, neither man had personal knowledge of a
retest after two breaks under any circumstances. Accordingly,
plaintiff has established that the "Crib Pals Shake & Twist
Rattle," the "Crib Pals Kitty Cat Lion Rattle," and the "Crib
Pals Play Shapes" are banned hazardous substances under the
2. "Crib Pals Tiny Tinkers 3 Piece Rattle Set," "Crib Pals
Tiny Tinker Rattle Copter," and "Baby Toy `Wooden Shaky
Plaintiff has submitted CPSC laboratory reports detailing
that components of the "Crib Pals Tiny Tinkers 3 Piece Rattle
Set;" the "Crib Pals Tiny Tinker Rattle Copter," which is one
component of that set; and the "Baby Toy `Wooden Shaky Head'
Rattle" fully penetrated the Rattle Test Fixture in the absence
of "use and abuse" testing. Nelson Decl. at Exhs. 7, 11. In
response, defendants argue only that Jenkins' deposition
testimony establishes that all test reports proffered by
plaintiff are unreliable and, thus, that these test results are
suspect. Having determined that Jenkins' testimony does not
indicate CPSC testing and/or reporting irregularities, I again
reject such rank speculation and find that plaintiff has
established that the "Crib Pals Tiny Tinkers 3 Piece Rattle
Set," the "Crib Pals Tiny Tinker Rattle Copter" and the "Baby
Toy `Wooden Shaky Head' Rattle" are banned hazardous substances
within the meaning of the FHSA.
In sum, plaintiff has established that defendant Toys "R" Us
has committed two violations of the CPSC and nine violations of
B. Reasonable Likelihood of Future Violations
The purpose of injunctive relief awarded pursuant to
statutory authority is not to punish a violator, but to deter
the violator from committing future violations. Securities and
Exchange Comm'n v. Bonastia, 614 F.2d 908, 912 (3d Cir. 1980).
In determining whether a movant has satisfied its burden of
showing a reasonable likelihood of future violations in the
absence of injunctive relief, courts generally consider, among
other factors, (1) the degree of scienter involved on the part
of the defendant; (2) the isolated or recurrent nature
of the infraction; (3) the defendant's recognition of the
wrongful nature of his conduct; (4) the sincerity of the
defendant's assurances against future violations; and (5) the
nature of the defendant's occupation. Id. It is deemed
important to consider as well the defendant's voluntary
cessation of challenged practices, City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070,
1074, 71 L.Ed.2d 152 (1982), the genuineness of the defendant's
efforts to conform to the law, Securities and Exchange Comm'n
v. Torr, 87 F.2d 446, 450 (2d Cir. 1937), the defendant's
progress towards improvement, United States v. Odessa Union
Warehouse Co-op, 833 F.2d 172, 176 (9th Cir. 1987), and the
defendant's compliance with any recommendations made by the
government. United States v. Sars of Louisiana, Inc.,
324 F. Supp. 307, 310 (E.D.La. 1971). Essentially, the court must
make a prediction of the likelihood of future violations based
upon an assessment of the totality of the circumstances
surrounding the violator and the violations that were
committed. Securities and Exchange Comm'n v. Bonastia, supra,
614 F.2d at 912.
I am troubled by aspects of defendants' past conduct with
regard to the safety of the toys and rattles that it has
imported and sold. Parents by the thousands placed their trust
in the professionalism and safety-consciousness of the nation's
largest children's specialty retail chain and purchased rattles
for their infants and toys for their young children, at least
some of which had the real potential to snuff out the very
lives that they were intended to enrich. Little did these
parents know that defendant Toys "R" Us' efforts at quality
control were, at best, ad hoc.
To a disinterested observer it may seem anomalous that while
defendants have committed two violations of the CPSA and nine
violations of the FHSA*fn7 and anticipate approximately 16
product recalls this fiscal year, plaintiff concedes that they
have not willfully or knowingly violated these laws. Certainly,
given the nature of the retail toy business and the position of
Toys "R" Us within that business, even with the most vigorous
efforts at quality control it is not surprising that something
can fall through the cracks. Toys "R" Us retails thousands of
different toys and rattles each year which it acquires from
hundreds of different foreign and domestic manufacturers and
suppliers.*fn8 To a certain extent, then, it was required to
rely upon these numerous manufacturers and suppliers to provide
only items that conform to the CPSA and the FHSA. However, up
until recently, with a system of form compliance "certificates"
from vendors and manufacturers and sporadic independent
testing, it relied too heavily upon others to assure that it
sells safe toys and rattles. From the nation's largest retailer
of children's toys more was required.
There are, however, many positive signs that Toys "R" Us is
now making substantial efforts at quality control, and has been
doing so since 1988. Toys "R" Us has not imported any of the
"Crib Pals" rattles since 1988, and has no future plans to sell
them or any other private label rattles. Carey Aff. at ¶ 11.
Moreover, upon notification by the CPSC of suspected
violations, the company ceased the importation and sale of
every product that has been determined herein to constitute
either a banned hazardous product under the CPSA or a banned
hazardous substance under the FHSA, as well as the two
products. Id. at ¶ 6. Indeed, Toys "R" Us stopped selling five
of the thirteen items at issue herein before a request to that
effect from the CPSC, and reported three of the thirteen to the
CPSC before the Commission had even collected testing samples.
