Notice2022-16816
The TJX Companies, Inc.
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 5, 2022
Issuing agencies
Consumer Product Safety Commission
Abstract
The Commission publishes in the Federal Register any settlement that it provisionally accepts under the Consumer Product Safety Act. Published below is a provisionally accepted Settlement Agreement with The TJX Companies, Inc., containing a civil penalty in the amount of $13 million, subject to the terms and conditions of the Settlement Agreement.
Full Text
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<title>Federal Register, Volume 87 Issue 150 (Friday, August 5, 2022)</title>
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[Federal Register Volume 87, Number 150 (Friday, August 5, 2022)]
[Notices]
[Pages 48004-48007]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16816]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 22-C0003]
The TJX Companies, Inc.
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
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SUMMARY: The Commission publishes in the Federal Register any
settlement that it provisionally accepts under the Consumer Product
Safety Act. Published below is a provisionally accepted Settlement
Agreement with The TJX Companies, Inc., containing a civil penalty in
the amount of $13 million, subject to the terms and conditions of the
Settlement Agreement.
DATES: Any interested person may ask the Commission not to accept this
agreement or otherwise comment on its contents by filing a written
request with the Office of the Secretary by August 22, 2022.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to Comment 22-C0003, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone: (240) 863-8938 (mobile), (301) 504-7479
(office); email: <a href="/cdn-cgi/l/email-protection#36554645551b5945765546455518515940"><span class="__cf_email__" data-cfemail="f192818292dc9e82b192818292df969e87">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Rosalee Thomas, Trial Attorney,
Division of Enforcement and Litigation, Office of Compliance and Field
Operations, Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, Maryland 20814-4408; <a href="/cdn-cgi/l/email-protection#f78595839f989a9684b794878494d9909881"><span class="__cf_email__" data-cfemail="522030263a3d3f332112312221317c353d24">[email protected]</span></a> or 301-504-7656.
SUPPLEMENTARY INFORMATION: The Commission voted (4-0-1) to
provisionally accept the proposed Settlement Agreement and Order
pertaining to The TJX Companies, Inc. Chair Hoehn-Saric, Commissioners
Baiocco, Trumka and Boyle voted to provisionally accept the Settlement
Agreement and Order. Commissioner Feldman voted to take other action.
The text of the Agreement and Order appears below.
Dated: August 2, 2022.
Alberta E. Mills,
Secretary.
United States of America Consumer Product Safety Commission
In the Matter of: The TJX Companies, Inc., CPSC Docket No. 22-C0003
Settlement Agreement
1. In accordance with the Consumer Product Safety Act, 15 U.S.C.
2051-2089 (``CPSA'') and 16 CFR 1118.20, The TJX Companies, Inc.
(``TJX''), and the United States Consumer Product Safety Commission
(``Commission''), through its staff, hereby enter into this Settlement
Agreement (``Agreement''). The Agreement and the incorporated attached
Order resolve staff's charges set forth below.
The Parties
2. The Commission is an independent federal regulatory agency,
established pursuant to, and responsible for, the enforcement of the
CPSA, 15 U.S.C. 2051-2089. By executing the Agreement, staff is acting
on behalf of the Commission, pursuant to 16 CFR 1118.20(b). The
Commission issues the Order under the provisions of the CPSA.
3. TJX is a corporation, organized and existing under the laws of
the state of
[[Page 48005]]
Delaware, with its principal place of business in Framingham,
Massachusetts.
Staff Charges
4. Between March 2014 and October 2019, TJX knowingly sold, offered
for sale, and distributed into commerce at least 1,205 units of 21
different recalled consumer products online and at its brick and mortar
retail stores (``Recalled Products'') described in paragraph 5, below
in violation of Section 19(a)(2)(B) of the CPSA, 15 U.S.C.
2068(a)(2)(B).
