Photo of Chuck Samuels

Chuck Samuels is a Member in the firm and the head of Mintz Levin’s Consumer Product Safety Practice. Based in the firm’s DC office, he is engaged in a federal and international regulatory and legislative practice, encompassing work before the US Consumer Product Safety Commission; Departments of State, Health and Human Services, Energy, and Treasury; the US Trade Representative; the Environmental Protection Agency; the Federal Trade Commission; the IRS; and other federal and state agencies. He also has extensive experience dealing with Canada, the European Commission, and international bodies.

With Congress back in session, on January 8th President Trump was swift to re-nominate Acting Chairman Ann Marie Buerkle to be the permanent Chairman of the CPSC, along with a nomination for a second term as a Commissioner.  President Trump also re-nominated Dana Baiocco to be a Commissioner.

As we previously wrote, Chairman Buerkle was nominated by President Trump in in July of last year. After going through a Senate confirmation hearing in September that was contentious at times, Buerkle was approved by the Senate Committee on Commerce, Science, and Transportation for confirmation by the full Senate. Similarly, Ms. Baiocco was also awaiting full Senate confirmation after she was approved by the committee in November.

Both Buerkle and Baiocco were not confirmed by the Senate in December, at which time their nominations were returned to the President under Senate Standing Rule 31 along with almost 100 other nominees. Rule 31 provides that when a nominee is neither confirmed nor rejected prior to the end of the Congressional session, the nomination is returned to the President, and will not be reconsidered by the Senate unless they are re-nominated. Most often at the end of a calendar year, this rule is waived by the Senate. However, waiver of the rule requires unanimous consent, which was not provided for 100 nominees that were pending before the full Senate for confirmation in December.

Both Buerkle and Baiocco must again be approved by the committee. They will then again await full Senate confirmation.

We have had a huge election result, perhaps the most significant in our lifetime, potentially even exceeding what was called the Reagan Revolution.  It is critical, particularly for anybody from Washington DC, to have a great deal of modesty and humility in prognosticating the future under the Trump administration even in the CPSC world.  We assume, but really do not know, what the attitudes of the new Trump administration and the Republican-led Congress will be in our parochial, but critical, little product safety world.

We can understandably assume that within a year or less there will be a new CPSC Chairman and a new Republican majority on the Commission. We can also assume that this will change the direction and substance of many regulatory initiatives and maybe even some of the approaches to compliance and civil penalties.
Though we may be unsure about the future, I can say confidently that what we badly need from the outgoing Democratic majority and the yet to be defined incoming Republican majority is some perspective, restraint, and Aristotelian moderation.  I hope that the current majority commissioners will not take advantage of their present but fleeting power to push through ill-conceived regulatory or compliance and enforcement initiatives.  Such actions will be bitterly opposed and this Commission’s reign will end on a sour note and be subject to regulatory and congressional reversal.

vote-pins-CPSC-Post-Election On the other hand, all five of the current commissioners swore to uphold the Constitution and the laws of the United States.  Those laws absolutely include CPSIA and other governing statutes of the CPSC.  So the Commissioners need to, and I am confident that they will, continue to do their jobs.

There are some very important initiatives which will enhance safety and not be politically controversial.  For example, I welcome Chairman Kaye’s interest in a comprehensive and interagency review of the lithium ion battery problem.  We do not need to have any more spectacular safety problems to recognize that even without hoverboards and cell phones catching on fire, the increasing use and push-the-envelope application of products which use lithium ion batteries is causing lots of problems.

Indeed, the situation with respect to lithium ion batteries is even worse for smaller companies which don’t have vertical integration, don’t design batteries or battery packs, don’t have much control over their vendors, and basically have to take solutions off the shelf.  Everybody in the product safety community will benefit from figuring out what combination of standards, practices, and designs we need to protect the public and thousands of businesses.

Nevertheless, the business community and the future leaders of the CPSC need to show some restraint as well.  It would be a mistake to take advantage of the present politics to fundamentally reverse the key elements of the Consumer Product Safety Act, to strangle the agency with inadequate funding, or tie the agency up in knots so it cannot adequately function.  This is a formula for exponentially increasing an already problematic patchwork of state and local government regulation of consumer products.  It would also potentially allow for cheap, unsafe imports to flood our country and undermine significant product safety investments already made by U.S. companies.

