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CPSC Presses Onward with Equity Action Plan

In late spring, the Consumer Product Safety Commission (CPSC) held a roundtable for interested stakeholders to discuss the Equity Action Plan it issued on January 20, 2022.1 In hosting the public forum, the CPSC sought to “give the public an opportunity to discuss steps the agency can take to better address existing racial disparities in injury rates and deaths caused by certain consumer products."2 The CPSC used the roundtable to solicit first impressions and feedback on its Equity Action Plan, discussing how to reach underserved communities, communication and education strategies, and potential policy changes with interested parties.

Industry participants should pay close attention as the CPSC’s — and other federal agencies’ — equity policies and initiatives take shape, especially considering that an area of focus is targeted enforcement actions and investigations. Any actions these agencies take to implement their equity action plans are likely to affect how manufacturers, distributors, and retailers interact with consumers in underserved populations and might give rise to new litigation risks.

Executive Order 13985

On January 20, 2021, the president signed Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.3 The executive order tasks the federal government with pursuing “a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality."4

To achieve this comprehensive approach, the executive order empowers the White House Domestic Policy Council to coordinate efforts across the federal government and to ensure such efforts are made in partnership with the directors of the National Security Council and the National Economic Council.5 The executive order commissions the creation of an Interagency Working Group on Equitable Data to gather the data necessary to measure and advance equity.6 The executive order also instructs the director of the Office of Management and Budget to work with heads of agencies to “study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals."7 Such study may include the implementation of pilot programs to test model assessment tools.8

The CPSC’s Equity Action Plan

In response to Executive Order 13985, the CPSC’s Equity Action Plan summarizes its early equity-related accomplishments and identifies four barriers to achieving more equitable public health outcomes from a product safety perspective: 1) outreach to address higher injury rates among Black Americans, 2) improving data quality, 3) standards and research, and 4) targeted enforcement and investigations.

The plan’s executive summary notes that agency injury statistics already show racial disparities in injury and death rates caused by carbon monoxide poisoning, residential fires, and pool drownings among minority families.9 Thus, the plan outlines agency efforts to identify further disparities with respect to other hazards and to implement agency-wide training, public education, data improvements, staff changes, standards development, research projects, and — most immediately important for industry — targeted enforcement and investigation actions.10

As to targeted enforcement and investigations, the plan describes the CPSC’s intention to use zip code census data to surveil targeted areas, collecting samples of potentially hazardous consumer products and removing banned or recalled products.11 The CPSC also notes efforts to target “low-value, high-risk” imported products that are likely to be sold in areas with underserved populations.12 The stated goal of such actions is to remove noncompliant and illegal products from the market, thereby reducing injuries within at-risk populations.13

The CPSC is one of over 90 federal agencies that submitted equity action plans in response to Executive Order 13985.14 Other independent agencies that voluntarily participated include the Federal Communications Commission, Federal Trade Commission, National Transportation Safety Board, and Occupational Safety and Heath Review Commission.15 Similar to the CPSC, these agency plans summarize equity-related accomplishments and identify three-to-five barriers to equitable outcomes, proposing action items to address those barriers. Many of these plans propose targeted enforcement actions and investigations.

Equity Action Plans Will Have an Impact

Interagency collaboration and coordination are likely to increase as agencies like the CPSC work to implement their respective action plans. With multiple agencies focused on the same or similar goals, there could be several regulators knocking on the same doors. With targeted enforcement actions and investigations also comes the potential for litigation.

At a minimum, industry participants should know the agencies with purview over the various aspects of their business. To stay better informed, industry participants should pay attention and participate in the conversations those agencies orchestrate and understand the practical implications of the equity initiatives those agencies ultimately decide to undertake based on those conversations. For example, while the CPSC’s May 25th roundtable largely focused on communication and education strategies for underserved communities, participant Charon McNabb — co-founder of the National Carbon Monoxide Awareness Association — expressed that the onus for failing consumer products, specifically home appliances, should fall on those who design, manufacture, and sell the products, not on consumers. Other participants echoed this sentiment and encouraged the agency to incentivize and monitor the modernization of safety technologies. Thus, while the CPSC’s Equity Action Plan is predictably going to result in changes to communication and education strategies, it may also produce results that the unwary never expected.


FOOTNOTES

1 CPSC Equity Action Plan, https://www.cpsc.gov/About-CPSC/CPSC-Equity-Action-Plan.

2 “CPSC Announces Stakeholder Roundtable on May 25, 2022 to Hear from Public on New Equity Action Plan; Joins Over Ninety Federal Agencies Releasing Equity Action Plans (Apr. 14, 2022), https://www.cpsc.gov/Newsroom/News-Releases/2022/CPSC-Announces-Stakeholder-Roundtable-on-May-25-2022-to-Hear-from-Public-on-New-Equity-Action-Plan-Joins-Over-Ninety-Federal-Agencies-Releasing-Equity-Action-Plans.

3 E.O. 13985 (Jan. 20, 2021), https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government.

4 Id. § 1.

5 Id. § 3.

6 Id. § 9.

7 Id. § 4.

8 Id.

9 CPSC Equity Action Plan at 1, https://www.cpsc.gov/About-CPSC/CPSC-Equity-Action-Plan.

10 Id.

11 Id. at 10-12.

12 Id.

13 Id.

14 General Services Administration & the Office of Management and Budget, “Advancing an Equitable Government” (last visited May 1, 2022), https://www.performance.gov/equity/#action-plans.

15 Id.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 203
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About this Author

Erik K. Swanholt, Foley Lardner, litigation attorney
Partner

Erik Swanholt is a partner and litigation attorney with Foley & Lardner LLP. Mr. Swanholt has substantial experience in a broad range of litigation matters, with an emphasis on product liability, pharmaceutical defects, complex commercial and consumer class action litigation, toxic torts, as well as cybersecurity, privacy, and data protection. He has defended individual and class action product liability and toxic tort claims in a variety of industries, including consumer products, fashion, pharmaceuticals, off-road vehicles, industrial safety equipment, asbestos,...

213.972.4614
Kristin Sikora Finance Attorney Milwaukee, WI Foley&Lardner LLP

Kristin McGaver Sikora is an associate with Foley & Lardner LLP. She is a member of the firm’s Business Litigation & Dispute Resolution Practice, Consumer Law, Finance & Class Action Group, and the Manufacturing Sector.

Consumer Product Safety Practice - Kristin regularly advises and represents...

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