Consumer Product Safety

Last week, CPSC Commissioner Joseph Mohorovic, one of the two Republicans on the five-person Commission, announced that he would be ending his term as Commissioner two years early to join the Federal Regulatory and Compliance practice at the law firm Dentons.  His last day at the Commission was October 20.  Mr. Mohorovic became a Commissioner in July 2014 and had commuted from Chicago during his tenure.  He cited a desire to spend more time with his family as the basis for his resignation.

In the short term, the Commission will have a 3-1 Democrat majority, but Dana Baiocco (R) has been nominated to fill the seat of Commissioner Marietta Robinson (D) as her term ends this month.  Once that nomination is confirmed, the Commissions would have two Republicans (Ms. Baoicco and Acting Chair Ann Marie Buerkle), two Democrats (Commissioners Robert Adler and Elliot Kaye), and one open slot.

Last Friday, ten consumer and privacy advocacy groups, including the Electronic Privacy Information Center, Center for Digital Democracy, and Consumer Watchdog, sent a letter to Acting Chairman Ann Marie Buerkle, requesting that the CPSC recall the Google Home Mini smart speaker. The speaker was designed to respond to the voice commands, “OK, Google” and “Hey, Google,” as well as to a consumer pressing a small button on the top of the unit. Last week, the blog Android Police reported a glitch that caused the device to detect a touch even when a consumer was not pressing the button and remain “always on.” In response, Google issued a software update and completely disabled the button functionality.

The groups claim that this glitch resulted in Google intercepting and recording private conversations without consumers’ knowledge or consent, and that the device therefore poses a risk to consumer safety. Although they acknowledge that “the privacy concerns associated with Internet-connected devices appear different from traditional public safety concerns,” the groups call on the CPSC and its “broad mandate” to respond to such concerns, particularly in light of the “failure” of the FTC to investigate complaints involving Internet-connected devices.

Under the Consumer Product Safety Act, manufacturers, importers, distributors, and retailers have an obligation to immediately report to the CPSC when they obtain information that reasonably supports the conclusion that a consumer product contains a defect that could create a substantial product hazard, or creates an unreasonable risk of serious injury or death. While the groups note that the CPSC recently announced a recall of Internet-connected devices, the cited recall involved a product that posed an actual injury to consumers. CPSC action based on a non-physical injury, such as invasion of privacy, would be breaking new ground, but manufacturers, distributors, and retailers of IoT and other connected products should continue to watch for new developments and consider the potential safety issues associated with the products.

The Senate Committee on Commerce, Science and Transportation approved Acting Chairman Ann Marie Buerkle’s nomination to become CPSC Chairman last Thursday in a 14-13 vote along party lines. She is expected to be confirmed by the full Senate, and would then be able to move forward with staff appointments. Buerkle has served as Acting Chairman since February, and was nominated to become Chairman in July. For more information about Acting Chairman Buerkle’s priorities at the CPSC, please view our previous blog posts here and here.

Associate Lauren Myers contributed to this post. She is practicing under the supervision of principals of the firm who are members of the D.C. Bar.

Yesterday, President Trump announced his intent to nominate Dana Baiocco as CPSC Commissioner. If confirmed, Ms. Baiocco would replace Commissioner Marietta Robinson when her term expires on October 27, and would serve a seven-year term. Ms. Baiocco would join Acting Chairman Ann Marie Buerkle and Commissioner Joseph Mohorovic, and give the five-member Commission a republican majority once again. She has already received the support of Chairman Bob Latta (R-OH) of the House Energy and Commerce Committee’s Digital Commerce and Consumer Protection Subcommittee.

Currently, Ms. Baiocco is a partner at Jones Day in Boston, and her practice focuses on products liability and tort litigation, as well as regulatory and reporting obligations enforced by the CPSC, for a number of high-profile clients. Ms. Baiocco attended Duquesne University School of Law, and clerked for The Honorable Gustave Diamond of the U.S. District Court for the Western District of Pennsylvania prior to joining Jones Day’s Pittsburgh office as an associate. She became partner in 2007, and helped found the firm’s Boston office in 2011.

