Consumer Product Safety Commission
OCL is responsible for civil and criminal affirmative litigation, and defensive
civil litigation, under statutes administered by the United States Consumer
Product Safety Commission (the "CPSC"). Affirmatively, OCL may assist the
CPSC in its enforcement work by invoking a variety of statutory remedies
for violations. OCL may also support the CPSC's enforcement work by seeking
court intervention when necessary to overcome resistance to administrative
proceedings. Defensively, OCL represents CPSC in federal court challenges
to its actions.
A. Statutes Administered by the CPSC
The Consumer Product Safety Act, 15 U.S.C. §§ 2051 et seq. (the "CPSA"),
confers on the CPSC broad authority to protect the public against unreasonable
risks of injury from consumer products. However, Congress has directed that
the CPSC should, absent an express finding of need, rely on alternative,
more targeted authority to address risks presented by defined categories
of consumer products. 15 U.S.C. § 2079(d).
The alternative authority is conferred by the Flammable Fabrics Act, 15
U.S.C. §§ 1191 et seq. (the "FFA"), the Federal Hazardous Substances Act,
15 U.S.C. §§ 1261 et seq. (the "FHSA"), and the Poison Prevention Packaging
Act of 1970, 15 U.S.C. §§ 1471 et seq. (the "PPPA"). In addition, the CPSC
administers the Refrigerator Safety Act, 15 U.S.C. § 1211 et seq. ("RSA").
The scope of each of these statutes is outlined below. These outlines,
however, are not an exhaustive treatment of enforcement remedies and tools
available to the CPSC.
1. The Consumer Product Safety Act
Regulatory jurisdiction under the CPSA extends fairly broadly across
the range of consumer products.(2)
The CPSC has authority under the CPSA to promulgate binding labeling
or performance standards, or rely expressly on non-governmental standards,
to protect the public from unreasonable risks of injury from consumer
products. 15 U.S.C. § 2056. In addition, the CPSA provides for mandatory
reporting (by manufacturers, distributors, and retailers) of known failures
of consumer products to meet applicable standards, of information suggesting
a product defect that could create a substantial risk of injury, and
of information suggesting an inherent unreasonable risk of serious injury
or death. 15 U.S.C. § 2064(b).(3)
On the basis of information reported in compliance with § 2064(b)
or obtained through other means,(4)
the CPSC is broadly empowered, through administrative processes, to
order appropriate corrective action as to hazardous consumer products.
The CPSC can, for instance, require product recalls or a halt to distribution.
15 U.S.C. § 2064(c) and (d). The CPSA authorizes the CPSC to conduct
on-site inspections of regulated firms for purposes of enforcement.
15 U.S.C. § 2065.
2. The Flammable Fabrics Act
The FFA authorizes the CPSC to issue binding flammability and related labeling
standards to protect the public against unreasonable risks of fire that
could lead to death, personal injury, or significant property damage. 15
U.S.C. § 1193. Jurisdiction under the FFA extends essentially to clothing
and to interior furnishings composed of fabric and related materials. 15
U.S.C. § 1191. One distinctive feature of the FFA is that it deems any violation
to be unlawful conduct under the Federal Trade Commission Act and equips
the CPSC with authority to take enforcement action according to the remedies
and procedures provided for by that Act. 15 U.S.C. §§ 1192, 1194(a) - (c).
3. The Federal Hazardous Substances Act
The FHSA confers jurisdiction over defined categories of potentially
injurious consumer goods presenting hazards such as toxicity, combustion,
radioactivity, or unreasonable risks to children of electric shock,
choking, burns to the skin, or other physical harm. See generally 15
U.S.C. § 1261 (definitions).(5)
To address unreasonable risks of injury within the scope of the FHSA,
the CPSC may by rule impose binding labeling requirements, performance
standards, or, if need be, outright product bans. In addition, the FHSA
generally subjects all hazardous substances to certain baseline labeling
requirements. 15 U.S.C. §§ 1261(p), 1262.
As does the CPSA, the FHSA broadly empowers the CPSC, through administrative
processes, to order appropriate corrective action to guard against unreasonable
risks, including product recalls and a halt to distribution. 15 U.S.C. §
1274(a), (b), and (c). Like the CPSA, the FHSA authorizes the CPSC to conduct
on-site inspections of regulated firms for purposes of enforcement. 15 U.S.C.
4. The Poison Prevention Packaging Act of 1970
The PPPA applies to household substances within both CPSC and FDA jurisdiction.
It authorizes the CPSC, by rule, to set standards for labeling and packaging
so as to protect children from potential serious harm. If it is within the
CPSC's jurisdiction, a household product that is subject to a PPPA standard,
and that fails to meet it, is deemed to be improperly labeled under the
FHSA. 15 U.S.C. § 1261(p). By dint of that cross-reference, any CPSC enforcement
action founded upon a PPPA standard would proceed under authority conferred
by the FHSA.
5. The Refrigerator Safety Act
The RSA requires that household refrigerators be equipped with a mechanism
allowing the door to be opened from the inside, in accordance with standards
prescribed by the CPSC. 15 U.S.C. §§ 1211, 1213.
B. OCL Litigation in Conjunction with the CPSC
The enforcement remedies and tools available under statutes that the CPSC
administers are largely parallel, as are the types of litigation that OCL
conducts under those statutes. Each major type is discussed below, with
reference to illustrative cases and underlying statutory authority.
