The Consumer Product Safety Improvement Act, Its Implementation and Its Liability Implications

Article excerpt

ALTHOUGH ENACTED before Election Day, the Consumer Product Safety Improvement Act of 2008 (CPSIA or the Act), (1) may be the first of a series of new legislative initiatives that will strengthen federal regulatory power, increase funding for federal agencies, impose new requirements on businesses, and assist plaintiffs in pursuit of product and toxics liability lawsuits. Because the scope of the CPSIA may be interpreted more broadly than was initially anticipated, defense lawyers should be aware of the many requirements of the Act. This article (1) provides a brief overview of the CPSIA and reviews some of the steps that the Consumer Product Safety Commission (CPSC) has taken already to implement the Act; (2) discusses the potentially broader impacts of provisions which were designed to address children's products; and (3) discusses provisions which affect all consumer products.

I. CPSIA Overview

The CPSIA implements the most sweeping revision of United States consumer product safety laws since 1972, when Congress enacted the original Consumer Product Safety Act (CPSA). (2) The Act expands the regulatory and enforcement powers of the Consumer Product Safety Commission (CPSC or Commission) and imposes new obligations on manufacturers, importers, and retailers of consumer products. Moreover, Congress has curbed CPSC's discretion by enacting specific product standards and setting 42 deadlines for agency action over the next five years.

Congress drafted the CPSIA as a reaction to a number of high-profile product safety recalls, most notably recalls of Chinese-manufactured jewelry and painted toys that contained excessive, and in some cases dangerous, amounts of lead. (3) The Act addresses toys and children's products, and, over a short time period, (1) lowers permissible lead levels in paint; (2) imposes maximum permissible limits for lead in product substrates and components; (3) bans certain uses of six phthalates (plasticizers); and (4) incorporates an ASTM (American Society for Testing and Materials) toy standard as a CPSC rule. Furthermore, the CPSIA adds new requirements governing children's products, including for testing and certification of compliance with regulations, use of tracking labels, and warnings in connection with advertisements.

The CPSIA also imposes additional new requirements affecting all consumer products (not just children's products), including:

* greater CPSC recall authority,

* mandatory recall notice standards,

* broadened reporting requirements,

* adoption of a class-wide product hazard list, and

* creation of a publicly accessible Consumer Product Safety Database identifying harmful products.

The Act also weakens protections designed to prevent public disclosure of confidential business information, allows enhanced State Attorney General enforcement of standards through injunctive relief, increased civil and criminal penalties for violations, requires a GAO (Government Accountability Office) study of formaldehyde, and limits the preemptive effects of consumer protection statutes.

The numerous specific requirements and short deadlines the CPSIA imposed have placed a great burden on the CPSC staff, as well as on the regulated community. Although the CPSIA anticipates increased funding and staffing for the CPSC, Congress has been slow in adopting specific appropriations. (4) In response to the CPSIA mandates, CPSC has engaged in a flurry of activity, including issuance of Office of General Counsel opinions, publication of guidance, accelerated rulemaking, and adoption of interim final rules. (5) CPSC established a new CPSIA website, (6) and provides almost daily e-mail notices of updates. (7)

In recent days, many members of Congress, unhappy with the public reaction to legislation that most of them supported, have introduced a variety of bills to amend the Act, primarily by postponing compliance dates or excepting specific products, such as ATVs, or specific industries, such as thrift stores, from lead limits. …