Last week, we attended the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO), where Robert Adler, Acting Chairman of the U.S. Consumer Product Safety Commission (CPSC) addressed the conference in his capacity as interim chairman of the agency. Acting Chairman Adler began his remarks by acknowledging that he is an “acting” chair who “doesn’t intend to do a lot,” as an expression of his desire for continuity at the agency and “a steady approach.” Notably, however, Chairman Adler then announced in the same remarks that he has directed the Office of Compliance to “renew efforts” to (1) issue unilateral safety warnings; and (2) seek civil penalties in his quest to “make sure that the CPSC uses every tool it has to promote public safety.” These directives are a departure from recent agency practice under the prior chair and confirm a more aggressive agency approach to compliance and enforcement.
Since January 8, 2020, the CPSC has issued three separate “unilateral” press releases warning consumers about a perceived hazard related to a specific product. While the Commission has been known to threaten issuance of unilateral releases at least in part to convince firms to conduct voluntary joint recalls, their actual publication is exceedingly rare. In fact, we are aware of only two unilateral releases issued by the agency in the past nine years—one from 2011 and the other from 2017.
Although the Commission is required to afford subject firms the opportunity to comment on any draft unilateral press release to ensure fairness and accuracy pursuant to Section 6(b) of the Consumer Product Safety Act, there is little that companies can do to stop their issuance short of seeking an injunction in federal court (a means of court relief, incidentally, which would be eliminated should Congress pass the SHARE Act introduced last month by Representative Bobby Rush (D-IL)). And going to court likely means the draft press release enters the public record, defeating much of the purpose of the relief sought.
Time will tell whether the agency’s re-introduction of the unilateral safety warning becomes a new enforcement trend. In the meantime, industry members should take notice.
In his remarks, Acting Chair Adler also expressed his desire to see more civil penalties levied against companies who violate product safety laws. Adler noted that in 2008, Congress boosted civil penalties (from $1.825 million for a related series of violations to $15 million for the same) in the Consumer Product Safety Improvement Act –“a mandate to the agency to act to protect the public.” The comments were eerily reminiscent of then-Chairman Elliot Kaye’s remarks at the 2015 and 2016 ICPHSO conferences about his direction to staff to seek stiffer higher civil penalties—soon followed by the agency’s first ten-figure civil penalty settlement. Activity on the civil penalty front under Acting Chairman Adler could result in the first civil penalty announcement since October 2018. This, too, is a material change in enforcement approach from the prior chair, who was a skeptic on civil penalties being the best means of securing consumer product safety.
Acting Chairman Adler also discussed the creation of a new consumer ombudsman position; addition of new staff focused on voluntary standards; the reorganization of the Office of Compliance; his dislike of Section 6(b)’s confidentiality provisions; and desire for cooperation amongst commissioners. He noted that the Commission’s current priorities include a focus on hazards to children – children’s products, crib bumpers, infant sleepers, window blind cords, and furniture tip-over. He explained that tip-over statistics are “gruesome and terrifying,” and the agency is working diligently to remedy the issue as it believes many items of furniture can comply with the current standard with simple and inexpensive redesigns.
Nevertheless, the hall chatter for the rest of the conference focused on Adler’s glaring remarks about unilateral press releases and civil penalties.
The Acting Chairman may indeed be a mere temporary “caretaker” of the chair until President Trump nominates a new chairman. His words, and deeds, suggest that he nonetheless intends to wield significant power in shaping the agency organizational structure and approach to wielding enforcement power.