Here’s a brief review of three key developments concerning the U.S. Consumer Product Safety Commission (“CPSC”) from the past month or so to help you stay aware of important product safety legislative and regulatory happenings.
The CPSC Has a New Commissioner. On November 16, the United States Senate confirmed Richard Trumka Jr. to a seven-year term on the Commission by voice vote. Mr. Trumka Jr. will replace long-time Commissioner Robert Adler whose term expired last month. Importantly, with Mr. Trumka Jr.’s confirmation, the Commission will remain comprised of two Democratic (Hoehn-Saric and Trumka Jr.) and two Republican (Baiocco and Feldman) Commissioners. The Democrats will not have a majority on the Commission until current Biden nominee (and CPSC Executive Director) Mary Boyle is confirmed by the Senate—and the status of that nomination remains unclear. Ms. Boyle’s nomination is not on the Senate Commerce Committee’s “Nominations Hearing” agenda for December 1. You can read more about Mr. Trumka Jr.’s confirmation in our prior post about his confirmation.
Finnbinn Challenges CPSC Infant Sleeper Rule. On November 8, Finnbinn, LLC, a manufacturer of infant sleep products, including baby boxes, filed an opening brief in the D.C. Circuit challenging the CPSC’s final rule regulating infant sleep products. The rule, adopted by the Commission this past June, establishes a category of products called “infant sleep products,” which are “all products marketed or intended to provide a sleeping accommodation for an infant up to 5 months of age, and that are not already subject to a mandatory CPSC sleep standard.” In its statement announcing approval of the rule, the CPSC cited 254 incidents, including 21 fatalities, attributed to flat and inclined sleep products in 2019-2020. However, in its challenge to the rule, Finnbinn alleges that the Commission exceeded its authority under Section 104 of the Consumer Product Safety Improvement Act by adopting and expanding the voluntary safety standard for inclined infant sleep products (ASTM F3118-17a) to cover all flat infant sleep products, such as baby boxes and in-bed sleepers, as well. Finnbinn argues that the rule “effectively banned dozens of previously unregulated flat sleep products,” including certain of its products. We will continue to follow and report on this litigation.
Commissioner Feldman Issues Statement on New Civil Penalty Amounts. Last week, the Commission apparently voted to increase the maximum civil penalty amounts to $120,000 for each violation, and $17,150,000 for any related series of violations. The Commission is required to publish a schedule of maximum civil penalty amounts every five years that considers the Consumer Price Index as published by the U.S. Department of Labor—in other words, the amounts are adjusted for inflation and increases in cost-of-living. These new amounts apply to violations that occur after January 1, 2022. Notably, Commissioner Peter Feldman issued a public statement on November 23 that questioned whether the current civil penalty maximums “may leave CPSC with insufficient tools to enforce against large ecommerce platforms, some of which measure their annual revenue in the hundreds of billions of dollars.” In other words, Mr. Feldman seems to be questioning whether the current civil penalty amounts may be viewed by some firms as the cost of doing business rather than as a strong deterrent. It will be interesting to watch whether Commissioner Feldman tries to work with Congress to reimagine CPSC civil penalties, and make them more akin to amounts available to, for example, sister safety agency NHTSA (the maximum amount for a series of certain violations of the Vehicle Safety Act approaches $114 million).