Id. at ¶¶ 6, 8. Toys "R" Us has, as well, cooperated in and
successfully executed every product recall requested by the
CPSC, except for two instances in which the company contested
the finding of a possible violation and the CPSC determined
that test results were incorrect. Id. at ¶ 7.
I am persuaded that Toys "R" Us' commitment to product safety
is genuine, rather than a reaction to the initiation of this
August 1990 legal action, although it certainly appears that
the most significant steps taken in fulfillment of that
commitment were in reaction to the growing number of
violations. In 1988, Toys "R" Us formed a Corporate Product
Safety Committee which holds formal quarterly meetings as well
as special sessions to address particular safety issues.
Id. at ¶ 17. The company also periodically sponsors corporate
seminars regarding CPSC guidelines and requirements. Id. at ¶
18. Moreover, in February 1989, Toys "R" Us distributed to all
of its buyers and merchandise managers a new in-house
publication entitled "Comprehensive Handbook on Product Safety
and Regulatory Compliance." Id. at ¶ 19.
Most importantly, however, the company hired ACTS Testing
Labs, Inc. ("ACTS") in or about May 1989 to design and
implement a comprehensive testing and inspection program.
Id. at ¶ 20. Toward that end, ACTS reviewed all of Toys "R" Us'
domestic and imported private label items to ensure compliance
with federal safety regulations. Id. This testing of more than
600 toys resulted in only one recall, the "Music Master
Xylophone," which the company initiated by promptly informing
the CPSC of the potential safety hazard. Id. at ¶ 21.
Significantly, by January 1991, ACTS will begin to test every
product for which Toys "R" Us is the importer of record for
conformance with the provisions of the CPSA and the FHSA, both
private and non-private label products. Id. at ¶ 22.
[t]he inspection system [to be] employed by the
defendants is capable of and should result in
immediate detection of any contaminated products,
and there is certainly nothing in the evidence
before this Court to indicate that if such
contaminated products are detected, that the
defendant[s] will not immediately take the
necessary steps to eliminate such contamination.
United States v. Sars of Louisiana, Inc., supra, 324 F. Supp. at
Parenthetically, I note with some dismay that plaintiff
appeared more interested in filing this action and obtaining an
injunction than in responding to defendants' appeals for
guidance in improving its quality control procedures, even
assuming that those appeals were not entirely altruistic. In a
ten-page letter to plaintiff dated May 9, 1990, Toys "R" Us
outlined its then current safety procedures, explained intended
improvements to those procedures, and requested suggestions for
modifications and additional improvements, yet received a
negative response. Toys "R" Us was again rebuffed by plaintiff
in response to a letter of May 29, 1990 which suggested a
meeting between the top management of the company and the
Commissioners of the CPSC to discuss safety procedures. Indeed,
during a telephone conversation with plaintiff on May 31, 1990,
the company appealed for any input from the CPSC regarding
safety procedures with the goal of reaching a written agreement
and again proposed a high-level meeting, but was told by
plaintiff that it would take no initiative in the absence of a
consent injunction. Finally, in a letter dated June 26, 1990,
Toys "R" Us, in addition to making a third request for a
meeting between top executives and the Commissioners, detailed
its frustration at the absence of any reformatory guidance from
the CPSC and the perceived preoccupation of plaintiff with
seeking injunctive relief. In response, plaintiff filed suit.
Indeed, this unwillingness to provide quality-control guidance
and insistence upon a consent injunction was articulated at
oral argument when, in answer to the court's inquiry as to why
not talk to Toys "R" Us about what it was required to do,
counsel responded "they want to be in business, let them figure
[it] out." Tr., Oct. 30, 1990, at 51.
Whether defendants are reasonably likely to violate the CPSA
and the FHSA in the future is a close question if for no other
reason than, given Toys "R" Us' sheer size and volume, a
slip-up is not unimaginable. However, considering the totality
of the circumstances, I believe that injunctive relief is not
warranted. The deciding factor in reaching this decision is
defendants' representation, which I find credible and accept,
that ACTS will begin testing all private and non-private label
products for which Toys "R" Us is importer of record by January
1991. I note that in the absence of timely imposition of this
broad testing program and improvements of that program when
improvements are deemed necessary, a court might well conclude
that injunctive relief is appropriate when faced with even one
additional violation of the CPSA or the FHSA. For now, however,
plaintiff has not established a reasonable likelihood of future
violations of the CPSA or the FHSA by defendants and, thus, its
motion for an injunction is hereby denied.
There being no basis for statutory injunctive relief, the
only relief plaintiff requested in its complaint, the complaint
will be dismissed and defendants' motion for summary judgment
denied as moot. With regard to defendants' motion for
sanctions, it is clear that plaintiff's conduct in instituting
this action was not "frivolous, legally unreasonable, or
without factual foundation." See Lieb v. Topstone Indus., Inc.,
788 F.2d 151, 157 (3d Cir. 1986).