Hunton Retail Law Resource

The Fifth Circuit recently issued an opinion concluding that the CPSC violated the APA when it issued a final rule in 2017 limiting phthalate content in children’s products. The Consumer Product Safety Improvement Act of 2008 (CPSIA) bans children’s toys and child care articles containing more than 0.1 percent of several phthalate chemicals because of concerns that ingestion can have harmful health effects on children. Phthalates are used to make soft and pliable plastics, such as vinyl. The CPSIA also directed the agency to promulgate a final rule regarding phthalates. In 2017, the CPSC issued a final rule expanding the list of phthalates covered by the ban.

Trade associations representing chemical manufacturers sought direct review of the final rule. In a setback for the CPSC, a three-judge panel of the Fifth Circuit unanimously remanded the final rule to the agency. The Fifth Circuit concluded that the CPSC failed to comply with rulemaking procedures under the APA. Specially, the agency failed to conduct a standard cost-benefit analysis to determine whether the final rule was reasonably necessary to prevent or reduce an unreasonable risk of injury as required by governing CPSC statutes. In addition, the agency failed to allow proper notice-and-comment from the public to respond to the final rule after the CPSC changed its scientific justification from the proposed rule to the final rule. The Fifth Circuit left the rule in place but remanded it back to the CPSC to address the two procedural errors.

In other consumer product news, the CPSC Acting Chairman, Robert Adler, recently delivered a keynote address at the annual conference of the International Consumer Product Health and Safety Organization. At least two aspects of Adler’s address were noteworthy. First, Adler acknowledged the agency’s “unnecessary hiatus” from civil penalties and observed that the hiatus is over:

And a special note here: I’m proud to say that, after an unnecessary hiatus of several years, we’ve begun seeking civil penalties, culminating in two recent penalty settlements. By the way, I’m proud not because we’re in the business of racking up penalties—as my colleague and friend, Commissioner Baiocco correctly reminds me—but because, done thoughtfully, they are a necessary part of any properly run enforcement agency.

We discussed those two recent civil penalties here and here. Second, Adler stated that he plans to retire from the CPSC when his term ends in October. The agency’s current Commissioners are:

Adler’s announcement means there will now be at least three vacancies at the CPSC this year: (1) the current vacancy, (2) Adler’s replacement, and (3) Kaye’s replacement, whose one holdover year will expire in 2021. Thus, we expect President Biden to nominate individuals for Commissioner seats soon, followed by US Senate confirmation hearings.

Total Recalls: 18

Hazards: Fire/Burn/Shock (5); Injury (4); Fall (3); Crash (3); Violation of Federal Standard (2); Laceration (1)