CPSIA Update: Stay of Enforcement is No Legal Relief

By June 10, 2009Regulations

The Consumer Product Safety Commission has until recently followed a pattern when voting on petitions from industry groups — representing motorized vehicles and bicycles, for example — requesting exemptions from the Consumer Product Safety Improvement Act’s lead-content standards. The law clearly demands the impossible, absolute standard of there being NO possible lead absorption by children, and so the CPSC has voted to follow the law and deny the exemptions.

However, as ostensible relief, the CPSC also votes for stays of enforcement: Products X, Y and Z are still banned under the Consumer Product Safety Improvement Act, but the commission won’t actively seek to punish the violators for two years.

How are companies supposed to respond to this? Especially when the CPSIA granted state attorneys general enforcement authority and the threat of private lawsuits is also a real concern?

Marisa McQuilken of The National Law Journal examines the compliance issues in a new article, “Companies Navigate New Toy Safety Measure.” (That’s just headline-shortening, we assume. The CPSIA affects lots more than toys.) Excerpt:

Lawyers representing industry say they’re trying to help clients comply with the law, but that a big part of the job is strategizing about which rules require immediate attention and which ones — at least for now — can be set aside.

“You would never say ‘you can ignore something,'” said Charles Samuels, a partner at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo who focuses on consumer product regulation. “You simply have to say, in order of priority, this is how I would proceed. … Hopefully, you’re doing that in the same order of the actual risks to the public.”

Not surprisingly, the CPSC doesn’t quite see it that way. “We will focus enforcement on the areas of greatest risk to children,” said agency spokesman Scott Wolfson. “At the same time, we don’t want any company to think that they do not need to be in compliance with the new limits and standards that were established on Feb. 10.”

So the CPSC’s message is what again? Don’t sell that product, even though it poses no health or safety threat to children. If you do so, you are a lawbreaker. But we don’t care. Just don’t do it. While we look the other way.

We appreciate that the Commission has been forced into this incoherent regulatory approach. The law is badly written, reflecting a Congressional overreach spurred on by “consumer” activists and election-year politics.

The obvious answer is to fix the law, starting with longer implementation periods and more flexibility for the Consumer Product Safety Commission to engage in the risk assessment that could free it from this regulatory incoherence — in the process easing the legal liability that’s building for manufacturers and retailers.

Join the discussion One Comment

  • It’s simple; the CPSC is buying you some time in which to go out of business and/or retool your production to meet their standards. They don’t have the authority to rescind the Catch-22 in the standards, so they’re doing the best they can.

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