@CPSC.gov

Some CPSC breaking news unrelated to the shutdown! Last Wednesday, President Trump renominated Ann Marie Buerkle, who has served as Acting Chair of the U.S. Consumer Product Safety Commission since February 9, 2017, to serve as permanent Chairman of the Commission.  The appointment is for a seven-year term beginning on October 27, 2018 when her current term expired. Acting Chairman Buerkle has continued to serve under the agency’s enabling statute and rules that permit a commissioner to “hold over” for an additional year pending confirmation of a new term or commissioner.

Notably, this is the third time that President Trump has nominated Acting Chairman Buerkle to be permanent Chairman of the CPSC. In 2017 and 2018, Senate leadership did not bring Buerkle’s nomination to the Senate floor for a vote leading to a process whereby the White House had to send the nomination back to the Senate for further consideration.

So what does this renomination mean for Buerkle’s prospects to finally be confirmed as Chairman?

First, the White House is clearly sticking by Buerkle to become permanent Chairman of the agency. The Administration has shown no intention of nominating someone other than Acting Chairman Buerkle—even in the face of prior, sporadic opposition to the nomination by some former Commissioners and members of Congress.

Second, speaking of opposition, Buerkle’s main detractor in the Senate, former Senator Bill Nelson (D-FL), Ranking Member of the Senate Committee on Commerce, Science, and Transportation in the 115th Congress, lost his 2018 election to now-Sen. Rick Scott (R-FL). Senator Nelson made no secret of his opposition to Buerkle’s nomination and frequently focused his attention on disagreements with Buerkle over the regulation of portable generators. While other individual Senators, including the Committee’s new Ranking Member, Sen. Maria Cantwell (D-WA), may have policy disagreements with Buerkle, their opposition to her nomination is not likely to be as vocal or strong as former Senator Nelson’s.

Third, the political dynamic at the Commission is different than in July 2017 and January 2018 – the last two times President Trump nominated Buerkle to serve as Chairman. With the Senate’s confirmation of Commissioners Dana Baiocco and Peter Feldman this past year, the Republicans now have a majority at the agency. Buerkle, as Acting Chair, has led that new majority. Elevating her to permanent Chair will change little in the current day-to-day operations of the Commission (though, it is true that her confirmation would have a longer-term impact on the political makeup of the Commission, but that subject is for another day).

From this vantage point, Buerkle deserves an up or down vote at the very minimum, and the opportunity to lead the Commission as permanent Chairman. She has shown herself to be an astute leader of the agency over the past two years who seeks consensus and input from all product safety stakeholders—industry and consumers alike. Time will tell whether her nomination moves forward in the Senate given the current political dynamic.

 

MichaelsEarlier this month, the Consumer Product Safety Commission in tandem with the Department of Justice withdrew its “material misrepresentation” claim in its ongoing lawsuit against arts and crafts retailer Michaels Stores. The Government had alleged, inter alia, that Michaels made a material misrepresentation to the agency in its Section 15(b) Report for certain glass vases that shattered during normal handling. The Government’s withdrawal of this claim raises interesting questions as to what constitutes a “material misrepresentation” – in this case to the CPSC – and why the claim was withdrawn.

Continue Reading CPSC Withdraws Material Misrepresentation Claim against Michaels Stores in Shattered Vases Case

iStock_000005544549_FullOn March 30, 2017, Crowell & Moring’s Advertising & Product Risk Management Group hosted a webinar in which we discussed likely changes on the horizon at the Food & Drug Administration, Consumer Product Safety Commission, and the National Highway Traffic Safety Administration. We also discussed the relationship between these agencies and the Department of Justice, particularly with respect to enforcement trends.

The roundtable addressed what the regulated community can expect under the Trump Administration at the FDA, CPSC, and NHTSA. Our team engaged in a lively discussion highlighting where the agencies stand now in terms of appointments and leadership, and forecasting where policy might shift. Specifically, the panel focused on where, and how, the Trump Administration might affect current agency priorities including topical discussions of emerging products such as autonomous cars, and emerging issues including lithium ion batteries, as well as hacking concerns on interconnected products.

Please click here to access an on-demand recording of the webinar (note: you must complete the registration form for access).

Key Topics:

  • Taking stock: Where are we now? What happens before new officials at the FDA, NHTSA, CPSC and DOJ are nominated and confirmed?
  • Where and how will the Trump administration affect current agency priorities?
  • Can autonomous vehicle technology and interconnected products thrive in the next four years? Any advantages or hurdles?
  • Will we continue to see aggressive enforcement agendas at the agencies and how will the DOJ respond? How litigious will these agencies be in the coming months and years?
  • What is the future of safety policy and rulemaking? Can these agencies met the EO requiring the repeal of two rules for every one promulgated? And what impact will the federal hiring freeze have on safety programs?

