Happy New Year! We hope that our readers had a very enjoyable and safe holiday season. Here’s a brief review of key developments concerning the U.S. Consumer Product Safety Commission (“CPSC”) from last month to help you stay aware of important product safety legislative and regulatory happenings.

CPSC Responds to Finnbinn’s Challenge on Infant Sleeper Rule. On December 17, the CPSC responded to Finnbinn’s challenge of its final rule applying the voluntary safety standard for inclined infant sleep products (ASTM F3118-17a) to all infant sleep products, including those that are “flat,” such as baby boxes and in-bed sleepers. In its responding brief, the CPSC asserts that Section 104 of the Consumer Product Safety Improvement Act, which requires the agency to study and develop safety standards for infant and toddler products, gives CPSC the authority to set such a standard, even where no existing voluntary safety standard exists. According to the CPSC, to decide otherwise would “allow inaction by a voluntary standard-setting organization to preclude action by the Commission.” The agency further argued that its rule was supported by sufficient evidence, citing 11 deaths and 16 injuries associated with flat sleep products over a two-year span, which it maintained was an undercount. The primary dangers of these products, according to the agency, are that they can fall when placed on other pieces of furniture, and that products without strength and stability requirements can lead to babies falling out of the sleepers. Of note, a trio of consumer advocacy groups filed an amicus brief urging the court to uphold the safety standard’s application to flat sleep products. We will continue to follow and report on this litigation.

Decision Meeting on Magnets and Window Coverings. On December 14, the CPSC held its last open meeting of 2021 in which it considered two briefing packages from staff: one on a draft safety standard for magnets and the other on notices of proposed rulemaking that would add window covering cords to the substantial product hazard list and establish a safety standard for operating cords on custom window coverings. After considering and voting in favor of amendments from Commissioner Trumka that changed the effective dates for compliance with the magnet and custom window covering rules, the Commission voted 4-0 in favor of both briefing packages and to move forward with publication in the Federal Register.

Fast Track Recall Reports Accepted via Portal Only. For some time, the CPSC has encouraged, but not required, companies to file Section 15(b) reports through the agency’s saferproducts.gov portal. That is about to change, at least for companies seeking to participate in the agency’s “Fast Track Recall” program. On December 21, 2021, the CPSC announced that “effective January 31, 2022, businesses that want to participate in the Fast Track program will be required to submit their Section 15(b) reports exclusively online through the portal. Reports received via email, fax, or mail for participation in a Fast Track recall will be rejected after this date, and the firms will be directed to resubmit their reports via the online system.”

The CPSC in Transition.

  • Mary Boyle. Before the holiday, the Senate confirmed two new Democratic commissioners—Alexander Hoehn-Saric and Richard Trumka Jr.—to serve alongside current Republican commissioners Dana Baiocco and Peter Feldman. The nomination of Mary Boyle (the CPSC’s current Executive Director) to serve as the third Democratic commissioner remains pending before the Senate Committee on Commerce, Science, and Transportation (the “Committee”). A vote had been scheduled by the Committee on December 15. However, due to poor attendance at the hearing by Democratic members, the Chairman postponed consideration to an unspecified future date. In the interim, although Ms. Boyle’s nomination will be returned to the White House pursuant to a technicality under the Senate’s rules, we expect Ms. Boyle to be re-nominated and her nomination to move forward on a party-line vote (or close to it) when the Committee reconvenes in the new year thus giving the Democrats a 3-2 majority on the Commission.
  • Austin Schlick. The Commission also has a new General Counsel. Austin Schlick recently replaced Acting General Counsel Jennifer Sultan in the agency’s Office of General Counsel (Ms. Sultan remains Deputy Director of Compliance and Field Operations). Mr. Schlick comes to the agency with a vast array of public and private sector experience. Most recently, Mr. Schlick served as the Director of Communications Law for Google from 2012 to 2021. Prior to that job, he served as the General Counsel of the Federal Communications Commission (2009 – 2012) and Chief of Litigation of the Maryland Office of the Attorney General (2007 – 2009).