- Is an escalator in a shopping mall a consumer product? The Consumer Product Safety Commission thinks so; here’s their recommendation on escalator safety and the use of soft soled shoes.
- Does the CPSC regulate the Internet of Things? To the extent networked products present safety risks, you bet they do. CPSC Commissioner Kaye has issued his own paper outlining a framework for the safety of IoT products.
- What about an industrial use product now widely available for sale to consumers in home improvement stores and on the internet? Probably; read on to learn more!
It can often be difficult for companies to determine whether a product is a “consumer product” for regulatory purposes. Determining whether a product is a consumer product is an important first step in understanding the potential applicability of federal and state product safety rules and regulations to your product. Whether you are a manufacturer, importer, distributor, or retailer, this post is intended to provide a brief overview of the basic jurisdictional considerations for companies in the consumer products space–particularly those companies who also distribute industrial-use products.
What is a consumer product?
The Consumer Product Safety Act (“CPSA)” defines “consumer product” as “any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise…” Although the statute does not provide specific examples of “consumer products,” it does set forth particular categories of products which are not included the definition. This list includes the following types of products which are regulated by other federal agencies:
- Any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer
- Tobacco and tobacco products (Food and Drug Administration)
- Motor vehicles or motor vehicle equipment (National Highway Traffic Safety Administration)
- Pesticides (Environmental Protection Agency)
- Firearms and ammunition (Bureau of Alcohol, Tobacco, Firearms, and Explosives)
- Aircraft, aircraft engines, propellers, or appliances (Federal Aviation Administration)
- Boats (U.S. Coast Guard)
- Drugs, devices, or cosmetics (Food and Drug Administration)
- Food (Food and Drug Administration)
The U.S. Consumer Product Safety Commission (“CPSC”) publishes a list of regulations, mandatory standards, and bans to assist industry and consumers with navigating which rules apply to specific consumer products. However, even if there is not a specific mandatory regulation in place for a product, the CPSC may still have jurisdiction over that product.
Are all hardware and home improvement items covered by the CPSC?
As a rule of thumb, if you can buy it at the hardware store or on an online retail site, a DIY home improvement product would be covered as a consumer product. But the analysis is somewhat more nuanced in determining the CPSC’s jurisdictional reach when products become part of customized systems that operate together in the home environment, such as electrical wiring, solar installations and security systems. A defect may not exist in those products as sold, but instead arise because of the way they are installed or otherwise incorporated into the home. Home systems, as opposed to distinct articles in a home, are traditionally regulated by building codes that can take into account important local considerations such as temperature, humidity and even geographic fault lines.
The CPSC has jurisdiction over products that are distinct articles in commerce enjoyed by consumers in and around the home. 15 U.S.C. § 2052(a)(1); see Consumer Product Safety Commission v. Anaconda Co., 593 F.2d 1314, 1320 (D.C. Cir. 1979) (holding that CPSC assertion of jurisdiction over wiring or plumbing systems “would seem to ignore a contrary congressional intention and potentially raises significant problems of federalism in areas of building construction currently regulated extensively by local jurisdiction”). But when the performance of an article in commerce necessarily depends on the design, installation and operation of that product in an integrated system, the jurisdictional analysis can change and an argument can be made that these systems are not consumer products. Id. Electrical wiring or plumbing systems discussed in Anaconda are classified there as involving “housing,” and not regulated as a consumer product. Id. at 1320 but see Kaiser v. Consumer Product Safety Commission, 574 F.2d 178 (3d Cir. 1978) (distinguished by Anaconda in holding that jurisdiction depends on CPSC findings on jurisdictional fact as to whether a component part of system is distributed to consumers as a distinct article in commerce).
What is an industrial or institutional product as opposed to a consumer product?
While most of the “non-consumer products” fall into one the categories listed above and are easily recognizable, one less-obvious exclusion is a product “which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer.” The CPSA’s legislative history, general counsel opinions, and subsequent cases address and consider this provision in terms of whether the product is produced or distributed primarily for industrial or institutional, as opposed to consumer, use. In general, even if a product is sold primarily to industrial or institutional buyers, it is nevertheless a consumer product within the CPSC’s jurisdiction so long as it is produced and distributed for ultimate consumer use, or otherwise advertised and marketed for consumer use.
On the other hand, a product is likely to be considered an “industrial or institutional product,” if it is not only not customarily sold to or bought separately by consumers, but also is not produced for the purpose of their use and/or enjoyment, General Counsel Opinion 55 (1973); Hughes v. Segal Enterprises, Inc., 627 F. Supp. 1231, 1240 (W.D. Ark. 1986); Consumer Prod. Safety Comm’n v. Chance Mfg. Co., 441 F. Supp. 228, 232-233 (D.D.C. 1978) (finding an amusement park ride was a consumer product because, while not distributed directly to consumers, it was produced to be used for recreational purposes by consumers). How the product is advertised is also important. For example, the D.C. Circuit has held that to be a consumer product, “sales or distributions [to consumers] must be more than ‘occasional’ and there must be ‘significant marketing of the product as a distinct article of commerce for sale to consumers or for the use of consumers.” Anaconda, 593 F.2d at1319-22. A product may be considered an “industrial or institutional product” if one or more of the following factors apply: (a) the weight and cost of the product exceed those of usual consumer products of the same type; (b) the manufacturer did not sell directly to retailer dealers; (c) distributors and dealers did not advertise the product in consumer publications; (d) advertising for the product was only placed in special interest publications for commercial or industrial users; or (e) distributors believe that the product is being sold commercially, not to consumers. General Counsel Opinion 297 (1982)
It is also important to keep in mind that any doubts will be resolved in favor of finding jurisdiction of the CPSC, General Counsel Opinion 134 (1974), and the onus is on the manufacturer “to determine the distribution and use patterns of its products and to act accordingly.” General Counsel Opinion 107 (1974). Moreover, even if a product is originally produced or distributed for industrial or institutional use, if the product becomes “broadly used by consumers” or the distributor “facilitates its sale to or use by consumers, the product may lose its claim for exclusion if a significant number of consumers are thereby exposed to hazards associated with the product.” General Counsel Advisory Opinion 134 (1974); House Report No. 92-1153, 92d Cong., 2d Sess. (1972).
Looking for more information? In addition to relying on the laws described above, the CPSC list of regulated products and advisory opinions, the CPSC has a “Regulatory Robot” to help small businesses determine what safety rules apply to their product.