5. The Recalled Products include:
<bullet> StyleCraft Upholstered Benches
<bullet> Bollinger Fitness Resistance Bands
<bullet> Linon Home Foldable Wood Patio Chairs
<bullet> MZ Berger Children's Light-Up Watches
<bullet> Calphalon Pizza Wheels
<bullet> Ivanka Trump Scarves
<bullet> HVTM Foldable Lounge Chairs
<bullet> Swagway Hoverboards
<bullet> Calphalon Cutlery Knives
<bullet> Kids II Oball Rattles
<bullet> Bradshaw Int'l Coffee Presses
<bullet> Glass Beer Mugs
<bullet> Sharper Image/Frigidaire Mandoline Slicers
<bullet> Carter's Children Cardigan Sets
<bullet> Swivel Barstools
<bullet> Jimco Bistro Chair
<bullet> Glass & Ceramic Drawer Knobs
<bullet> Fisher-Price Rock `n Play Sleepers
<bullet> Kids II Rocking Sleepers
<bullet> Ion Audio Portable Speakers
<bullet> Fisher-Price Inclined Sleeper Accessory for Play Yards
6. The hazards posed by the Recalled Products include, but are not
limited to death, fire, explosion, burn, laceration, and choking. Of
the 1,205 units sold post-recall, 960 units posed a risk of infant
fatalities. These products include Fisher-Price Rock `n Play Sleepers,
for which the CPSC and the recalling manufacturer reported receiving 30
reports of infant fatalities; Kids II Rocking Sleepers, for which the
CPSC and the recalling manufacturer reported receiving 5 reports of
infant fatalities; and Fisher-Price Inclined Sleeper Accessory for Play
Yards. None of the reported fatalities identified TJX as the retailer
of the product.
7. Each of the Recalled Products listed above in paragraph 5 were
subject to voluntary corrective action taken by TJX or by the
manufacturers in consultation with the Commission. Each of these
recalls was also publicized by TJX or the manufacturers in consultation
with the Commission, of which the Commission also notified the public.
TJX knew, or should have known, of the voluntary corrective action
taken for each Recalled Product.
8. The Recalled Products are ``consumer products,'' and, at all
relevant times, TJX was a ``retailer'' of these consumer products,
which were ``distributed in commerce,'' as those terms are defined or
used in sections 3(a)(5), (8) and (13) of the CPSA, 15 U.S.C.
2052(a)(5), (8), and (13).
9. Under CPSA section 19(a)(2)(B), 15 U.S.C. Sec. 2068(a)(2)(B),
it is unlawful for any person to sell, offer for sale, manufacture for
sale, distribute in commerce, or import into the United States, any
consumer product that is subject to voluntary corrective action taken
by the manufacturer, in consultation with the Commission, of which
action the Commission has notified the public, or if the seller,
distributor, or manufacturer knew, or should have known, of such
voluntary corrective action.
10. Pursuant to section 20(a)(1) of the CPSA, 15 U.S.C. 2069(a)(1),
any person who ``knowingly'' violates CPSA section 19 is subject to
civil penalties. Under section 20(d) of the CPSA, 15 U.S.C. 2069(d),
the term ``knowingly'' means: ``(1) the having of actual knowledge, or
(2) the presumed having of knowledge deemed to be possessed by a
reasonable man who acts in the circumstances, including knowledge
obtainable upon the exercise of due care to ascertain the truth of
representations.''
11. TJX sold, offered for sale, and distributed Recalled Products
because TJX failed to implement adequate procedures to accurately
identify, quarantine, and prevent the sale, offer for sale, and
distribution of the Recalled Products. The deficiencies in TJX's
reverse logistics and compliance programs allowed Recalled Products to
reenter commerce.
12. On October 10, 2017, TJX notified Commission staff that TJX
discovered that it had sold one Recalled Product post-recall. TJX
updated the Commission staff regarding identified post-recall sales of
two Recalled Products- the Glass Beer Mugs and Swivel Barstools. On
February 21, 2019, TJX stated that it was ``implementing a process to
conduct periodic checks to confirm the SKU blocks that have been
established in connection with CPSC recalls are functioning properly,''
and would undertake a ``comprehensive review of all recalls conducted
in cooperation with CPSC over a period of more than five years from
January 2014 to date of products sold by TJX.'' By March 20, 2019,
based on its internal review, TJX reported that it had sold 232 units
of 14 separate products post-recall. On September 5, 2019, TJX notified
the Commission staff that it sold additional units of Recalled Products
post-recall at T.J. Maxx, Marshalls and HomeGoods stores, including
approximately: (1) 248 units of Fisher-Price Rock `n Play Sleeper; sold
post-recall between April 15, 2019 and August 26, 2019 at T.J. Maxx,
Marshalls and HomeGoods stores; (2) 127 units of Kids II Rocking
Sleeper; sold between April 29, 2019 and August 26, 2019 at T.J. Maxx,
Marshalls and HomeGoods stores; and (3) 35 units of Fisher-Price
Inclined Sleeper Accessory for Play Yards sold between June 28, 2019
and August 26, 2019 at T.J. Maxx and Marshalls stores.
