The TJX Companies, Inc., 48004-48007 [2022-16816]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 87, Number 150 (Friday, August 5, 2022)]
[Notices]
[Pages 48004-48007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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: [email protected].

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; [email protected] 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:

     StyleCraft Upholstered Benches
     Bollinger Fitness Resistance Bands
     Linon Home Foldable Wood Patio Chairs
     MZ Berger Children's Light-Up Watches
     Calphalon Pizza Wheels
     Ivanka Trump Scarves
     HVTM Foldable Lounge Chairs
     Swagway Hoverboards
     Calphalon Cutlery Knives
     Kids II Oball Rattles
     Bradshaw Int'l Coffee Presses
     Glass Beer Mugs
     Sharper Image/Frigidaire Mandoline Slicers
     Carter's Children Cardigan Sets
     Swivel Barstools
     Jimco Bistro Chair
     Glass & Ceramic Drawer Knobs
     Fisher-Price Rock `n Play Sleepers
     Kids II Rocking Sleepers
     Ion Audio Portable Speakers
     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 https://www.pay.gov, 
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: https://www.pay.gov. 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