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.

This morning at the CPSC’s public hearing Commissioner Joe Mohorovic announced that he would be resigning from his position as a Commissioner, effective Friday, October 20th. Mohorovic announced that he would be joining the law firm Dentons.

While Acting Chairman Buerkle remains at the helm of the agency, Mohorovic’s absence will mean an unprecedented Democratic 3-1 majority at the Commission with a Minority Chairman. While Mohorovic’s resignation allows President Trump to nominate a third CPSC Commissioner in as many months, it likely will take months to get all three nominees confirmed by the Senate. Continue Reading Breaking: Republican Commissioner Mohorovic Departing the CPSC; Acting Chairman Buerkle Now Sole Republican in 3-1 Democratic Majority

In the wake of two tragic amusement park ride accidents in Kansas and Tennessee, and the ongoing political debate in America over gun safety issues, we felt it timely to help answer a question that continues to be asked in the media: does the U.S. Consumer Product Safety Commission (CPSC) have the authority to address the safety of amusement park rides and guns?

amusement-park-guns-cpscAmusement Park Rides.  Every time there is a tragedy on a ride at an amusement park, the nation turns its attention and scrutiny on the CPSC as the nation’s safe products regulator.  However, and crucially, the CPSC does not have jurisdiction over the safety of “fixed site” amusement park rides.  In 1981, the Congress stripped the CPSC of its jurisdiction over these rides through an amendment to the Consumer Product Safety Act (CPSA).  As a result, rides that are “permanently fixed to a site” (such as the ones at the Kansas and Tennessee parks) are subject to voluntary standards written by the ASTM F-24 Committee on Amusement Rides and Devices and state and local regulations.

The CPSC does have jurisdiction over “mobile” amusement rides (those transported from location to location).  The agency also acts as a clearinghouse for safety information on ride incidents identified by Commission investigators and state and local ride officials.  The following 2012 CPSC Directory of State Amusement Ride Safety Officials provides a helpful introductory overview of the CPSC’s activities with respect to amusement park rides and a directly of the relevant state and local officials dedicated to ride safety.

Read our previous post about this jurisdictional issue here.

Gun Safety.  Like fixed amusement park rides, firearms and ammunition are excluded from the definition of a “consumer product” in the CPSA.  As a result, the CPSC does not regulate the safety of guns, shells and cartridges (the Bureau of Alcohol, Tobacco, and Firearms does).

guns-amusement-park-cpscNote: CPSC Commissioner Marietta Robinson recently issued a thoughtful perspective describing how she believes the CPSC can make guns safer and help bring down the number of accidental incidents involving firearms.  According to Robinson, “guns should be defined as the consumer products they are so that we may do our job of protecting the American consumer.”

Despite its lack of jurisdiction to regulate the safety of guns and ammunition at present, the CPSC does have authority to regulate the safety of some products and accessories related to gun use.  For example, the CPSC has asserted its jurisdiction over separate firearm trigger locking devices.  Additionally, the CPSC has recalled previously gun storage boxes, handgun vaults, and gun holsters, thus all squarely falling within the regulatory authority of the agency.  In fact, as recently as 2013, the White House requested the CPSC to “review and enhance as warranted safety standards for gun locks and safes” as a measure to improve gun safety.

Without a further act of Congress, the CPSC’s activities with respect to fixed amusement park rides and gun safety will not likely change.

 

Products like e-cigarettes and other electronic nicotine delivery systems (ENDS) have been under intense scrutiny in recent years from public health officials, legislators at all levels of government, and many other interested parties, including dozens of plaintiffs in lawsuits stemming from battery explosions and other injuries.  Newly enacted Federal requirements for ENDS and their components and parts show that such scrutiny sometimes leads to legislative or administrative actions.  Indeed, Summer 2016 could down in infamy for manufacturers, distributors, and retailers of this category of consumer products due to its confluence of new regulations from two major Federal agencies – CPSC and FDA.

We previously reported on the  Child Nicotine Poisoning Prevention Act of 2015, introduced last year by Senator Bill Nelson (D-Fla.) and signed into law in January.  It requires liquid nicotine to be packaged in accordance with the Poison Prevention Packaging Act and CPSC’s standards child-resistant packaging and containers (children are those under age five).   Continue Reading E-Cigarette Makers Contending with New CPSC and FDA Regulations

CPSC Article Law 360 copy[This article originally appeared on Law360 on August 7, 2015 and updates our prior post on this CPSC corrective action]

On July 22, 2015, the U.S. Consumer Product Safety Commission and major furniture company IKEA jointly announced a “repair program” to address the serious and complex hazard of furniture tip-over posed by 27 million chests and dressers sold by the company. The repair program offers free wall anchoring repair kits so consumers can secure the chests and dressers to the wall to reduce the likelihood of a furniture tip-over incident.

If you were not looking for it, then you could have easily missed that the announcement did not contain the word “recall.” The corrective action is also not included in CPSC’s recall announcement list and is not listed as a recall on agency’s saferproducts.gov public database.

So why is this significant? Continue Reading CPSC Major ‘Repair Program’ Is Not Labeled A ‘Recall’

Ikea Product IssueYesterday the CPSC and major furniture company IKEA jointly announced a “repair program” to address the serious and complex hazard of furniture tip over posed by 27 million chests and dressers sold by the company. The repair program offers free wall anchoring repair kits so consumers can secure the chests and dressers to the wall to reduce the likelihood of a tip-over incident (more background on furniture tip over and wall-anchoring here).

If you weren’t looking for it, then you could have easily missed that the announcement did not contain the word “recall.” Nor was it included in the CPSC’s recall announcement list (though it is currently listed as a “recall” on saferproducts.gov).

So why is this significant? Continue Reading Shifting CPSC Recall Landscape? Agency Announces Major “Repair Program” that is not Labeled a “Recall”

Commissioner of the Consumer Product Safety CommissionYesterday evening, Senate Majority Leader Harry Reid (D-NV) filed cloture on the re-nomination of Robert Adler to be a Commissioner of the Consumer Product Safety Commission (CPSC).  If cloture is invoked—meaning three-fifths of the full Senate, or 60 votes, supports the attempt for cloture (assuming the “nuclear option” is not used)—the Senate will proceed to vote on the Adler nomination on or about Tuesday, December 2.  The nominee is then confirmed by a majority vote.  It is worth noting that the invocation of cloture and confirmation of Commissioner Adler is not a given in the current post-election political climate and after the President’s speech on immigration reform last night.  As our readers will recall from a previous blog post, while the Senate Commerce, Science and Transportation Committee voted Commissioner Adler’s nomination out of committee in July, seven Republican Senators reportedly voted no. Continue Reading Cloture Filed on Adler Nomination; Burgess Named Subcommittee Chairman

Consumer product safety testingAt their April Senate confirmation hearing, both incoming CPSC Chairman Elliot Kaye and Commissioner Joe Mohorovic pledged to Senator John Thune (R-SD) to submit plans for reducing third party testing burdens within 60 days of confirmation. Rather than send separate plans, Kaye and Mohorovic submitted a joint letter to Senator Thune recently made public on the website for the U.S. Senate Committee on Commerce, Science, and Transportation.

The letter outlines three areas of focus for the agency to reduce testing burdens: Continue Reading CPSC Focusing on Three Areas for Reduction of CPSIA Testing Burdens