Presidential Election Portends Changes at the Nation’s Leading Product Safety Agency

Brownstein Hyatt Farber Schreck

Brownstein Hyatt Farber Schreck

With the results of Election Day in focus, the transition to a new administration will eventually change the face of the U.S. Consumer Product Safety Commission (CPSC) for years to come. Questions persist about the commission’s direction with a stalled nomination for chairman, some members coming to the end of their terms in the next year or two and questions about the impact of the pandemic on regulatory activity.

Currently, the five-member CPSC is missing a chair. The commission consists of two Democratic commissioners, Elliot Kaye and Robert Adler, and two Republicans, Peter Feldman and Dana Baiocco. The position of chairman (or acting chairman since the Trump election) has been vacant since Commissioner Anne Marie Buerkle, a Republican, left at the end of her one-year holdover period in October 2019. Buerkle was nominated twice in two congresses by President Donald Trump to fill the chairman’s position, but she never received a confirmation vote. Upon her departure, Buerkle voted with the Democrats on the commission to make Commissioner Adler the acting chairman, thus changing control from Republican to Democrat.

Although the president has nominated Dr. Nancy Beck to the vacant chairman position, and she has had her hearing before the U.S. Senate Committee on Commerce, Science and Transportation, her nomination is currently stalled. Democrats in the Senate and at least two Republicans, Sens. Shelley Moore Capito (WV) and Susan Collins (ME), who were each just reelected, have announced their opposition to Dr. Beck’s nomination. The bottom line is that with Senator Majority Leader Mitch McConnell (R-KY) putting priority on confirmation of Trump judicial nominations during the lame-duck session between now and the end of the year, along with the announced opposition to her appointment, Dr. Beck’s nomination is not likely to go forward. That leaves the vacancy open for a nomination by the incoming president. It might be tempting for the Republican-controlled Senate to rush a vote on Dr. Beck to put her into the chairmanship before the change of administrations. However, that chairmanship would be short-lived as, unlike other independent commissions, the president appoints the chairman of the CPSC.

Looking to the future, the two Republicans on the commission are in it for the long term. Commissioner Baiocco’s term goes through October 2024, which means she can serve through 2025 based upon the one-year hold-over provisions of the Consumer Product Safety Act. Feldman’s term ends in October 2026, which means he can serve until 2027. Unless they choose to leave the commission early, the Republican contingent is set through at least 2025. Commissioners seldom leave before the end of their term, although it is not unheard of.

Commissioner Adler’s term ends on Oct. 27, 2021, and he recently announced that he would not seek renomination. Adler served as a staffer from the inception of the CPSC in 1973 through 1984 and as a commissioner since 2009, doing a previous stint as acting chairman in 2013‒2014. So, he has done his time and duty at the CPSC.

The term of Commissioner Kaye, who served as chairman 2014‒2017, ended in October of this year, which means he can hold over until October of 2021. Kaye has indicated that he will hold over though the next year or until he is replaced. His situation is complicated, however, by kidney disease, which has resulted in his placement on the transplant list this year. So, as one of the most ardent champions of the commission, he could be reappointed or could choose to move on, allowing the president to appoint a new commissioner depending on the circumstances.

So we are in for interesting times at the CPSC. Assuming the nomination and confirmation process goes more smoothly than it has in recent years, the agency will eventually be controlled by a 3-2 Democratic majority. Most likely, all three Democrats will be new to the commission with the two currently serving Republican commissioners becoming “veterans.” One would think going forward that a more Democratic-controlled agency would result in a more activist CPSC. However, since Commissioner Adler took the reins as acting chairman in October of 2019, the CPSC has imposed no civil penalties and the rate of recalled products has slowed. Some suggest that COVID-19 has caused this slowdown. And one might think that fewer recalls indicate a safer consumer product market with fewer dangerous products being put in the stream of commerce. But such a conclusion requires a much more complex analysis of what is going on in the market than just the number of recalls. At this point, only time will give us the real answer.

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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