The Senate Commerce Committee also announced yesterday that, on September 27, they will hold a nomination hearing for Acting Chairman Ann Marie Buerkle to become CPSC Chairman. She has served as Acting Chairman since February, and was nominated to become Chairman in July. Acting Chairman Buerkle has emphasized her desire to collaborate with stakeholders, to take a “balanced and reasonable approach” to regulation when data justifies rulemaking, and to use information campaigns to educate consumers and industry.

Have ideas to lighten the load for complying with consumer product safety regulations? The Consumer Product Safety Commission (“CPSC” or “Commission”) wants to hear about them.  The Commission has asked for comments and suggestions for ways it could potentially reduce burdens and costs of its existing rules, regulations or practices without harming consumers. CPSC requests that any submissions include information and data in support of the suggestions.

The CPSC is open to any proposals. According to Acting Chairman Ann Marie Buerkle, “The agency’s recent request for information seeking public input on ways to potentially reduce burdens and costs is not limited to existing rules. CPSC is interested in hearing any and all ideas, big or small, that might help ease regulatory burdens without compromising safety.” Acting Chairman Buerkle, who was nominated to the Commission by President Obama in 2013, has said that “seeking to reduce regulatory burdens is responsible governance.” The request for suggestions is in line with Buerkle’s general policy of promoting transparency and collaboration with the industry. For a further discussion of her policies, see our previous post here.

Submissions are due by September 30. This is an opportunity for companies to provide feedback in a collaborative, constructive context.  We will continue to track the comments and provide updates on any important developments.

Summer Associate Carmen Tracy contributed to this post. Ms. Tracy is not a practicing attorney and is practicing under the supervision of principals of the firm who are members of the D.C. Bar.

Acting Chairman of the Consumer Product Safety Commission (“CPSC”) Ann Marie Buerkle highlighted her priorities and recent noteworthy developments in a recent newsletter.  She emphasized her desire to collaborate with stakeholders, to take a “balanced and reasonable approach” to regulation when data justifies rulemaking, and to use information campaigns to educate consumers and industry. She shared a few rulemaking updates, including movement on the revocation of the magnet standard from the CFR, oral presentations on the NPRM for portable generators, and progress on the NPR related to table saws.

Buerkle noted the following upcoming events:

  • Monthly educational webinar series sponsored by the CPSC’s Small Business Ombudsman. Last month they provided an overview of updates to the toy standard. More industry-specific resources to come.
  • Solicitation of stakeholder feedback on test burden reduction, recall effectiveness, and the FY 2018 & 2019 priorities. Stay tuned regarding these opportunities once dates are finalized.

Buerkle also noted two key staffing changes:

  • Robert Kaye was named Director of the Office of Compliance and Field Operations.  Mr. Kaye joined the CPSC from the Department of Education, but had spent most of his career at the FTC where he most recently was Chief Litigation Counsel in the Bureau of Consumer Protection.
  • Jim Joholske was promoted to Director of the Office of Import Surveillance. Mr. Joholske had been the deputy head of the Import Surveillance Office since it was first created as a division of Compliance a decade ago.

Chairman Buerkle has repeatedly emphasized transparency and encouraged stakeholders to share feedback with her and her staff about the CPSC’s performance.  We encourage companies and other entities to take her up on that offer, whether through formal submissions such as comments to proposed rulemaking or through informal channels. Anyone interested in subscribing to the periodic newsletter can call the CPSC at 301-504-7978 or send an email via the contact form on the website.

Register Now for Keeping Up with the Consumer Product Safety Commission: Update on Recent CPSC Developments, the latest in our 2017 Advertising and Privacy Law Webinar Series

Keeping Up with the CPSCWith the complexity of today’s product safety regulatory environment and the civil penalty amounts for failure to report safety hazards, it is more important than ever for manufacturers and retailers to identify and resolve potential liability issues confidentially before they draw scrutiny from regulators and negative publicity.

Please join chair of Kelley Drye’s Advertising and Marketing and Consumer Product Safety practice Christie Grymes Thompson for an update on consumer product safety. The webinar will cover hot button legal issues and summarize significant developments in consumer product safety and at the Consumer Product Safety Commission.

Kelley Drye Speakers:

Christie Grymes Thompson, Partner

To register, please click here.