Cheryl A. Falvey, Scott Winkelman, John Fuson, Dan Campbell, Lauren Bell, Rebecca Chaney, and Matthew Cohen conducted this webinar.

Cars on highwayMore than two months after President Donald Trump’s inauguration, the automotive industry continues to face substantial uncertainty regarding the direction and priorities of the National Highway Traffic Safety Administration (NHTSA) over the next few years. For now, we can only guess.  The new Transportation Secretary, Elaine Chao, was confirmed January 31.  She takes over a NHTSA that had been working hard to keep up with emerging technologies – while acting increasingly muscular in its fines and other punishments under the prior administration.

For some safety agencies, it is much easier to read the tea leaves under the new administration. For example, at the Consumer Product Safety Commission, for example, we know that there is a new Republican Acting Chair (Ann Marie Buerkle), and that the five commissioners will remain 3-2 in favor of Democrats until at least October 2017 when Democratic Commissioner Marietta Robinson’s term on the Commission expires.  See prior article here.  And, following Acting Chair Buerkle’s public remarks last month at the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO), we know that her top three priorities include: (1) collaborating with all product safety stakeholders; (2) taking a balanced and reasonable approach to regulation; and (3) expanding product safety education and awareness for consumers.  See prior article here.

Continue Reading What Does The Future Hold For NHTSA?

First 100 Days LogoThursday, March 30, 2017 1:00 – 2:00 p.m. Eastern

Aggressive enforcement, massive recalls and proactive safety agendas left an indelible impression on the product safety world under the Obama administration. Product safety is no longer a bipartisan affair. But what will the Trump administration mean for your regulatory compliance programs? What changes will we see and how will they affect your safety program?

Join us for a roundtable discussion of what the regulated community can expect under the new administration at the Food & Drug Administration, Consumer Product Safety Commission and the National Highway Safety Administration. We’ll help you to forecast where policy shifts on by focusing on topical discussions of emerging products such as autonomous cars, drones, miniaturized cameras and e-cigarettes, and emerging issues including fire and lithium ion batteries, as well as hacking concerns on interconnected products.

Click here to register for this webinar, or click here to view the event on Crowell.com.

Key topics:

  • Taking stock: Where are we now? What happens before new officials at the FDA, NHTSA, CPSC and DOJ are nominated and confirmed?
  • Where and how will the Trump administration affect current agency priorities?
  • Can autonomous vehicle technology and interconnected products thrive in the next four years? Any advantages or hurdles?
  • Will we continue to see aggressive enforcement agendas at the agencies and how will the DOJ respond? How litigious will these agencies be in the coming months and years?
  • What is the future of safety policy and rulemaking? Can these agencies met the EO requiring the repeal of two rules for every one promulgated? And what impact will the federal hiring freeze have on safety programs?

Speakers:

First 100 Days Logo

Historically, as administrations change at the safety agencies, new priorities and shifting judgments on risk-based hazard assessment drive regulatory burdens up or down. The effect of President Trump’s executive order requiring the repeal of two rules for every one promulgated is yet to be seen when it comes to rulemaking at consumer facing safety agencies such as the National Highway Traffic Safety Administration, Food and Drug Administration, and Consumer Product Safety Commission.

The CPSC, as an independent agency, could take the position that the E.O. simply does not apply to them.  The White House agrees.  But the reality is that very few $100 million rules have been issued by the CPSC over the entire life of the agency.  That is because its enabling statute favors voluntary industry standards over mandatory rules.  Indeed, many of the CPSC rules affecting product performance have been mandated by Congress and could not be repealed by the agency absent an act of Congress.  Still others may require some APA process before they can be legally repealed or changed.

Continue Reading Safety Agencies after Trump’s “2 for 1” Executive Order: What it May Mean for Regulating the Safety of IoT and other Emerging Technologies

First 100 Days LogoJoin Us for a Webinar – Thursday, March 30, 2017 1:00 – 2:00 p.m. Eastern

Aggressive enforcement, massive recalls and proactive safety agendas left an indelible impression on the product safety world under the Obama administration. Product safety is no longer a bipartisan affair. But what will the Trump administration mean for your regulatory compliance programs? What changes will we see and how will they affect your safety program?

Join us for a roundtable discussion of what the regulated community can expect under the new administration at the Food & Drug Administration, Consumer Product Safety Commission and the National Highway Safety Administration. We’ll help you to forecast where policy shifts on by focusing on topical discussions of emerging products such as autonomous cars, drones, miniaturized cameras and e-cigarettes, and emerging issues including fire and lithium ion batteries, as well as hacking concerns on interconnected products.