These statutes share a design feature in how they prohibit specified behavior
and provide remedies. Each statute enumerates in one section the "unlawful"
or "prohibited" acts. See 15 U.S.C. § 2068 (CPSA), 15 U.S.C. § 1192 (FFA),
15 U.S.C. § 1263 (FHSA), 15 U.S.C. § 1211 (RSA). Sanctions (either civil
or criminal) and injunctive relief are available upon an adequate showing
of "unlawful" or "prohibited" conduct.
Most commonly, OCL's enforcement litigation focuses upon conduct such as
the unlawful interstate distribution of goods that fail to comply with pertinent
performance or labeling requirements, the failure to make required product
hazard reports, or the failure to permit a statutorily-authorized facility
1. Criminal Prosecution
The CPSC-administered statutes all provide for the remedy of criminal prosecution.
15 U.S.C. § 2070 (CPSA), 15 U.S.C. § 1196 (FFA), 15 U.S.C. § 1264 (FHSA),
15 U.S.C. § 1212 (RSA). Although the mens rea required for conviction differs
from statute to statute (as do some other particulars), the maximum term
of incarceration for a conviction under any of the pertinent provisions
does not exceed one year. Thus, these are misdemeanor provisions. Nevertheless,
where appropriate, OCL can utilize other criminal statutes, including felony
provisions, to prosecute conspiracy, fraud, obstruction of justice, false
statements, and other related federal offenses that may emerge in the context
of CPSC regulation.
In one Colorado prosecution, the defendant pled guilty to 15 misdemeanor
violations of the FHSA and PPPA. The defendant sold poisonous chemicals
used in solar power systems. He distributed them in recycled food containers
lacking child-resistant closures and required warning labels. This led to
one death, and thereafter the defendant continued shipping products in unlawful
packaging. He was sentenced in 1998 to over 23 months' incarceration for
these misdemeanor violations. In another case, OCL prosecuted a manufacturer
of unsafe baby pacifiers and rattles. The case led to a plea agreement providing
for the maximum possible criminal fines under the FHSA. See United States
of America v. Luv N' Care International, Inc. et al., 897 F. Supp. 941
(W.D. La. 1995) (relating to the disposition of pretrial motions).
2. Suit for Civil Penalties
Knowing violations of CPSC-administered statutes may also be sanctioned
through the assessment of civil penalties. 15 U.S.C. § 2069 (CPSA), 15 U.S.C.
§ 1194(e) (FFA), 15 U.S.C. § 1264(c) (FHSA). Determination of appropriate
penalty amounts is guided by criteria specified in the statutes. The statutes
also impose limits on the amounts that may be recovered for individual violations
and for related series of violations. The ceilings allow for assessment
of penalties for a related series of violations in excess of $1 million,
depending on the number of violative products involved.
In 1996, after extensive civil discovery, OCL settled companion suits
against a major manufacturer of juvenile products by accepting a civil
penalty of $725,000. United States v. Cosco, Inc., Nos. IP-95-1648
and IP-95-1649 (S.D. Ind., filed December 11, 1995). In the suits, OCL
contended that Cosco, Inc., the manufacturer, had knowingly failed to
comply with product hazard reporting requirements by withholding from
the agency dozens of consumer complaints about entrapment of the head
or neck of children in toddler beds and accessory guardrails.
3. Suit for Injunction
Federal district courts are expressly authorized under the leading CPSC-administered
statutes to restrain violations of the statute or of CPSC orders. 15
U.S.C. § 2071(a) (CPSA), 15 U.S.C. § 1267 (FHSA). Courts also have authority
to grant interim injunctive relief pending the completion of administrative
proceedings. 15 U.S.C. § 2064(g) (CPSA), 15 U.S.C. § 1195(a) (FFA).
OCL may seek orders of injunction either as part of a civil suit also
seeking civil penalties, or independently. United States v. Focht,
882 F.2d 55 (3d Cir. 1989), is an example of the type of involved litigation
that may ensue if the CPSC encounters resistance in trying to obtain
4. In rem Seizure Actions
CPSC-administered statutes also provide for the removal of violative goods
from the market through in rem seizure actions. 15 U.S.C. § 2071(b) (CPSA),
15 U.S.C. § 1195(b) (FFA), 15 U.S.C. § 1265 (FHSA).
5. Enforcement Assistance
Resort to the courts may occasionally be necessary to vindicate the CPSC's
statutory authority to conduct inspections, issue administrative subpoenas,
and the like. In re Establishment Inspection of Skil Corporation, 846
F.2d 1127 (7th Cir. 1988), illustrates the kind of court intervention
that OCL may pursue on the CPSC's behalf.
6. Defensive Litigation
OCL represents the CPSC in federal court when aggrieved parties seek to
invalidate its actions, or to compel action contrary to the CPSC's intended
course. Most commonly, challenges are raised to labeling or performance
requirements that the CPSC may promulgate under the statutes it administers.
O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm'n., 92
F.3d 940 (9th Cir. 1996), is representative of OCL's defense of the
CPSC in such a context.
(2): Certain categories
of products -- including tobacco, pesticides, motor vehicles, and products
subject to FDA jurisdiction -- are expressly exempt from regulation
under the CPSA. See 15 U.S.C. § 2052(a)(1).
regulation, the CPSC has made the finding necessary to confirm that
the reporting requirements of 15 U.S.C. § 2064(b) apply to products
within the ambit of the FFA, the FHSA, and the PPPA. 16 C.F.R. § 1115.2(d).
(4): The CPSC might
otherwise gather such information through independent investigation,
or pursuant to 15 U.S.C. § 2084, which requires the manufacturer of
a consumer product to report information about products liability litigation
in defined circumstances.
(5): As does the
CPSA, the FHSA expressly exempts certain categories of goods from regulation.
15 U.S.C. § 1261(f)(2) and (f)(3).