Here’s a brief review of key developments concerning the U.S. Consumer Product Safety Commission (“CPSC”) from last month. We look forward to seeing many friends at the Annual Meeting and Training Symposium of ICPHSO in two weeks. For those who are unable to make the conference, our team plans to share daily insights so stay tuned for more important product safety updates!

Decisional Meeting on Clothing Storage Units Addresses “Tip-Over” Issue. On January 19, the CPSC adopted, by a 4-0 vote, staff’s recommendation to issue a Notice of Proposed Rulemaking for Clothing Storage Units (CSUs) to address the “tip-over” issue. Notably, the Commission adopted two amendments to the proposed rule, both offered by Commissioner Richard Trumka Jr.

The first amendment pertained to the rule’s stockpiling provision. The rule presented by staff “prohibited manufacturers and importers of CSUs from manufacturing or importing CSUs that do not comply with the requirements of the proposed rule in any 12-month period between the date a rule is promulgated and the effective date of the rule at a rate that is greater than 120 percent of the rate at which they manufactured or imported CSUs during the base period for the manufacturer.” Trumka’s amendment defines the “base period” as one month out of the last 13 months with the median import or manufacture volume, and changes the percentage increase that is allowed under that base period from 120% to 105% in each month between the final rule and the effective date. It is intended to reduce the risk of stockpiling products. The Commission adopted the amendment by a vote of 4-0.

The second amendment offered by Trumka makes the effective date of the rule 30 days after promulgation rather than 180 days, as set forth in staff’s draft proposed rule. The Commission adopted the amendment by a vote of 3-1 (Commissioner Peter Feldman voted against, though he repeatedly stated that he would keep an open mind on this issue based on comments received). Practically speaking, the rule would only apply to CSUs manufactured and imported on or after the final rule’s effective date. However, by that date, we anticipate that consumers will expect rule-compliant product on store shelves.

The staff’s Notice of Proposed Rulemaking package was published in the Federal Register for review and comment on February 3.

CPSC Approves New Federal Safety Standard for Crib Mattresses. On January 26, the CPSC voted 4-0 to approve a federal safety standard that will require, by Fall 2022, improved marking, labeling, and instructions for infant mattresses to address suffocation, entrapment, and laceration hazards. The standard applies to crib mattresses that fall within the scope of ASTM F2933-21, including full-size crib mattresses, non-full-size crib mattresses, and aftermarket mattresses for play yards and non-full-size cribs. In adopting the final rule, the CPSC cited 139 fatalities related to crib mattresses between January 2010 and April 2021. This is the most recent infant sleep-related safety standard; the agency approved a standard for infant sleep products in June that has been challenged in the D.C. Circuit.

Hill Democrats Call on CPSC to do More on Space Heaters. In the wake of the tragic fire that killed 17 people in the Bronx, U.S. Senators Maria Cantwell (D-WA) and Richard Blumenthal (D-CT) have sent a letter to the CPSC asking the agency to do more to address the safety of space heaters. Specifically, the Senators have asked the agency to take the following five actions:

  • review the voluntary safety standard relating to space heaters, ANSI/UL 1278, to ensure that the standard reflects consumer usage of the product;
  • share with the public any information that the CPSC has on the safety of space heaters currently on the market;
  • provide the public with readily accessible information on the number of injuries and deaths from portable heaters by geographic location and demographic attributes, as well as any relevant contributory factors;
  • review safety disclosures and usage instructions on packaging, retailer websites, and online platforms to ensure such disclosures are prominent and clear; and
  • consider promulgating a mandatory safety standard for electronic space heaters if data indicates continued non-compliance in the market and failure of the current voluntary standard to safeguard consumers.

According to the Washington Post, the CPSC is looking into the potential role of a defective product in the fire and offering assistance to New York investigators. This fire also reminds us of important and timely remarks that then-Chairman Robert Adler made at last year’s annual ICPHSO conference on the importance of approaching product safety from a variety of diverse viewpoints. Adler asked the conference “how might certain hazards exist for some vulnerable populations more than others? How might real-life barriers, like socio-economic status, affect our safety messages and peoples’ ability to respond to them? What methods can we use to reach marginalized and underserved communities? These are important questions worthy of the agency’s consideration.”

Important Reminder! Fast-Track Recall Reports Now Accepted via Portal Only. As of this week, the CPSC requires companies wishing to participate in the Fast Track recall program to submit their Section 15(b) reports through the agency’s portal. Importantly, Section 15(b) reports requesting participation in a Fast Track recall program that are submitted to the agency via email, fax, or otherwise, will now be rejected. The online portal can be found here.

The CPSC in Transition.

  • Mary Boyle. 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”). Notably, a vote on Ms. Boyle’s nomination had been placed on the Committee’s February 2 agenda. However, the nomination was subsequently pulled from consideration due to the absence of Committee member Senator Ben Ray Lujan (D-NM) who suffered a recent stroke. Because the vote on Ms. Boyle is expected to fall on party lines, any absence of a Democratic member of the Committee would ostensibly jeopardize Ms. Boyle being reported favorably out of committee. As a result, we do not expect Ms. Boyle’s nomination to be considered until Senator Lujan returns to work, which is anticipated to be in another four to six weeks. The Commission will remain evenly divided between two Democrats (Hoehn-Saric and Trumka) and two Republicans (Baiocco and Feldman).
  • Jason Levine. Levine is the new Acting Director of the CPSC’s Office of Communications (OCM). Although Mr. Levine comes to the agency from the Center for Auto Safety, where he served as Executive Director, he is no stranger to the consumer product safety world and the agency. From 2009 through 2015, Mr. Levine served in various senior roles at the Commission, including as Chief Counsel and Chief of Staff to then-Commissioner Robert Adler.