I believe that it was Albert Einstein who said “What you see depends on where you stand.” The stands taken by senior managers of the CPSC on a number of topics have changed and that leaves those of us who care both about the agency and consumer safety seeing some concerning developments.
A good example is the way in which the agency seeks to impose and assess penalties. At one point (dare I say the “good old days”) civil penalties were assessed after an honest negotiation between lawyers for the agency and the company. Only with the most intransigent company did the negotiation break down so that the agency was forced to refer the case to the Department of Justice for resolution. And in the very rare instances when this happened, it was viewed not as a positive development but as a failure of the process to work well.
Things have changed. Based on comments made by agency lawyers at a meeting in Washington this past week, what was once viewed as a failure now is viewed, if not quite as a positive development, as at least routine SOP. This conclusion is based on several developments. First, look at the Enforcement Guidance recently published by the CPSC Office of General Counsel. It suggests that any penalty negotiation is not a negotiation at all but almost a take it or leave it proposition. When they say that you should anticipate getting only one meeting to make your case and then they will lock down their decision, how can you infer anything else? Add to this statements that the penalty initially demanded by the agency already has been vetted with the DOJ and one has to wonder if arguments supporting a differing view will be listened to and considered.
This concern is exacerbated by statements made by senior officials at the same meeting that the agency is exploring ways to publicize referrals to the DOJ, likening them to “grand jury indictments.” And what to think when another agency official states that penalties are justified because they always are imposed on the “bad guys” and not in “instances where good guys made honest mistakes. . . “. Add to this a call by the agency chairman for civil penalties in the eight figures during the next year, and what you see is an agency that appears to be punitive rather than collaborative.
It is unfortunate that those regulated by the agency are being lumped into “good guy” and “bad guy” categories. From my experience in the private sector, in different capacities in government and now in private law practice, the vast majority of companies do care about making sure the products they sell are safe and they want clear rules so that they can stay on the right side of the legal line. They also want a government that will work with them to solve problems when they come up, not just question their judgment and consider them “bad guys” when they protest. But from my recent conversations, from where many are standing, that is what they are seeing. For those of us concerned about product safety, that is not a positive development.