Consumer Protection Branch

THE CONSUMER PRODUCT SAFETY COMMISSION


CPB is responsible for civil and criminal affirmative litigation, and defensive civil litigation, under statutes administered by the United States Consumer Product Safety Commission (the "CPSC"). Affirmatively, CPB may assist the CPSC in its enforcement work by invoking a variety of statutory remedies for violations. CPB may also support the CPSC's enforcement work by seeking court intervention when necessary to overcome resistance to administrative proceedings. Defensively, CPB represents CPSC in federal court challenges to its actions.

A. Statutes Administered by the CPSC

The Consumer Product Safety Act, 15 U.S.C. §§ 2051 et seq. (the "CPSA"), confers on the CPSC broad authority to protect the public against unreasonable risks of injury from consumer products. However, Congress has directed that the CPSC should, absent an express finding of need, rely on alternative, more targeted authority to address risks presented by defined categories of consumer products. 15 U.S.C. § 2079(d).

The alternative authority is conferred by the Flammable Fabrics Act, 15 U.S.C. §§ 1191 et seq. (the "FFA"), the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261 et seq. (the "FHSA"), and the Poison Prevention Packaging Act of 1970, 15 U.S.C. §§ 1471 et seq. (the "PPPA"). In addition, the CPSC administers the Refrigerator Safety Act, 15 U.S.C. § 1211 et seq. ("RSA").

The scope of each of these statutes is outlined below. These outlines, however, are not an exhaustive treatment of enforcement remedies and tools available to the CPSC.

1. The Consumer Product Safety Act

Regulatory jurisdiction under the CPSA extends fairly broadly across the range of consumer products.(2) The CPSC has authority under the CPSA to promulgate binding labeling or performance standards, or rely expressly on non-governmental standards, to protect the public from unreasonable risks of injury from consumer products. 15 U.S.C. § 2056. In addition, the CPSA provides for mandatory reporting (by manufacturers, distributors, and retailers) of known failures of consumer products to meet applicable standards, of information suggesting a product defect that could create a substantial risk of injury, and of information suggesting an inherent unreasonable risk of serious injury or death. 15 U.S.C. § 2064(b).(3)

On the basis of information reported in compliance with § 2064(b) or obtained through other means,(4) the CPSC is broadly empowered, through administrative processes, to order appropriate corrective action as to hazardous consumer products. The CPSC can, for instance, require product recalls or a halt to distribution. 15 U.S.C. § 2064(c) and (d). The CPSA authorizes the CPSC to conduct on-site inspections of regulated firms for purposes of enforcement. 15 U.S.C. § 2065.

2. The Flammable Fabrics Act

The FFA authorizes the CPSC to issue binding flammability and related labeling standards to protect the public against unreasonable risks of fire that could lead to death, personal injury, or significant property damage. 15 U.S.C. § 1193. Jurisdiction under the FFA extends essentially to clothing and to interior furnishings composed of fabric and related materials. 15 U.S.C. § 1191. One distinctive feature of the FFA is that it deems any violation to be unlawful conduct under the Federal Trade Commission Act and equips the CPSC with authority to take enforcement action according to the remedies and procedures provided for by that Act. 15 U.S.C. §§ 1192, 1194(a) - (c).

3. The Federal Hazardous Substances Act

The FHSA confers jurisdiction over defined categories of potentially injurious consumer goods presenting hazards such as toxicity, combustion, radioactivity, or unreasonable risks to children of electric shock, choking, burns to the skin, or other physical harm. See generally 15 U.S.C. § 1261 (definitions).(5) To address unreasonable risks of injury within the scope of the FHSA, the CPSC may by rule impose binding labeling requirements, performance standards, or, if need be, outright product bans. In addition, the FHSA generally subjects all hazardous substances to certain baseline labeling requirements. 15 U.S.C. §§ 1261(p), 1262.

As does the CPSA, the FHSA broadly empowers the CPSC, through administrative processes, to order appropriate corrective action to guard against unreasonable risks, including product recalls and a halt to distribution. 15 U.S.C. § 1274(a), (b), and (c). Like the CPSA, the FHSA authorizes the CPSC to conduct on-site inspections of regulated firms for purposes of enforcement. 15 U.S.C. § 1270.

4. The Poison Prevention Packaging Act of 1970

The PPPA applies to household substances within both CPSC and FDA jurisdiction. It authorizes the CPSC, by rule, to set standards for labeling and packaging so as to protect children from potential serious harm. If it is within the CPSC's jurisdiction, a household product that is subject to a PPPA standard, and that fails to meet it, is deemed to be improperly labeled under the FHSA. 15 U.S.C. § 1261(p). By dint of that cross-reference, any CPSC enforcement action founded upon a PPPA standard would proceed under authority conferred by the FHSA.

5. The Refrigerator Safety Act

The RSA requires that household refrigerators be equipped with a mechanism allowing the door to be opened from the inside, in accordance with standards prescribed by the CPSC. 15 U.S.C. §§ 1211, 1213.

B. CPB Litigation in Conjunction with the CPSC

The enforcement remedies and tools available under statutes that the CPSC administers are largely parallel, as are the types of litigation that CPB conducts under those statutes. Each major type is discussed below, with reference to illustrative cases and underlying statutory authority.

These statutes share a design feature in how they prohibit specified behavior and provide remedies. Each statute enumerates in one section the "unlawful" or "prohibited" acts. See 15 U.S.C. § 2068 (CPSA), 15 U.S.C. § 1192 (FFA), 15 U.S.C. § 1263 (FHSA), 15 U.S.C. § 1211 (RSA). Sanctions (either civil or criminal) and injunctive relief are available upon an adequate showing of "unlawful" or "prohibited" conduct.

