On 5 May 2021, Peloton recalled its ‘Tread+’ treadmills, following a tragic accident where a six-year-old died after being pulled underneath the rear of one machine. It is important to note that the Tread+ was only sold in the United States and the recall of the ‘Tread’ in the UK is for different safety reasons.
The US recall of the Tread+ followed 72 reports of adults, children and pets being pulled under the rear of the machines, including an incident reported on 13 February 2021 by the US Consumer Product Safety Commission (CPSC). A three-year-old was found trapped under a Peloton treadmill, pulseless and in need of resuscitation, and now suffers from a significant brain injury as a result of the accident. The report published a reply from Peloton which included the company’s reminder that ‘the Peloton Tread+ is designed for use by people over the age of 16, weighing over 105 lbs.’
The main risks of injury appear twofold: (i) the potential to become trapped underneath the treadmill; and (ii) the possibility that the large touch screens will detach and fall. The Office for Product Safety and Standards (OPSS), established in the UK in 2018 to manage large scale recalls and to alert consumers of product risks, is aware of the recall of the Tread. However, the OPSS has so far only published an unsafe product report for the Tread and its unstable touch screen, in which it has requested all consumers to cease use of the machines and directed them to Peloton’s UK recall notice.
Following the death in March this year, Peloton’s CEO John Foley released a safety note on the Peloton website, urging consumers to adhere to the product’s warnings and instructions and emphasising that children and pets should be kept away from the equipment at all times. The company did not recall the machines at that stage, presumably prompting the CPSC to issue a warning on 17 April 2021 cautioning all consumers with children or pets to stop using their treadmill immediately and, if that were not possible, to use the machine in a locked room to prevent child access. It was not until 5 May 2021 that Peloton released a statement confirming the recall of its treadmills. The recall was accompanied by an apology that stated the business had ‘made a mistake’ in its initial response to the CPSC’s request for a recall and acknowledged that it ‘should have engaged more productively with [the CPSC]… from the outset’. Peloton is now offering a full refund or free repair for all Tread+ consumers.
The applicable regime for assessing the appropriate level of risk to consumers in the UK from the continued use of defective/unsafe products, in order to determine appropriate ‘corrective action’, is found in the European Commission’s guide titled: ‘EU general risk assessment methodology (Action 5 of Multi-Annual Action Plan for the surveillance of products in the EU (COM(2013)76)’ (referred to in this article as the ‘methodology’).
The methodology includes examples of injuries and a corresponding escalating scale of ‘severity’ of harm. The ‘serious’ category includes: death; serious injury to internal organs; loss of limbs; loss of sight; loss of hearing; serious burns (more than 25%); severe permanent disability; and serious mental disorder or prolonged coma. The probability of injury is then calculated by assessing the likelihood that use of the defective product will result in those particular types of injury.
The Commission Implementing Decision (EU) 2019/417 of 8 November 2018 includes an annex that lays down guidelines (referred to throughout this article as the ‘RAPEX guidelines’) on general product safety and its notification system for the management of the European Union Rapid Information System ‘RAPEX’ (established under Article 12 of Directive 2001/95/EC, notified under document C(2018) 7334). This provides details of the implementation of the RAPEX system and reporting responsibilities placed upon member states within the European Union. Similar to the methodology referred to above, the system includes an escalating scale of injury, with the most severe level (level four) listing fatal consequences, brain death, loss of limbs or a lasting disability as appropriate injuries for the category.
The tables below are both taken from the RAPEX guidelines. The first table defines the consumers who would be classed as ‘very vulnerable’, ‘vulnerable’ and ‘other’ consumers and the second table defines how the risk level is calculated.
|Very vulnerable consumers
Very young children: 0 to 36 months.
Young children: children older than 36 months and younger than 8 years.
|Consumers other than very vulnerable or vulnerable consumers.
In Peloton’s case, the Tread+ and Tread were not designed for use by children. Peloton’s website confirms that the Peloton Tread is intended only for people over the age of 16. Despite this, children under 36 months old (who fall into the ‘very vulnerable’ category within the RAPEX guidelines) or children older than 36 months and younger than 14 years old (who fall into the ‘vulnerable’ category within the guidelines) have, as has been tragically demonstrated, been injured or killed by the Tread+ in the US.
The Tread+ would therefore present a difficult analysis if sold in Europe because, as is stated above, the products are not designed for use by young children. This being said, a product which poses a low level of risk to an adult who is the intended user might pose a serious risk to a vulnerable consumer interacting with that object, who may not be able to read warning labels or may be able to interact differently with the product. For example, a lawnmower could be very dangerous in the hands of a young child but is explicitly labelled to indicate it should be kept in a place which is not accessible to young children and should only be operated by an adult.
The most important task for any business is to have conducted and documented a thorough analysis of both the intended users and those who are very likely to encounter the product. The question in the Peloton case, as to whether the Peloton Tread+ would have been categorised as a ‘high risk’ under the RAPEX guidelines were it sold in the UK or an EU member state, would depend upon whether the probability of death or serious injury is greater than one in 100,000 over the foreseeable lifetime of the product (see the second table above). The CPSC website records the amount of Tread+ models sold to be in the region of 125,0000, and so if the death and the 72 reports of varying levels of injury (where at least one lead to a lasting disability) are considered, the machines can hypothetically be categorised as ‘high risk’. On balance, therefore, there appears to have been sufficient risk arising from use of the products to justify recalling them sooner.
Any delay in acting in circumstances where a product poses a ‘high risk’ may leave a business facing criticism, reputational damage and potential litigation risk, should further users be harmed by the product. The recall of the Tread+ that Peloton has commenced is a positive corrective action but could potentially be viewed as being too little too late.
A US firm called Schall Law Firm is inviting contact from any shareholders of Peloton Interactive, Inc who purchased shares between 11 September 2020 and 16 April 2021 with losses in excess of $100,000 which have arisen as a result of: the allegedly misleading statements made to the market; Peloton’s failure to prioritise safety; and its delayed recall of the products. It appears quite likely, therefore, that Peloton may be held to account in a class action lawsuit later this year. Due to the nature of the US legal system, a class action such as the one proposed is likely to take significant time to reach a conclusion if pursued to trial.
The tragic loss of life arising from the use of Peloton’s Tread+ exemplifies the severity of the potential consequences for individuals and businesses when safety precautions are not afforded sufficient priority. Any equipment capable of causing the death of a child, especially in the violent manner experienced here and where the product is enticing to them, should bear multiple safety warnings, which are sufficiently prominent and clear. Such warnings are all the more essential from a safety perspective where it is not possible to adequately address all the foreseeable risks through preventative safety systems in the product’s design.
The main lesson here for all product manufacturers and others bearing primary responsibility for essential safety requirements of products (for example, importers where the manufacturer is not based in the relevant market) is that where products are likely to be used by or around children, every effort should be made to construct such products with their safety in mind, even where the product is neither designed nor intended for their use. The considerable social, reputational and financial ramifications of Peloton’s treadmills will inevitably haunt the organisation for some time to come, bringing into question how, based on the current design, they were deemed ‘safe’ for marketing and sale to the public in the first place.
This article has been co-written with Lara Wylder, a trainee solicitor in the commercial dispute resolution team.