Please click here to register for this webinar, or click here to view the event on Crowell.com.

Key topics to be discussed: Continue Reading Webinar: The Safety Agencies in Transition – What to Expect at FDA, CPSC and NHTSA in the First 100 Days

Acting Chair Ann Marie Buerkle
Acting Chair Ann Marie Buerkle

This past Wednesday, in her first public remarks as Acting Chair of the U.S. Consumer Product Safety Commission (CPSC), Ann Marie Buerkle announced her top three priorities. As our readers know from our previous post, on February 9, then Commissioner Buerkle became Acting Chair of the CPSC after Commissioner Elliot Kaye stepped down as Chairman. Speaking to the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO), Acting Chair Buerkle announced that her top three priorities include: (1) collaborating with all product safety stakeholders; (2) taking a balanced and reasonable approach to regulation; and (3) expanding product safety education and awareness for consumers.

The overarching theme of Chairman Buerkle’s remarks could not have been more clear: the core mission of product safety does not change with respect to who is in the White House—the focus needs to remain on safety, data, and science, and, to further that mission, all product safety stakeholders should remove their stereotypes of different groups within the community and work collaboratively and creatively to further a common goal.

To that end, Chairman Buerkle stated that she will continue to approach product safety as she has done since taking her seat on the Commission in 2013 in order to further the agency’s mission—she will strive for good governance, build relationships across the safety community, take advantage of available data and science, and rely upon the expertise available inside and outside of the Commission.

Acting Chair Buerkle’s top three priorities include: Continue Reading CPSC Acting Chair Buerkle Announces Top Priorities at Product Safety Conference

The U.S. Consumer Product Safety Commission (CPSC) has a new Acting Chairwoman: Commissioner (and former Congresswoman) Ann Marie Buerkle.  Although no formal announcement has been made, those within the agency have acknowledged that current Chairman Elliot Kaye relinquished the chairmanship yesterday.  Commissioner Buerkle, one of the two Republican members of the Commission and Vice-Chair of the Commission since January 19, assumed her new duties once Kaye announced his decision to the agency.

Former Chairman Kaye has not resigned his seat on the Commission—his announcement relates to the chairmanship only.  This development presents an unusual dynamic moving forward: although the Commission will now be chaired by a member of the President’s political party, the Republicans will remain the minority party on the Commission until at least October 2017 when Democratic Commissioner Marietta Robinson’s term on the Commission expires.

Commissioners’ terms are fixed and are independent of the Administration (whichever political party is in power).  Thus, absent the early resignation of a Democratic Commissioner, the Commission will be led by a Chair who does not command a 3-2 voting majority based on political party.  Democratic Commissioners Kaye, Adler, and Robinson remain in the majority and incoming Acting Chair Buerkle and Commissioner Mohorovic remain in the minority.

Given this highly unusual circumstance, policy changes at the Commission are not likely to come fast; the transition will occur over the coming year.  Nevertheless, Acting Chairwoman Buerkle will have additional resources at her disposal and be able to set new priorities for the Commission.  We expect that Acting Chairwoman Buerkle will continue to reach out to all members of the product safety community as she has done over her tenure as a Commissioner and listen to the concerns of all stakeholders.

Photo Credit: ICPHSO
Photo Credit: ICPHSO

The International Consumer Product Health and Safety Organization’s 2017 Annual Meeting & Training Symposium is being held February 20-23, 2017 in Orlando, Florida. The theme for this year’s meeting is “Evaluating & Managing Risk.”

Cheryl Falvey, former general counsel of the Consumer Product Safety Commission (CPSC) and partner in the Advertising & Product Risk Management Group, is speaking on February 22nd. Her session is entitled “Practical Lessons In Identifying Risk, Using Effective Tools to Manage It, and Using Data to Meet Regulatory Obligations – In Other Words, How to Stay Out of Trouble!” Cheryl will sit on a panel of industry representatives, all of whom have previously work at CPSC. This panel will provide both the industry perspective as well as insights from the panelists based upon their experiences at CPSC on what one might expect from the regulatory agency responsible for product safety.

Key topics will include:

  1. Guidance and tools that exist to assist industry officials in identifying reportable safety issues at the earliest possible moment to avoid late reporting and exposing consumers to an avoidable risk.
  2. Development of a comprehensive internal compliance program to identify risks and/or defects before they can do harm to your customer.
  3. Use of available systems to assist you in identifying risks/defects.
  4. Understanding what data to collect and review to assist in making appropriate determinations and when to actually report information to CPSC.

To register for the ICPHSO 2017 Annual Meeting & Training Symposium, please visit the main event page.