This does not mean that nothing should be done or that the statute shouldn’t be revisited in some regards.  There are plenty of ways the business community can achieve meaningful regulatory improvements and burden relief that would not cause larger issues.

I do not support crippling the CPSC.  No members of industry that I have spoken with support such drastic action either.  It will not be in the long term benefit of the business community and it leaves American consumers, our families and friends, less protected.

I’ve been involved in the product safety world for 30-plus years and have seen the political pendulum swing on multiple occasions. One constant is that most reasonable, informed people, whether business executives or consumer advocates, agree that a well-functioning CPSC is a critical part of a vibrant economy for consumer products in this country.

 

It is with great pleasure that I announce that my colleague and friend Matt Howsare has been elected to the membership of Mintz Levin effective April 1, 2016.

In the 2.8 (Matt is very detail oriented) years that Matt has been at Mintz Levin, Matt has proven to be a superb, creative and dedicated lawyer to a range of clients.  As co-chair of our consumer product regulatory practice, he has zealously advocated for a range of clients large and small, retailers, manufacturers, importers, and testing labs, while never losing that Southern courtly, mannerly style (in contrast to my more brusque, get-to-the-point Northerner style). His transition from one of the youngest chiefs of staff for any federal agency to a great asset for the regulated community has been seamless. Those who have received his 2 AM emails will be delighted to know that he has finally met his match in his lovely new daughter whose hours are even more extreme (but she will grow out of it).

The firm and I could not be more delighted about Matt’s elevation to partner, and I look forward to many more productive years together. It is a relatively small CPSC community, and I know my colleagues in the advocacy community, and at the Commission, companies and law firms join me in congratulating Matt and his family on this well-deserved career milestone.

On March 11, Health Canada announced that it had assessed administrative monetary penalties under the Canada Consumer Product Safety Act (CCPSA) against company Orange TKO Industries (Orange TKO or the Company) of Calgary.  According to Health Canada’s press release, Orange TKO failed to comply with an order of the Minister of Health to recall an all-purpose cleaner that did not meet labelling and child-resistant packaging requirements for consumer chemical products.  This news is highly noteworthy as it is the first civil penalty known to us levied by Health Canada pursuant to Section 49 of the CCPSA.  Although Health Canada, unlike the CPSC, does not have the statutory authority to assess civil penalties for late-reporting violations, it does have the ability to penalize companies for failing to comply with other provisions of the CCPSA, including failing to comply with the Ministry’s orders.

Continue Reading Health Canada Assesses Monetary Penalties against Company under Canadian Product Safety Act for First Time

adult apparel regulation CPSCEarlier today, the CPSC unanimously agreed to publish in the Federal Register a new enforcement policy proposed by Commissioner Joe Mohorovic regarding the certification of certain adult wearing apparel (click here for policy-related materials and statement prepared by Commissioner Mohorovic).  Specifically, the CPSC will not require manufacturers and importers of adult apparel made of fabrics exempt from testing under the Flammable Fabrics Act (FFA) and subject to no other CPSC regulation to furnish a general conformity certificate (GCC) stating that such apparel is exempt from testing.  This is a meaningful, common sense policy that will hopefully precede more agency efforts to find ways to reduce regulatory burden without sacrificing or otherwise impacting product safety.

Commenting on the new policy, Commissioner Mohorovic stated: Continue Reading CPSC Adopts Mohorovic’s $250 Million Burden Relief Proposal for Adult Apparel

consumer product toy safetyOn April 7, Renee Dudley of Bloomberg News authored an article entitled “The Cheap Toys You Buy Your Kid Are Rarely Inspected.”  The article has been republished by major news publications and gained some nationwide attention.  Ms. Dudley’s article uses the tragic death of a toddler to argue that the American consumer product safety system is flawed because not every product is inspected by the United States government.  This is an incorrect conclusion based on a failure to garner and evaluate relevant facts about the overall state of consumer product safety in the United States.