CLE Information:

Kelley Drye is an accredited provider of NY, IL & CA CLE. This non-transitional continuing legal education program has been approved for 1.0 NY Professional Practice credit, 1.0 Illinois credit, and 1.0 CA General credit. We will apply for CLE credit in other jurisdictions, upon request, but cannot guarantee approval. If you are interested in applying to receive CLE credit, please include your desired jurisdiction and your bar registration number when you register.

Follow the Practice

 

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Late Wednesday evening, Democrat Elliot Kaye resigned as chair of the Consumer Product Safety Commission.  Republican Commissioner Ann Marie Buerkle has assumed the position of Acting Chair until a new chair is appointed by the President and confirmed by the Senate.  Kaye will remain on the CPSC as a commissioner, with a term set to expire October 2020.  Buerkle said in a statement last week, “I am honored to have the opportunity to lead CPSC as Acting Chairman as the agency transitions under a new Administration.”  She further stated,

I will work to enhance relationships so that CPSC can leverage the knowledge, insight, and expertise of the entire consumer product safety community. We are all consumers and what we do at CPSC impacts the lives and livelihoods of all Americans. If we take a thoughtful, collaborative approach, we will impact the culture of product safety in a positive and meaningful way.

Commissioner Buerkle has been vocal in her opposition to the CPSC’s recent proposals for the voluntary recall notices and 6(b) proposals.   In a statement made last October, Buerkle advocated that the proposed rules be terminated, calling them “unsalvageable.”  She stated, “Any attempt to move forward now would put the staff in an extremely uncomfortable position of responding to harsh comments on ideas that did not originate with the staff.”

Buerkle’s elevation means that the Commission holds onto its 3-2 Democratic majority, at least until Commissioner Robinson’s term expires this October and the Trump administration appoints a Republican commissioner to replace her.

On January 19, 2017, Commissioners at the Consumer Product Safety Commission elected Commissioner Ann Marie Buerkle to be the next vice chair.  Commissioner Buerkle was appointed to the agency by President Obama in May 2013 with a term expiring in October 2018.   As vice chair, Buerkle would become acting CPSC chair if that position is vacated by Elliot Kaye.  Chairman Kaye, who was nominated by President Obama in 2014, has not indicated any intention to step down, but may be asked to leave, as CPSC regulations allow, by the new Administration.   If Chairman Kaye voluntarily steps down or is asked to leave, Vice Chairwoman Buerkle would assume the position of Acting Chair until a new chair is appointed by the President and confirmed by the Senate.

Commissioner Buerkle has been vocal in her opposition to the CPSC’s recent proposals to increase civil monetary penalties and to modify the voluntary recall program and 6(b) rules.  “Without question,” Commissioner Buerkle testified, “these initiatives undermine any engagement and collaborative efforts” between the Agency and all stakeholders, especially the regulated community. 

The election of Commissioner Buerkle comes one day before the White House ordered an immediate freeze of pending regulations. In a memo to federal departments and agencies, the Trump Administration said the freeze was designed to ensure President Donald Trump’s appointees or designees “have the opportunity to review any new or pending regulations.” The regulatory freeze halts until further notice any regulation yet to be sent or yet to be published in the Federal Register.  This includes a number of regulations proposed by the CPSC, in particular, the proposed 6(b) rules setting forth CPSC’s policy on the public disclosure of information from which the identity of a manufacturer or private labeler of a product can be ascertained. 

We will continue to monitor for further developments. 

Please join Kelley Drye in 2017 for the Advertising and Privacy Law Webinar Series. Like our annual in-person event, this series will provide engaging speakers with extensive experience and knowledge in the fields of advertising, privacy, and consumer protection. These webinars will give key updates and provide practical tips to address issues faced by counsel.

This webinar series will commence January 25 and continue the last Wednesday of each month, as outlined below.

January 25, 2017 | February 22, 2017 | March 29, 2017 | April 26, 2017 | June 28, 2017
July 26, 2017 | September 27, 2017 | October 25, 2017 | November 29, 2017

Kicking off the series will be a one-hour webinar on “Marketing in a Multi-Device World: Update on Cross Device Tracking” on January 25, 2017 at 12 PM ET. For more information and to register, please click here. CLE credit will be offered for this program.