The last weeks of March brought us two interesting and seemingly contradictory opinions that show the many tools the U.S. Consumer Product Safety Commission has at its disposal to enforce its own regulations. These orders also demonstrate that CPSC will not hesitate to deploy resources and engage in simultaneous avenues of enforcement when it views violations as particularly egregious. In the ongoing saga of high-powered, small, rare earth magnet sets (SREMS), CPSC showed its resolve by pursuing an offensive enforcement campaign in both litigation and administrative forums.
In most instances, CPSC threatens administrative action or litigation to leverage consumer products distributors and manufacturers into corrective action plans. CPSC will, at times, act on its threats, but rarely has it had occasion to use this type of multifaceted approach to enforcement. As one would expect, CPSC most commonly enforces its regulations against products that present a danger to consumers, but a product that may pose a risk to consumers can often be made safer with proper warnings. The SREMS saga demonstrates that, even if proper warnings can mitigate a safety issue such that a product does not legally pose a substantial product hazard, CPSC may still be able to force companies into compliance with its demands if it believes the product is dangerous.
Originally published in Law360 on April 13, 2016.
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