Most commonly, CPB's enforcement litigation focuses upon conduct such as the unlawful interstate distribution of goods that fail to comply with pertinent performance or labeling requirements, the failure to make required product hazard reports, or the failure to permit a statutorily-authorized facility inspection.

1. Criminal Prosecution

The CPSC-administered statutes all provide for the remedy of criminal prosecution. 15 U.S.C. § 2070 (CPSA), 15 U.S.C. § 1196 (FFA), 15 U.S.C. § 1264 (FHSA), 15 U.S.C. § 1212 (RSA). Although the mens rea required for conviction differs from statute to statute (as do some other particulars), the maximum term of incarceration for a conviction under any of the pertinent provisions does not exceed one year. Thus, these are misdemeanor provisions. Nevertheless, where appropriate, CPB can utilize other criminal statutes, including felony provisions, to prosecute conspiracy, fraud, obstruction of justice, false statements, and other related federal offenses that may emerge in the context of CPSC regulation.

In one Colorado prosecution, the defendant pled guilty to 15 misdemeanor violations of the FHSA and PPPA. The defendant sold poisonous chemicals used in solar power systems. He distributed them in recycled food containers lacking child-resistant closures and required warning labels. This led to one death, and thereafter the defendant continued shipping products in unlawful packaging. He was sentenced in 1998 to over 23 months' incarceration for these misdemeanor violations. In another case, CPB prosecuted a manufacturer of unsafe baby pacifiers and rattles. The case led to a plea agreement providing for the maximum possible criminal fines under the FHSA. See United States of America v. Luv N' Care International, Inc. et al., 897 F. Supp. 941 (W.D. La. 1995) (relating to the disposition of pretrial motions).

2. Suit for Civil Penalties

Knowing violations of CPSC-administered statutes may also be sanctioned through the assessment of civil penalties. 15 U.S.C. § 2069 (CPSA), 15 U.S.C. § 1194(e) (FFA), 15 U.S.C. § 1264(c) (FHSA). Determination of appropriate penalty amounts is guided by criteria specified in the statutes. The statutes also impose limits on the amounts that may be recovered for individual violations and for related series of violations. The ceilings allow for assessment of penalties for a related series of violations in excess of $1 million, depending on the number of violative products involved.

In 1996, after extensive civil discovery, CPB settled companion suits against a major manufacturer of juvenile products by accepting a civil penalty of $725,000. United States v. Cosco, Inc., Nos. IP-95-1648 and IP-95-1649 (S.D. Ind., filed December 11, 1995). In the suits, CPB contended that Cosco, Inc., the manufacturer, had knowingly failed to comply with product hazard reporting requirements by withholding from the agency dozens of consumer complaints about entrapment of the head or neck of children in toddler beds and accessory guardrails.

3. Suit for Injunction

Federal district courts are expressly authorized under the leading CPSC-administered statutes to restrain violations of the statute or of CPSC orders. 15 U.S.C. § 2071(a) (CPSA), 15 U.S.C. § 1267 (FHSA). Courts also have authority to grant interim injunctive relief pending the completion of administrative proceedings. 15 U.S.C. § 2064(g) (CPSA), 15 U.S.C. § 1195(a) (FFA). CPB may seek orders of injunction either as part of a civil suit also seeking civil penalties, or independently. United States v. Focht, 882 F.2d 55 (3d Cir. 1989), is an example of the type of involved litigation that may ensue if the CPSC encounters resistance in trying to obtain injunctive relief.

4. In rem Seizure Actions

CPSC-administered statutes also provide for the removal of violative goods from the market through in rem seizure actions. 15 U.S.C. § 2071(b) (CPSA), 15 U.S.C. § 1195(b) (FFA), 15 U.S.C. § 1265 (FHSA).

5. Enforcement Assistance

Resort to the courts may occasionally be necessary to vindicate the CPSC's statutory authority to conduct inspections, issue administrative subpoenas, and the like. In re Establishment Inspection of Skil Corporation, 846 F.2d 1127 (7th Cir. 1988), illustrates the kind of court intervention that CPB may pursue on the CPSC's behalf.

6. Defensive Litigation

CPB represents the CPSC in federal court when aggrieved parties seek to invalidate its actions, or to compel action contrary to the CPSC's intended course. Most commonly, challenges are raised to labeling or performance requirements that the CPSC may promulgate under the statutes it administers. O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm'n., 92 F.3d 940 (9th Cir. 1996), is representative of CPB's defense of the CPSC in such a context.

Footnotes:

(2): Certain categories of products -- including tobacco, pesticides, motor vehicles, and products subject to FDA jurisdiction -- are expressly exempt from regulation under the CPSA. See 15 U.S.C. § 2052(a)(1).

(3): By regulation, the CPSC has made the finding necessary to confirm that the reporting requirements of 15 U.S.C. § 2064(b) apply to products within the ambit of the FFA, the FHSA, and the PPPA. 16 C.F.R. § 1115.2(d).

(4): The CPSC might otherwise gather such information through independent investigation, or pursuant to 15 U.S.C. § 2084, which requires the manufacturer of a consumer product to report information about products liability litigation in defined circumstances.

(5): As does the CPSA, the FHSA expressly exempts certain categories of goods from regulation. 15 U.S.C. § 1261(f)(2) and (f)(3).

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Updated October 20, 2014

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