LawFlash

CPSC to Industry: Get Ready for More – More Penalties, More Litigation, More Regulation

November 21, 2022

The US Consumer Product Safety Commission (CPSC) will take a hard and fast approach to product safety in FY23, according to its recently passed operating plan, with enforcement being at the top of its priority list.

The CPSC will levy swift and strong civil penalties for product safety infractions, but, under this plan, it will also evaluate 100% of those cases for potential referral to the Department of Justice (DOJ) for criminal prosecution of corporate offenders to meaningfully deter future misconduct. The CPSC will publicize import seizures to flex its power at the ports, and (funds permitting) increase staffing in the agency’s Offices of Compliance and Enforcement and the General Counsel.

These priorities signal that this Commission, which will likely oversee the agency beyond the current administration, will continue to increase the speed of its actions and the consequences for facilitating risky consumer products into commerce, and for failing to timely file Section 15(b) Reports, the legal requirement of manufacturers, sellers, distributors, and importers, to provide prompt notice to the agency when they learn of any information that “reasonably supports the conclusion” that a product contains a defect that could create a substantial product hazard or unreasonable risk of serious injury or death.

Beyond enforcement, there are other substantive issues that the CPSC plans to tackle in FY23, including the evaluation of chronic hazards associated with per- and polyfluoroalkyl substances (PFAS) in textiles and children’s products. PFAS is part of a larger initiative to enhance the agency’s efforts to track international standards on all chemicals that impact consumer products.

Air quality hazards associated with gas stove emissions will also be on the agency’s to-do list. The agency will be looking at whether there are workable solutions to gas appliance emissions as opposed to a potential ban of those appliances.

Safety equity will be enhanced by the CPSC’s commitment to integrate data and analyses of product risks having disparate impacts on age and gender. The agency will also study whether certain products or product classes more adversely impact underserved communities. Expect secondary markets, resellers, and eplatforms to be some targets in those research reports.

Other CPSC objectives for FY23 include the following:

  • The CPSC will employ more continuity in its port inspections and operational activities, setting stronger metrics for improving its targeting to stop hazardous products from reaching consumers.
  • The beta pilot test of the agency’s new efiling program will happen in FY23, which should enable importers of regulated consumer products to file electronically certain data with US Customs and Border Protection (CBP) for importation purposes. The results will inform rulemaking.
  • Infant safety will remain important, with more anticipated rulemakings for sleep products and infant rockers. Expect more discussion on whether the existing pillow ban should be expanded to include nursing and other infant pillows.
  • Guidance and enforcement on Reese’s law, which requires manufacturers to meet certain packaging requirements for certain batteries under the Poison Prevention Packaging Act by mid-February 2023. A warning label is now required on packaging and in any literature or user manual that accompanies a consumer product containing button cell and coin batteries that warns of the risk of injury from ingestion by children 6 and younger during “reasonably foreseeable use or misuse conditions.”
  • The agency will strengthen protection of its data and networks. It will continue to monitor whether data privacy legislation negatively impacts recall effectiveness.
  • CPSC communications and safety messaging will expand into more communities. This will include rulemaking aimed at improving the agency’s ability to share product hazard information more readily with the public. Unilateral press releases will be used liberally.

The FY23 operating plan is consistent with the goals advanced by the CPSC in 2022. Last year, the CPSC was arguably the most active it had ever been, operating at historical levels with regard to regulatory actions. The CPSC passed 12 mandatory standards, proposed 23 final rule packages, banned inclined and other infant sleep products, generated congressional action in the enactment of the Safe Sleep for Babies Act of 2021, and Reese’s Law.

The Agency levied four civil penalties in FY 2022 totaling $32 million. CPSC initiated litigation against multiple firms that failed to timely file Section 15b Reports and refuse to settle, and it received affirmation from the US Court of Appeals for the District of Columbia Circuit for its rulemaking authority and expertise arising out of a challenge to its sleep products rule.

The CPSC conducted more than 60,000 product screenings at various ports of entry and removed nearly 19 million non-compliant or unsafe items from commerce. Expect the agency to continue its interdicting activities at ports of entry.

While funding remains one of the agency’s largest obstacles to achieving its robust agenda, one thing is for sure; the CPSC, now celebrating its 50-year anniversary, is not the CPSC of the past.

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