Consumer Product Safety Commission

Asserting the authority to oversee the Consumer Product Safety Commission, Frank Pallone, Jr. (D-NJ), Chairman of the Committee on Energy and Commerce, and Jan Schakowsky (D-IL), Chair of the Subcommittee on Consumer Protection and Commerce, have requested information from the Commission concerning the CPSC’s workload and its dealings with the public with regard to consumer complaints and FOIA requests. In a letter to Acting Chairman Ann Marie Buerkle, the Committee has requested information such as:

  • A list of rulemakings, petitions, applications, complaints, requests, and other items pending before the CPSC, including the length of time the matter has been pending and associated staff;
  • The total number of reports of unsafe products received through saferproducts.gov from FY 2016-2019;
  • Information pertaining to the number of investigations opened and closed by the Office of Compliance & Field Operations from FY 2016-2019;
  • Details about involvement in voluntary standards development;
  • A list of all FOIA requests from FY 2016-2019;
  • A list of civil penalties, including lists of internal “referrals” for civil penalties; and
  • A list of all matters from which CPSC leadership or staff has been recused from FY 2016-2019 and the reason for each recusal.

The Committee has requested a complete written response to these questions by March 22, 2019. We expect that an oversight or similar hearing will likely follow the CPSC’s response, and we will continue to monitor developments.

The Senate today confirmed Kathleen Kraninger as CFPB Director by a party-line, 50-49 vote, with Sen. Tillis abstaining.  Kraninger will replace current Acting Director Mick Mulvaney, who also currently oversees Kraninger at the Office of Management Budget (OMB) where she is associate director of general government and Mulvaney is Director. Kraninger is expected to continue deregulatory initiatives launched during Mulvaney’s tenure as Acting Director at the CFPB. 

Kraninger is set to serve a five-year term pursuant to the Dodd-Frank Act.  However, current litigation challenging the constitutionality of the CFPB’s structure raises questions as to whether Kraninger will ultimately serve the full five-year term, particularly if a Democratic president is elected in 2020.  As we previously discussed here, the D.C. Circuit initially ruled that the CFPB was unconstitutionally structured because its single director can only be removed for “inefficiency, neglect of duty, or malfeasance in office,” but subsequently reversed the holding in an en banc decision.  The constitutionality of the CFPB’s structure is also being challenged in the Second and Fifth Circuits – increasing the likelihood that the Supreme Court will take up the issue at some point soon.

 

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.

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.

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