The $1.1 trillion 2016 omnibus spending bill passed by Congress and signed into law by President Obama last week includes many legislative provisions, often called policy “riders,” that  will affect a wide array of issues ranging from repealing food labeling laws to allowing children to sled on Capitol Hill. The major policy rider included in the omnibus bill relating to CPSC activities essentially throws a monkey wrench into the agency’s ongoing rulemaking process for Recreational Off-Highway Vehicles (ROVs).

The CPSC planned to issue a final rule for ROVs in 2016 that would address vehicle stability, handling, occupant protection, and other safety concerns. The ROV industry opposed the CPSC’s rulemaking effort based on data gaps it believed belied the proposed rule and the desire for the safety concerns to be addressed through the voluntary standards process.

After lobbying from the ROV industry, Congress included a policy rider (a modification of previously introduced legislation called the RIDE Act) as a part of the 2016 omnibus bill. The statutory language included in the rider prohibits CPSC from finalizing its ROVs rulemaking until the National Academy of Sciences, the National Highway Traffic Safety Administration (NHTSA), and the Department of Defense complete a study to determine: Continue Reading Congress Erects Hurdle for CPSC’s Recreational Off-Highway Vehicle Rulemaking in 2016 Omnibus Bill

HoverboardOver recent weeks, national media outlets have reported extensively on multiple claims from consumers that hoverboards—self-balancing scooters growing immensely in popularity, particularly over the holiday period—have caught fire.  Much of the focus of these claims has been related to the overheating of the hoverboards’ lithium ion batteries.  In the wake of these reports, major airlines are now starting to prohibit hoverboards from being transported on flights and some retailers, such as Amazon, have stopped selling certain models of the product online.

In response to the ever-increasing publicity and concern expressed over the product, U.S. Consumer Product Safety Commission (CPSC) Chairman Elliot Kaye released a statement about hoverboards, in which he stated, in part, the following: Continue Reading The Future of Hoverboards: Federal Safety Standard or Voluntary Safety Standard?

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

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

Written by: Helen Kim & Chuck Samuels

Judge Claude M. Hilton of the Eastern District of Virginia recently issued a Memorandum Opinion following up on his June 27, 2014 order (on which we previously wrote here and here) dismissing the complaint filed against the power tool industry by SawStop, LLC.

To recap, according to the February 2014 complaint, in 2000, Stephen Gass, inventor of “SawStop” and a patent attorney, began licensing negotiations with several companies now named as defendants in the lawsuit. As a result, the companies allegedly held a vote on how to respond to SawStop and shortly thereafter ended their individual licensing negotiations with Gass. The complaint also alleges the companies conspired to alter voluntary standards to prevent SawStop technology from becoming an industry standard.

In his opinion dismissing SawStop’s antitrust claims, Judge Hilton wrote: Continue Reading SawStop Dismissal Explained: Opinion Crosscutting SawStop’s Antitrust Lawsuit Released

Written by: Chuck Samuels and Helen Kim

In most respects, trade associations are pro-competitive organizations: they join together competitors to advance worthwhile goals and to learn from one another. Their societal value is why they are recognized as non-profits. Many trade association activities, in particular safety standard-setting efforts, provide the public with valuable benefits. But these cooperative activities can open trade associations and their members to antitrust liability as well as potential tort liability.

Although it could very well be dismissed, the recent complaint filed against the power tool industry by SawStop LLC reminds us of the critical need for associations to develop sound legal policies and procedures to avoid—or successfully defend against—antitrust lawsuits, whether from government or private actors.

Continue Reading Buzzsaw or SawStop: Are You Prepared to Avoid Antitrust Liability in the Product Safety Arena?

CPSC’s November 20, 2013 Commission hearing started with an emotional farewell from Chairman Inez Tenenbaum and high praise from her fellow Commissioners for her dedication to consumers and the agency. I joined the Chairman’s staff at the start of her tenure at CPSC and can echo the Commissioners in their recognition of the great amount of energy, sacrifice, and commitment she put into her service throughout her time leading the agency. She was given a standing ovation by those in attendance prior to chairing her final Commission meeting. The purpose of the meeting was for the Commission to vote on the agency’s fiscal year 2014 Operating Plan. The Commission voted unanimously to approve an amended operating plan that incorporated amendments from three of the Commissioners.

The first amendment, proposed by Chairman Tenenbaum, directed staff to move forward with additional work on the agency’s testing burden reduction efforts already underway. This past April, the Commission published a notice in the Federal Register requesting information from stakeholders on additional materials the agency could “determine” will always meet the requirements for lead content, phthalate content, and the solubility of eight heavy metals listed in ASTM F963. The benefit to companies of an agency “determination” is no longer being required to test any of materials that the agency believes will always comply with CPSC requirements. The agency first approved a set of determinations for the lead content requirements in 2009.

Continue Reading CPSC Adds Burden Reduction Work, ATV Study, and UL 250 Voluntary Standard Involvement to 2014 Operating Plan at Chairman Tenenbaum’s Final Commission Hearing

We recently wrote about CPSC’s proposed amendment to its current limitations on CPSC staff’s participation in voluntary standards organizations. Under the proposed amendment, staff would be allowed to cast votes on voluntary standards and hold leadership positions on voluntary standard committees.  The amendment is based on the recommendations from a 2012 GAO Report.

The Commission voted to approve the proposed amendment but also included a few small changes, one of which was to shorten the comment period from 60 days to 30 days–meaning comments are now due to the agency by October 21, 2013. The indication here is that the agency is in a hurry to finalize this rule or does not see much need for comment and may turn around a final version in fairly short order depending on how many comments are received.

Continue Reading Update: CPSC Shortens Comment Period on Voluntary Standards Amendment

Last week, CPSC staff proposed an amendment to the agency’s current voluntary standards rule that would allow Commission employees to participate as voting members and to accept leadership positions in voluntary standard development groups. The new rule would amend 16 CFR 1031 to remove the current prohibitions on this type of CPSC staff involvement in voluntary standards activities and instead allow the Office of the Executive Director to approve any such staff participation on a case-by-case basis. The proposed amendment follows a 2012 GAO report that encouraged the CPSC to allow staff to take a more active role in developing voluntary standards, including voting on standards and taking leadership roles.

Continue Reading CPSC Voting Soon on Changes to Its Role in Voluntary Standards Activities