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Recalls in October 2012

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    Court Upholds Secrecy in Product Safety Lawsuit

    First legal test of Consumer Product Safety Commission's new database is a flop

    The First Amendment gives citizens very broad rights to publish information about other citizens, about the government and about private companies.

    While publishers may later face civil lawsuits for slander and defamation, it is very unusual for courts to bar publication in advance -- a practice known as prior restraint.

    No such protection applies to government agencies, however. After all, the First Amendment and the rest of the Bill of Rights were written to protect against government, not to protect government itself.

    This does not stop goverment agencies from acting as publishers, but it puts them in a shaky position when challenged, as the Consumer Product Safety Commission (CPSC) is learning, now that a federal court has sealed all details of a lawsuit filed by an anonyous company against the agency, preventing the public from learning not just the details of the lawsuit, which concerns an injury allegedly caused by a defective product but also seals from public view the name of the company involved.

    "Interestingly, although the CPSC has no First Amendment rights in this situation, it's the public and the press who will exercise those rights to vindicate the CPSC's interests," said Cameron Stracher, a New York City attorney who represents ConsumerAffairs and other publishers.

    Blacked out

    The court’s opinion, released earlier this week with key portions blacked out, indicates that the case, originally filed in October 2011, was decided in the company’s favor more than two months ago after nine months of proceedings conducted out of public view and without opportunity for public participation.

    The unusual secrecy -- more befitting a classified military document than a product liability case -- is bringing howls of protest from consumer organizations, including Public Citizen, Consumer Federation of America and Consumers Union, which are appealing the decision.

    The decision not only prevents the public from seeing the company’s name and relevant court findings, it also bars the CPSC from posting to its online consumer complaint database the report of consumer injury about which the company sued.

    “Adjudicating this first-ever challenge to the consumer product safety database in secret, based on secret evidence, and with a secret plaintiff, is at odds with the First Amendment and our tradition of open judicial proceedings,” said Scott Michelman, the Public Citizen attorney representing the three organizations. “The public has a strong interest in the outcome of this lawsuit and a correspondingly strong right to learn who is involved and the factual basis for the court’s decision to exempt a product report from the database.”

    Searchable database

    The CPSC’s searchable online database, available at www.saferproducts.gov, was launched in March 2011 to provide consumers with information about potentially dangerous products after a spate of product recalls. Nearly 9,000 reports had been filed as of June 2012.

    Privately-operated publishers, like ConsumerAffairs, display hundreds of thousands of consumer reviews and complaints. Although lawsuits have occasionally resulted from publishing such complaints, no court has ever restrained publication by ConsumerAffairs in advance.  Although settlements of such suits are sometimes sealed, the initial proceedings remain public, a ConsumerAffairs official said. 

    “The court blocked the CPSC from publishing a report of harm, but the facts underlying the decision are entirely blacked out,” said Rachel Weintraub, director of product safety and senior counsel for Consumer Federation of America. “The court’s seal prevents the public from assessing the court’s reasoning, and understanding its impact on the integrity of the CPSC database.”

    The CPSC database is modeled after databases on the websites of the National Highway Traffic Safety Administration, created in 1996 to provide access to consumer complaints about automobiles, and the Food and Drug Administration, also available since 1996, which describes adverse event reports made by hospitals, manufacturers and others about drugs and medical devices.

    The CPSC is required by law to post consumer complaints within 20 business days of receiving them. Before complaints are posted, the product manufacturers are notified and given a chance to respond. If the information submitted is shown to be untrue, the complaint is corrected or removed from the database.

    “The CPSC database is a critical tool for informing consumers and consumer advocates about potential safety concerns related to a wide variety of products,” explained Ami Gadhia, senior policy counsel for Consumers Union.

    The First Amendment gives citizens very broad rights to publish information about other citizens, about the government and about private companies.While ...
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    Publix Recalls Premium Frozen Tempura Shrimp

    The dipping souce contains an undeclared allergen -- soy

    Publix Super Markets is recalling 11oz. Publix Premium Frozen Tempura Shrimp.

    The company discovered during internal product evaluations that the dipping sauce packet included with the product contains soy that is not declared on the packaging. People who have an allergy or severe sensitivity to soy run the risk of a serious or life-threatening allergic reaction if they consume products containing soy. No illnesses have been reported to date.

    Consumers who have purchased the product in question may return it to their local store for a full refund.”

    Anyone with additional questions may call Publix’s Customer Care Center at 1-800-242-1227 or contact the U.S. Food and Drug Administration at 1-888-SAFEFOOD (1-888-723-3366).

