CPSC’s Expanding Role under the Biden Administration

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

During the Trump administration, the number of consumer product safety recalls fell for three years in a row. When Robert Adler became Acting Chair of the U.S. Consumer Product Safety Commission (CPSC) in 2019, he compared his role to that of a caretaker. Now, under the Biden administration, the CPSC is undergoing a shift toward increased regulation and more aggressive enforcement. Acting Chair Adler confirmed the same earlier this year, stating that the Biden administration “clearly views product safety in different terms,” and that he “plan[s] to modify [his] job’s metaphor from caretaker to gardener.”

This shift in thinking is evident in the CPSC’s actions in recent months. Since President Biden’s inauguration, the CPSC has announced 57 product recalls in addition to a $7.95 million civil penalty settlement with Cybex International, Inc. for alleged failure to immediately report a known product safety defect related to its exercise equipment. And on April 17, the CPSC issued an urgent warning to consumers to stop using the Peloton Tread+ exercise machine around small children or pets. The CPSC noted that though its investigation of reported incidents of injury or death related to the machine was still ongoing, it had “found that the public health and safety requires this notice to warn the public quickly of the hazard.”

This warning, emerging from a clash between the CPSC and Peloton (discussed here), is emblematic of a push to expand the CPSC’s ability to publicly disclose perceived safety hazards. On April 22, Congressional Democrats introduced the Sunshine in Product Safety Act with the intention to make it easier for the CPSC to warn the public of potential safety hazards. The Sunshine in Product Safety Act proposes removing provision 6(b) of the Consumer Product Safety Act, which generally requires the CPSC to keep information confidential unless a company has agreed otherwise, or a settlement agreement has been reached.

The shift in the CPSC’s approach under the Biden administration is also evident in Acting Chair Adler’s March 1 public letter to the U.S. House of Representatives Committee on Appropriations, requesting more than double the current $135 million CPSC budget for fiscal year 2022. Acting Chair Adler’s letter sets forth a ten-page plan for “Reinventing CPSC,” with heavy emphasis on expansion to programs and staff, investment in technology and modernization, and commitment to vigorous compliance. His letter concludes that the “proposal . . . is audacious—but it is also necessary,” painting the CPSC as “a tiny agency with an enormous mission that continues to expand along with our increasingly diverse population, marketplace, and technologies.” This request comes on the tail of an unexpected additional $50 million in the CPSC’s fiscal year 2021 budget from the American Rescue Plan Act.

President Biden also will have three future opportunities to directly shape the CPSC’s leadership going forward by filling vacant Commission seats. First, there is a current vacancy on the Commission. Second, though current Commissioner Elliot Kaye’s term expired in October 2020, he continues to hold his seat pursuant to a statutory one-year holdover period and his seat will be open this October. Third, Acting Chair Adler’s term also ends this October, and he has announced that he plans to retire. Soon after President Biden’s election, advocates began pushing for these seats to be filled by “advocates who have worked on behalf of consumers or others who have spent the bulk of their careers in the public interest.” It is expected that President Biden will nominate candidates soon, to be followed by confirmation hearings in the U.S. Senate (where a slim Democratic majority may well confirm President Biden’s nominees).

The recent and ongoing changes involving the CPSC—backed by the Biden administration’s support for policies lobbied for by consumer product safety advocates (like mandatory, rather than voluntary standards) and by a higher budget—spell a more aggressive regulatory and enforcement agenda in the short- and long-term.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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