Can the government recall a book?

Can the government recall a book?

Can the government recall a book?

How to protect your pockets.
Oct. 7 2010 5:54 PM

Regulatory Lit Crit

Can the government recall a book?

Southern Living Kitchens Planning & Remodeling.

Can the government recall a book? I've plowed through my share of books that, though heavily touted, were clearly defective. (David Guterson's 1995 novel Snow Falling On Cedars comes most readily to mind.) Friends and family will attest that I've prepared inedible dinners from too many cookbooks to count. It never occurred to me such mishaps warranted government action. I was wrong.

On Oct. 1, the Consumer Product Safety Commission announced that Oxmoor House, a division of Time Warner, was recalling 16 home-repair guides, all of them out of print since at least 2005 and some of them published as far back as the 1950s and 1960s. This was 10 months after the CPSC announced that Oxmoor House was recalling nine home-repair guides of more recent vintage (meaning some were published in the aughts, some in the 1990s, one in 1985, and one in 1975). The problem with all of these was that they contained "errors in the technical diagrams and wiring instructions that could lead consumers to incorrectly install or repair electrical wiring, posing an electrical shock or fire hazard to consumers."

Book recalls aren't all that unusual for the CPSC. Click "Books & Accessories" on a CPSC search page and you'll find 33 recalls going back to 1984. But most of these concerned the physical properties of books for infants and toddlers likely to put them into their mouths. The foam in this paperboard book's binding posed a choking hazard. A red plastic dot sewn into this cloth book contained high levels of lead. The triangular-shaped rattle tucked into the spine of this book contained plastic pellets that could come loose, be inhaled, and damage a small child's lungs. In none of these recalls could you accuse the federal government of elevating literary criticism to regulatory policy. Parents remained free to lay waste their children's developing brains by reading to them about the Berenstain Bears.

Apart from the Oxmoor House recalls, CPSC spokeswoman Patty Davis could identify only two previous instances in which books were recalled based on faulty content. One was a 2008 recall by Taunton Press of yet another guide to wiring your own house that contained "several errors in the technical diagrams" that posed the danger of electrical shock (though not, apparently, of fire in this instance). The other was a 2003 recall for the book Candle and Soap-Making for Dummies that contained faulty instructions for making lye that could cause burns (as lye itself is known to do, making this that rare volume in the series whose title can be taken literally).

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These few content-based recalls haven't been terribly effective. "It is illegal to resell or attempt to resell a recalled consumer product," the recall notices all warn sternly, but somebody forgot to tell Amazon.com, which as I write still offersCandle and Soap-Making for Dummies via various used booksellers. The recall's main effect was to drive this how-to volume's price above $82. (Amazon will also sell you, directly, the post-recall Making Candles and Soaps for Dummies, with corrected lye-making instructions, for a more reasonable $13.59). All of the books listed in the Oct. 1 Oxmoor House recall remain available on Amazon as I write six days later, nearly all at low prices, most through used booksellers but some from Amazon's own inventory. Most books listed in Oxmoor House's January recall remain, as I write, available on Amazon, too. I emphasize as I write because these specific titles may disappear after this column is posted. The point is that if the CPSC doesn't check Amazon, which is the first place anyone would look, then clearly it doesn't (or perhaps by law can't) do much to enforce its book recalls.

Is the government really allowed, under the First Amendment, to force the recall of a book based on its content? In all the examples I've cited, the recall was voluntary, as nearly all CPSC recalls are. (Last year, every CPSC recall was voluntary.) In Oxmoor House's case, a Time Inc. spokesperson informed me, "a consumer brought it to our attention and as soon as we became aware of it we took immediate action, contacted the CPSC, and began the voluntary recall." The follow-up recall was the result of Oxmoor House's in-house investigation prompted by the first recall. (According to both the CPSC and Time Inc., there is no known instance of anybody being physically harmed as a result of following the bad wiring advice proffered in the recalled books.)

But one reason most companies that deal with the CPSC tend to agree to voluntary recalls is that the CPSC has the power to force mandatory recalls. Does the CPSC have the power to force a publisher to take a book off the market? "Technical diagrams and wiring instructions that have errors are a product hazard," CPSC spokesperson Patty Davis told me, and product hazards are subject to mandatory recall under the Consumer Product Safety Act first enacted in 1972. But Eugene Volokh, a First Amendment expert who teaches law at the University of California Los Angeles, wrote me by e-mail that

The First Amendment bars government agencies from simply ordering books withdrawn based on their contents, even if the contents are constitutionally unprotected—obscene, libelous, or the like. It's possible that the government might be able to go to court to get an injunction ordering such withdrawal, and maybe such an injunction could be issued, following a full hearing on the merits. But without such a court order, entered following an adjudication that the book is actually unprotected, an agency would have no power to impose a mandatory recall order. Such an agency order would be a classic unconstitutional "prior restraint."

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A murkier question, Volokh conceded, is whether a court may impose criminal or civil liability when a publisher knowingly sells a book falsely claiming that a particular activity is safe when, in fact, it's dangerous. "Maybe once the publisher is on notice about the error, it might have to stop selling the book, and might have to call it back from its business partners who are selling it, or else face civil liability," he wrote. The court might even have the power to enjoin on its own further distribution of the book. "But even if all that's so," he continued, "the CPSC could not mandate such a recall on its own."

My (somewhat simpler) approach to this constitutional question is to ask: What kind of idiot uses a book published 20 to 50 years ago to figure out how to rewire his house? I'll go further: What kind of idiot fiddles with the wiring in his house at all, assuming he's an amateur? (Which by definition he is if he has to consult a how-to book. Which leads us to another riddle first identified by Dwight Macdonald in his classic 1954 New Yorker essay "Howtoism": "Whereas the howto is, by definition, addressed to a lay audience, it currently takes an expert on howtos to know which title in the tangled mass will deliver the goods.")

The only home-repair manual I have ever managed to get through was David Owen's The Walls Around Us, published in 1991, the year I bought my first house. The book's twin strengths are that it is very funny and very short on practical advice. I remember taking away from it two truisms unlikely to get me into much trouble. The first is that no matter what they look like on the outside, virtually all houses are built out of wood. The second is that (in large part because they're built out of wood) you must act quickly at the first sign that water is seeping anywhere into your house. Which in my case means calling a guy to fix it.

I phoned Owen to ask what he thought of the CPSC's Oxmoor House recalls. "They all should probably be recalled," he confided, "including mine. Even if you're following the directions you're probably going to end up with a mess." One study put the injury rate involving woodworking, home repair, and wood-related construction at 3.3 per thousand residents—and most of these involve professionals who actually know what they're doing. "Probably everyone would be better off if they didn't try to do anything by themselves," Owen told me. But he isn't too worried about legal trouble. "Since men famously don't read the instructions before doing anything," he said, "a publisher could probably use that as a defense."

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