13. Upon completion of the compliance investigation, on November
26, 2019, Commission and TJX jointly issued a press release announcing
that TJX had sold approximately 1200 units of 19 different Recalled
Products between 2014 and 2019. Even after the public announcement, TJX
offered for sale a different recalled good (not included as one of the
listed Recalled Products) to consumers as late as July 3, 2021, when a
customer was injured in a TJX Florida store while attempting to sit on
a recalled outdoor wooden folding chair that TJX recalled 2 months
earlier.
14. TJX paid two prior civil penalties to the Commission in 1998
and 2009.
15. TJX knew and/or should have known of these sales of Recalled
Products.
16. TJX's sale and distribution of the Recalled Products was
``knowing,'' as that term is defined in section 20(d) of the CPSA, 15
U.S.C. 2069(d).
17. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, TJX is
subject to civil penalties for its knowing sale of the Recalled
Products, in violation of section 19(a)(2)(B) of the CPSA, 15 U.S.C.
2068(a)(2)(B).
Response of TJX
18. TJX's settlement of this matter does not constitute an
admission of the staff's charges as set forth in paragraphs 4 through
17.
19. TJX prohibits the sale of recalled products. The company has
had processes and procedures to implement recalls, including to remove
recalled products from the sales floors of its stores and to implement
SKU blocks and thereby prevent post-recall sales.
20. Throughout this matter, TJX worked cooperatively with CPSC
staff and voluntarily notified staff of the post-recall sales that TJX
identified through an internal review that TJX undertook at its own
initiative.
21. TJX has enhanced its processes and procedures over time to
further reduce the risk of post-recall sales.
22. TJX enters into this Agreement to settle this matter without
the delay and
[[Page 48006]]
unnecessary expense of litigation. TJX does not admit that it violated
the CPSA or any other law, and TJX's willingness to enter into this
Agreement and Order does not constitute, nor is it evidence of, an
admission by TJX of liability or violation of any law.
Agreement of the Parties
23. Under the CPSA, the Commission has jurisdiction over the matter
involving the Recalled Products described in this Agreement and over
TJX.
24. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by TJX or a
determination by the Commission that TJX violated the CPSA.
25. In settlement of staff's charges, and to avoid the cost,
distraction, delay, uncertainty, and inconvenience of protracted
litigation or other proceedings, TJX shall pay a civil penalty in the
amount of thirteen million dollars ($13,000,000) within thirty (30)
calendar days after receiving service of the Commission's final Order
accepting the Agreement. All payments to be made under the Agreement
shall constitute debts owing to the United States and shall be made by
electronic wire transfer to the United States via <a href="https://www.pay.gov">https://www.pay.gov</a>,
for allocation to, and credit against, the payment obligations of TJX
under this Agreement. Failure to make such payment by the date
specified in the Commission's final Order shall constitute Default.
26. All unpaid amounts, if any, due and owing under the Agreement,
shall constitute a debt due and immediately owing by TJX to the United
States, and interest shall accrue and be paid by TJX at the federal
legal rate of interest set forth at 28 U.S.C. 1961(a) and (b) from the
date of Default, until all amounts due have been paid in full
(hereinafter ``Default Payment Amount'' and ``Default Interest
Balance''). TJX shall consent to a Consent Judgment in the amount of
the Default Payment Amount and Default Interest Balance, and the United
States, at its sole option, may collect the entire Default Payment
Amount and Default Interest Balance, or exercise any other rights
granted by law or in equity, including, but not limited to, referring
such matters for private collection, and TJX agrees not to contest, and
hereby waives and discharges any defenses to, any collection action
undertaken by the United States, or its agents or contractors, pursuant
to this paragraph. TJX shall pay the United States all reasonable costs
of collection and enforcement under this paragraph, respectively,
including reasonable attorney's fees and expenses.
27. After staff receives this Agreement executed on behalf of TJX,
staff shall promptly submit the Agreement to the Commission for
provisional acceptance. Promptly following provisional acceptance of
the Agreement by the Commission, the Agreement shall be placed on the
public record and published in the Federal Register, in accordance with
the procedures set forth in 16 CFR 1118.20(e). If the Commission does
not receive any written request not to accept the Agreement within
fifteen (15) calendar days, the Agreement shall be deemed finally
accepted on the 16th calendar day after the date the Agreement is
published in the Federal Register, in accordance with 16 CFR
1118.20(f).