Naturally, this story is being disseminated broadly and creates an unfounded fear, particularly in the minds of parents, that their children are in constant and imminent peril from common consumer products, particularly children’s toys.  This is, in fact, not the case.  The consumer products “economy” is safer and more protective than ever.  The CPSC itself recently reported: Continue Reading Bloomberg Product Safety Article Misses the Mark; U.S. Product Safety Economy Safer Than Ever

Children's Product Safety Nationwide Insurance Super Bowl Ad

Last Sunday, during the Super Bowl, Nationwide Insurance ran a controversial commercial entitled “Make Safe Happen.”  The advertisement features a young child experiencing memorable moments growing up.  However, viewers are informed that the child would not actually experience these moments because he “died from an accident.”  The commercial then cuts to a series of [common] household accidents, all involving consumer products.   The commercial has been panned by many in the media as the “worst Super Bowl commercial in history.”

We could not disagree with these critics more.  Although the commercial was certainly a “downer” and pulled at the heart strings during an otherwise festive event, Nationwide Insurance should be applauded for raising the safety consciousness of the largest viewing audience in television history (114.4 million viewers).  The Super Bowl was the perfect opportunity to run such an impactful piece.  The fact that so many people are talking about the commercial one week later only underscores its value.

Simply put, every scenario in the commercial in which a child has died as a result of an accident in the home is real.  The good news, as the commercial states, is that these accidents are preventable.  CPSC Chairman Elliot Kaye stated today: Continue Reading Nationwide Should be Applauded for Pro-Safety Super Bowl Ad

rare earth magnets consumer product safetyWe do not typically take positions on product specific issues pending before the U.S. Consumer Product Safety Commission (“CPSC”), but the CPSC’s new safety standard for magnet sets demonstrates both why the agency exists and how it can use its regulatory authority to protect consumers. In enacting the safety standard, the agency did not eradicate what are commonly referred to as “rare earth magnets” from the marketplace. Instead, the CPSC set a minimum level of safety for certain types of magnet sets based on the data necessary to take such action under the Consumer Product Safety Act (CPSA), the CPSC’s organic statute.

The practical effect of the CPSC’s action will be to prohibit the sale of magnet sets composed of small but very powerful magnets that have proven both extremely attractive and hazardous to children. Although these types of magnet sets were marketed to adults to manipulate into various shapes for entertainment or stress relief, the individual magnets found their way into the hands, and ultimately, the mouths of children. When accidentally swallowed, the magnets can bond and become trapped within the digestive system in a manner that can cause severe internal damage.

Summarizing the rationale for his vote, Commissioner Mohorovic said in his closing statement at the CPSC’s decisional meeting: Continue Reading CPSC Gets it Right: Unanimously Regulates High-Powered Magnet Sets Through New Safety Standard

Today the Senate Commerce, Science, and Transportation Committee approved three pending nominations for the Consumer Product Safety Commission (CPSC). The Committee approved Elliot Kaye as Chairman and Joe Mohorovic and Bob Adler as Commissioners to the CPSC. Although the Committee approved his nomination, seven Republican Senators reportedly voted no on the reappointment of current Acting Chairman Adler. Those Senators included: Continue Reading CPSC Nominees Kaye, Mohorovic, and Adler Sent to Senate Floor for Confirmation Vote

On May 9, 2014, the CPSC and the maker of Buckyballs and Buckycubes settled the July 2012 administrative case brought by the CPSC alleging that these “rare earth magnets” pose a substantial product hazard.  The settlement agreement includes a voluntary recall of Buckyballs and Buckycubes and a trust to be funded in the amount of $375,000 by Craig Zucker, the Company’s ex-CEO, and controlled by the CPSC to refund consumers. The Commission voted 2-1 to accept the settlement, with Acting Chairman Adler voting against the settlement and Commissioners Buerkle and Robinson voting to approve the settlement.

Buckyballs and Buckycubes are small but extremely powerful magnets that can be formed into different shapes and are used by adults as a game or to relieve stress.

As noted in our earlier post, the CPSC initiated its 2012 administrative complaint against Maxfield and Oberton Holdings LLC after receiving a number of reports of children and teenagers ingesting two or more Buckyballs or Buckycubes and requiring invasive surgery to remove the powerful magnets.  In 2013, the company’s ex-CEO, Mr. Zucker, dissolved the company and subsequently the CPSC named him personally and as an officer of the company.  Although upheld by the administrative law judge, in the “modern era” of the CPSC this is an extraordinary action based on CPSC legal reasoning that arguably could reach thousands of corporate executives.

Continue Reading CPSC Settles Complaint Against Ex-CEO of Buckyballs and Buckycubes