    Publix Super Markets is recalling 11oz. Publix Premium Frozen Tempura Shrimp. The company discovered during internal product evaluations that the dipping...
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    Kellogg's Recalls Mini-Wheats

    Flexible metal mesh from a faulty manufacturing part was found in the package

    Kellogg's is recalling Frosted Mini-Wheats Bite Size Original and Mini-Wheats Unfrosted Bite Size with the letters KB, AP or FK before or after the Best If Used Before date.

    The recall is due to the possible presence of fragments of flexible metal mesh from a faulty manufacturing part.

    The following products are affected:

    Kellogg's Frosted Mini-Wheats Bite Size Original cereal

    • UPC 3800031829 - 18-ounce carton with Better if Used Before Dates between APR 01 2013 KB - SEP 21 2013 KB
    • UPC 3800073444 - 18-ounce carton with Better if Used Before Dates between APR 01 2013 KB - SEP 21 2013 KB
    • UPC 3800031834 - 24-ounce carton with Better if Used Before Dates between APR 01 2013 KB - SEP 21 2013 KB
    • UPC 3800046954 - 30-ounce carton with Better if Used Before Dates between APR 01 2013 KB - SEP 21 2013 KB
    • UPC 3800031921 - 70-ounce club store carton with Better if Used Before Dates APR 01 2013 KB - JUL 29 2013 KB
    • UPC 3800004961 - single-serve bowl with Better if Used Before Dates between 04013 KB - 09213 KB
    • UPC 3800021993 - single-serve carton with Better if Used Before Dates between AP 04013 - AP 09213 or FK 04013 - FK 09213

    Kellogg's Mini-Wheats Unfrosted Bite Size cereal

    • UPC 3800021983 - single serve carton with Better if Used Before Dates between FK 04013 - FK 09213
    • UPC 3800035982 -18-ounce carton with Better if Used Before Dates between APR 01 2013 KB - SEP 21 2013 KB

    Consumers with affected product or who have questions may call Kellogg at 800-962-1413 from 8 am to 6 pm Eastern Time, Monday - Friday.

    Kellogg's is recalling Frosted Mini-Wheats Bite Size Original and Mini-Wheats Unfrosted Bite Size with the letters KB, AP or FK before or after the Best If...
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      Herring Fillets ‘Atlantic Recipe’ in Oil Recalled

      The product is contaminated with Listeria monocytogenes

      Four Seasons Dairy of Brooklyn, NY, is recalling Herring Fillets "Atlantic Recipe" in oil in 16.66 ounces/500g because it may be contaminated with Listeria monocytogenes.

      The product comes in a 16.66 oz/500g clean plastic tub with an expiration date of 12/11/12 stamped on the bottom. The recalled herring fillets were distributed nationwide and are a product of the Ukraine.

      The contamination was discovered after sampling by New York State Department of Agriculture and Market Food Inspectors and subsequent analysis by Food Laboratory personnel revealed the presence of Listeria monocytogenes.

      No illnesses have been reported to date in connection with this problem.

      Consumers who have purchased 16.66oz/500g of Herring Fillets "Atlantic Recipe" in oil are advised not to eat them, but should return them to the place of purchase.

      Those with questions may contact the company at 718-567-7877.

      Four Seasons Dairy of Brooklyn, NY, is recalling Herring Fillets "Atlantic Recipe" in oil in 16.66 ounces/500g because it may be contaminated with Listeria...
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      Sharper Image USB Wall Chargers Recalled

      The devices can overheat, posing a fire and burn hazard

      Atomi of New York is recalling about 80,000 Sharper Image USB wall chargers, which can overheat and smoke, posing fire and burn hazards to consumers. Atomi has received 13 reports of the chargers overheating, smoking and acrid smells. No injuries have been reported.

      This recall involves Sharper Image USB wall chargers with model numbers “TSI202” and “TSI260.” The wall chargers are used to recharge MP3 players and other electronic devices through a USB connection. The chargers are black plastic and measure about 2 ½ inches high by 1 ½ inches wide. “The Sharper Image” is printed on the top. The model number is printed on bottom of the charger,

      The chargers, manufactured in China, were sold at Burlington Coat Factory, Tuesday Morning and TJ Maxx stores and on various Websites from October 2011 through September 2012 for between $8 and $13.

      Consumers should immediately stop using the recalled wall chargers and contact Atomi for instructions on returning the chargers for a full refund.

      The company can be reached by phone at (800) 790-1440, 9 a.m. to 5 p.m. ET Monday through Friday, or by emailing info@atominy.com.

      Atomi of New York is recalling about 80,000 Sharper Image USB wall chargers, which can overheat and smoke, posing fire and burn hazards to consumers. Atomi...
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