28. This Agreement is conditioned upon, and subject to, the
Commission's final acceptance, as set forth above, and it is subject to
the provisions of 16 CFR 1118.20(h). Upon the later of: (i)
Commission's final acceptance of this Agreement and service of the
accepted Agreement upon TJX, and (ii) the date of issuance of the final
Order, this Agreement shall be in full force and effect, and shall be
binding upon the parties.
29. Effective upon the later of: (1) the Commission's final
acceptance of the Agreement and service of the accepted Agreement upon
TJX and (2) and the date of issuance of the final Order, for good and
valuable consideration, TJX hereby expressly and irrevocably waives and
agrees not to assert any past, present, or future rights to the
following, in connection with the matter described in this Agreement:
a. an administrative or judicial hearing;
b. judicial review or other challenge or contest of the
Commission's actions;
c. a determination by the Commission of whether TJX failed to
comply with the CPSA and the underlying regulations;
d. a statement of findings of fact and conclusions of law; and
e. any claims under the Equal Access to Justice Act.
30. TJX shall maintain a compliance program and a system of
internal controls and procedures designed to ensure compliance with the
CPSA with respect to any consumer product imported, manufactured,
distributed or sold by TJX, which shall contain the following elements:
a. written standards, policies and procedures, including those
designed to ensure that information that may relate to or impact CPSA
compliance, whether or not an injury is referenced, is conveyed
effectively to personnel responsible for CPSA compliance;
b. procedures for reviewing claims and reports for safety concerns
and for implementing corrective and preventive actions when compliance
deficiencies or violations are identified;
c. procedures requiring that information required to be disclosed
by TJX to the Commission is recorded, processed and reported in
accordance with applicable law;
d. procedures requiring that all reporting made to the Commission
is timely, truthful, complete, accurate and in accordance with
applicable law;
e. procedures requiring that prompt disclosure is made by
applicable employees with responsibilities for TJX's product compliance
program to senior management of any significant deficiencies or
material weaknesses in the design or operation of such compliance
program or internal controls that affect adversely, in any material
respect, TJX's ability to record, process and report to the Commission
in accordance with applicable law;
f. mechanisms to communicate to all applicable TJX employees
through training programs or otherwise, company policies and procedures
to prevent violations of the CPSA;
g. a program for the appropriate identification, quarantine and
disposition of recalled goods; the program currently includes, but is
not limited to:
i. implementation and maintenance of stock keeping unit (SKU)
blocks at points of sale, reinforced informational technology (IT)
coverage for SKU blocks, and maintenance of SKU blocks of recalled
products without a time limit;
ii. a product master database that consolidates product style
information of TJX's brick and mortar retail chains, including T.J.
Maxx, Marshalls, HomeGoods and Homesense;
iii. dissemination to stores of recall-related communications and a
catalog of recalled product information; and
iv. labeling and quarantine of recalled products prior to
disposition;
h. Senior management responsibility for, and general oversight of,
TJX's product compliance program; this is currently carried out through
means including, but not limited to:
i. establishment of a Vice President, Risk and Compliance position
that oversees the Product Compliance group;
ii. assignment of staff resources sufficient to implement CPSA
compliance processes and procedures, including recalled product
identification; and
[[Page 48007]]
iii. establishment of a cross-functional program team tasked with
implementing TJX's product safety process, including recall management;
iv. a mechanism for confidential and/or anonymous employee
reporting of compliance-related questions or concerns to either a
compliance officer or to another senior manager with authority to act
as necessary; and
v. retention of all CPSA compliance-related records for at least
five (5) years and making such records available to CPSC staff upon
request.
31. TJX shall submit a report, sworn to under penalty of perjury:
(i) describing in detail its compliance program and internal
controls and the actions the firm has taken to comply with each
subparagraph of paragraph 30,
(ii) affirming the firm has reviewed its compliance program and
internal controls, including actions undertaken to review the
effectiveness of the program and controls, and that it is in compliance
with each subparagraph of paragraph 30 or describing in detail any non-
compliance with any such subparagraph, and
(iii) identifying any changes or modification made to the firm's
compliance program or internal controls to address any non-compliance
with any subparagraph of paragraph 30.
32. Such reports shall be submitted annually to the Director,
Office of Compliance, Division of Enforcement and Litigation, for a
period of 5 years beginning 12 months after the Commission's Final
Order of Acceptance of the Agreement.
