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U.S. House to Discuss CPSC Issues, including Fast Track, Furniture Flammability, Crib Bumpers, and Infant Sleepers

The U.S. House Consumer Protection & Commerce Subcommittee will hold a legislative markup session on Thursday for several bills related to the U.S. Consumer Product Safety Commission (CPSC). This session follows the subcommittee’s April CPSC oversight hearing, which focused on the big picture, asking whether or not the CPSC is fulfilling its mission.

The markup will likely be different, as the discussion will center on smaller issues where consensus – or at least negotiated acceptance – is more attainable. For example, the agenda will likely include federal adoption of California’s Technical Bulletin (TB) 117-2013 furniture flammability standard, which has support among many stakeholders, including both furniture industry and consumer advocates. The subcommittee will likely save thornier issues like the intense debate about the agency’s information-disclosure procedures for another day.

Another controversial topic that the subcommittee is unlikely to discuss Thursday – but that will be in the background – is the procedure the CPSC generally must use to issue a mandatory product standard, found in Section 9 of the Consumer Product Safety Act (CPSA). Among other requirements, Section 9 bars the CPSC from issuing a rule unless the agency expressly finds that

  • The rule’s benefits bear a reasonable relationship to its costs

  • The rule represents the least burdensome option

  • No existing voluntary standard would adequately address the relevant hazard

Section 9 requires more of the CPSC than standard Administrative Procedure Act (APA) rulemaking, which sets only process requirements (notice and comment) and not substantive thresholds for rulemaking authority.

Consumer advocates – and some commissioners – have long argued that Section 9 slows or even prevents good rules from being adopted. Despite this opposition, changes to Section 9 are not likely at Thursday’s markup. Still, several of the bills the subcommittee is likely to consider would require the CPSC to issue rules using APA procedures, not Section 9. If exceptions to Section 9 become the rule, Congress may repeal the provision, which could increase the pace of rulemaking and force stakeholders to pay closer attention to CPSC rulemakings.

The subcommittee is likely to discuss one broader industry concern: the Fast Track voluntary recall program. This program is designed to expedite recalls by forgoing formal CPSC review of the potential hazard. It also avoids the CPSC’s creating a document that declares a company’s product to be hazardous, and it spares the agency the resources that a formal evaluation requires.

But many have complained that “Fast” is a misnomer, as some recalls take months to announce. The problem is that the CPSA gives the agency shared responsibility for recall adequacy, as the statute envisions companies and agency staff collaborating to identify hazards and develop remedies. Understandably, CPSC staff want to evaluate each recall thoroughly before they risk their reputations by approving it. The subcommittee will likely try to resolve this tension by codifying a Fast Track program that positions the CPSC as helping a recalling company spread the word about a recall, rather than sharing responsibility for it.

Though the agenda is still being developed, it will likely include the following issues:

Topic Bill Sponsor Summary
Dresser Tip-over HR 2211 (STURDY Act) Schakowsky (D-IL) Directs the CPSC to mandate stability standard
Furniture Flammability HR 2647 (SOFFA) Matsui (D-CA) Adopts California TB-117-2013 standard
Fuel Container Fires HR 806 Thompson (D-CA) Directs the CPSC to require flame arresters on gas cans
Carbon Monoxide (CO) HR 1618 Kuster (D-NH) Creates grant program for CO hazard education
Infant Inclined Sleepers HR 3172 Cardenas (D-CA) Directs the CPSC to ban infant inclined sleepers
Crib Bumpers HR 3170 Schakowsky (D-IL) Directs the CPSC to ban at least some crib bumpers
Fast Track Recalls HR 3169 Rodgers (R-WA) Codifies the CPSC’s Fast Track recall program

The subcommittee’s work on the CPSC will continue beyond this markup, and there will likely be a push for more significant overhaul later this year or early next.

© 2019 Schiff Hardin LLP

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About this Author

Mike Gentine, Schiff Hardin, Product liability lawyer
Counsel

With experience spanning federal government, private practice, and in-house roles, Mike advises clients on legal and regulatory matters particularly in the area of consumer goods and product safety.

Mike has held multiple positions at the U.S. Consumer Product Safety Commission (CPSC). He served as senior counsel for the Office of CPSC Commissioner Joseph P. Mohorovic from 2014-2017, where he advised on various policy, enforcement, and ethics issues. He led several efforts to reform rules and regulations, including an initiative to reduce the paperwork burden on CPSC-regulated...

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