33. Notwithstanding and in addition to the above, upon request of
staff, TJX shall promptly provide written documentation of any material
changes or modifications to its CPSA compliance program and related
internal controls and procedures, including, but not limited to, the
effective dates of the changes and modifications thereto. TJX shall
cooperate fully and truthfully with staff and shall make available all
non-privileged information and materials, and personnel deemed
necessary by staff, to evaluate TJX's compliance with the terms of the
Agreement.
34. The parties acknowledge and agree that the Commission may
publicize the terms of the Agreement and the Order.
35. TJX represents that the Agreement: (i) is entered into freely
and voluntarily, without any degree of duress or compulsion whatsoever;
(ii) has been duly authorized; and (iii) constitutes the valid and
binding obligation of TJX, successors, transferees, and assigns,
enforceable against TJX in accordance with its terms. The individuals
signing the Agreement on behalf of TJX represent and warrant that they
are duly authorized by TJX to execute the Agreement.
36. The signatories represent that they are authorized to execute
this Agreement.
37. The Agreement is governed by the laws of the United States.
38. The Agreement and the Order shall apply to, and be binding
upon, TJX and each of its successors, transferees, and assigns; and a
violation of the Agreement or Order may subject TJX, and each of its
successors, transferees, and assigns, to appropriate legal action.
39. The Agreement and the Order constitute the complete agreement
between the parties on the subject matter contained therein.
40. The Agreement may be used in interpreting the Order.
Understandings, agreements, representations, or interpretations apart
from those contained in the Agreement and the Order may not be used to
vary or contradict their terms. For purposes of construction, the
Agreement shall be deemed to have been drafted by both of the parties
and shall not, therefore, be construed against any party, for that
reason, in any subsequent dispute.
41. The Agreement may not be waived, amended, modified, or
otherwise altered, except as in accordance with the provisions of 16
CFR 1118.20(h). The Agreement may be executed in counterparts.
42. If any provision of the Agreement or the Order is held to be
illegal, invalid, or unenforceable under present or future laws
effective during the terms of the Agreement and the Order, such
provision shall be fully severable. The balance of the Agreement and
the Order shall remain in full force and effect, unless the Commission
and TJX agree in writing that severing the provision materially affects
the purpose of the Agreement and the Order.
The TJX Companies, Inc.
Dated: 6/15/2022
By: /s/----------------------------------------------------------------
Paul Kangas,
The TJX Companies, Inc., Senior Vice President, Chief Risk and
Compliance Officer.
Dated: 6/15/2022
By: /s/----------------------------------------------------------------
Michelle F. Gillice,
Arnold & Porter Kaye Scholer LLP, Counsel for The TJX Companies,
Inc.
U.S. Consumer Product Safety Commission.
Dated: 6/16/2022
By: /s/----------------------------------------------------------------
Rosalee B. Thomas,
Trial Attorney.
Mary B. Murphy,
Director, Division of Enforcement and Litigation, U.S. Consumer
Product Safety Commission, 4330 East West Highway, Bethesda, MD
20814.
United States of America Consumer Product Safety Commission
In the Matter of: The TJX Companies, Inc., CPSC Docket No.: 22-C0003
Order
Upon consideration of the Settlement Agreement entered into between
The TJX Companies, Inc. (``TJX''), and the U.S. Consumer Product Safety
Commission (``Commission''), and the Commission having jurisdiction
over the subject matter and over TJX, and it appearing that the
Settlement Agreement and the Order are in the public interest, it is:
Ordered that the Settlement Agreement be, and is, hereby, accepted;
and it is
Further Ordered that TJX shall comply with all terms of the
Settlement Agreement, including payment of a civil penalty in the
amount of thirteen million dollars ($13,000,000), within thirty (30)
days after service of the Commission's final Order accepting the
Settlement Agreement. The payment shall be made by electronic wire
transfer to the Commission via: <a href="https://www.pay.gov">https://www.pay.gov</a>. Upon the failure
of TJX to make the foregoing payment when due, interest on the unpaid
amount shall accrue and be paid by TJX at the federal legal rate of
interest set forth at 28 U.S.C. 1961(a) and (b). If TJX fails to make
such payment or to comply in full with any other provision of the
Settlement Agreement, such conduct will be considered a violation of
the Settlement Agreement and Order.
Provisionally accepted and provisional Order issued on the 29th
day of July, 2022.
By Order of the Commission:
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Alberta Mills, Secretary, U.S. Consumer Product Safety Commission.
Finally accepted and final Order issued on the __ day of __,
2022.
By Order of the Commission:
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Alberta Mills,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2022-16816 Filed 8-4-22; 8:45 am]
BILLING CODE 6355-01-P
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