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Shihan and the Order of the Phoenix

With an apology to J.K. Rowling, I note with some awe that Shihan Qu and Zen Magnets has once again bested the dementors at the CPSC to live another day. Yesterday, the United States District Court for the District of Colorado reversed and remanded the Commission’s Final Decision and Order (FDO) ordering Zen to stop sale of its small rare earth magnets (SREMs).

To review, the CPSC brought an administrative complaint against Zen in 2012 to force a mandatory recall of its SREMs product. In tandem with this administrative action, in 2014, the Commission finalized a rule banning the future sale of SREMs. Zen challenged the rule and in 2016, the Tenth Circuit vacated and remanded the rule, finding that the evidence the Commission relied on did not support the rule.

Also in 2016, the Administrative Law Judge in the Zen administrative complaint found that the agency had not proved that the magnets were a hazard when accompanied with proper warnings and allowed Zen to continue sale. The agency lawyers appealed this decision to the Commissioners. Given the public statements three of the Commissioners had made about the merits of the case, it was no surprise that the Commission overturned the ALJ’s decision and issued the FDO to force Zen to stop sale of its SREMs. Zen appealed this decision, and the court has now ruled in Zen’s favor.

The court’s decision was a curious one. First, the court considered the substantive rationale offered by the Commission in its FDO and concluded that the agency did not act in an arbitrary and capricious manner—the standard for overturning the agency’s decision. After an analysis of the Commission’s reasoning, the court found, among other things, that “[T]hough a court might come to a different conclusion if it were in the Commission’s role, that does not render the Commission’s finding arbitrary and capricious.”

However, the court then went on to consider whether the due process afforded Zen met constitutional standards. Here the court found that the Commission fell short, stating that “Zen’s due process rights were violated because Zen was deprived a fair and impartial tribunal” in its appeal from the ALJ’s decision. Specifically, the court found that the public statements of certain Commissioners prior to the FDO decision demonstrated such a closed mind by decision makers that it was clear that Zen was not provided an impartial tribunal. The court then, strangely, concludes that while the Commission’s decision was not arbitrary and capricious, it was nevertheless unconstitutionaly tainted by the obvious prejudgment of certain Commissioners. The result is that Zen wins and the CPSC loses.

I will leave to others to debate the nuances of the court’s decision. What bothers me greatly are the safety implications of the CPSC’s actions here. Zen has made clear from the get-go that it does not oppose reasonable safety regulations of its product. Indeed, it has petitioned the CPSC to issue a regulation with rigorous requirements for packaging and labeling. Instead, the agency has petulantly insisted that it will accept nothing less than the complete capitulation of the company to the agency’s demands that it cease sale of its only product. This insistence has led to repeated “slap-downs” by those judicial bodies that have looked at the issue.

From a safety standpoint, the CPSC’s ineffectual regulatory and litigation strategy has resulted in opening the marketplace to companies who, unlike Zen, have no interest in promoting safe use of SREMs. Because the agency’s position on both the regulation and the recall of the Zen product have been overruled, the market is now wide open, with no requirements for safety precautions applicable to the product in place. This result is on the agency. If any injuries involving this product occur in the future, the agency must look internally for the cause. Their incoherent policies, in large part, bear the blame.

In 2012, Zen was viewed by most as a small company making a principled but quixotic stand against the overreach of the federal government. Like a phoenix, Zen has prevailed against overwhelming odds. But, beyond the story of a small company prevailing against the federal government, is the concern that, in this case, the federal government is not effectively protecting the safety of consumers. Because of the CPSC’s actions, the marketplace is less safe. That is on the agency and they need to answer for this result.

A Welcome Fresh Perspective at the CPSC

Published May 23, 2018 Chairman Buerkle , CPSC , Nancy Nord , regulatory reform Leave a Comment
Tags: CPSC, OFW, regulation, safety

After a nearly nine month delay, the United States Senate earlier this week finally voted to confirm the nomination of Dana Baiocco to be a commissioner of the CPSC. With this vote, one of the strange aberrations of the Trump Administration ceases: the 3-1 Democratic majority that the Administration and the Senate has allowed for 18 months now comes to an end.

With Ms. Baiocco’s confirmation, the balance of power on the commission will be evenly split between commissioners from the two political parties. There is another open seat (which the Administration, inexplicably, does not seem in a hurry to fill) which, when filled, would give the current Chairman a 3-2 majority and allow her finally to begin implementing the regulatory priorities of the Administration.

But equally important, Ms. Baiocco’s confirmation brings fresh perspectives and new ideas to the agency, which sometimes has difficulty embracing different approaches to regulatory issues. Perhaps she will not accept the regulatory sluggishness that can come when the agency is challenged to rethink its approach to issues.

It is important that the Senate not think its work is done with respect to the CPSC. Pending before it is the nomination of Acting Chairman Ann Marie Buerkle for permanent chair and another term. Chairman Buerkle has proved to be a reasonable, thoughtful and steady leader of the agency and she deserves to be confirmed. And it is hoped that the Administration may, at some point soon, nominate another commissioner to the existing open seat, giving the Chairman a working majority. In the meantime, Ms. Baiocco is a very welcome addition to the commission.

Groundhog Day at the CPSC

Published February 5, 2018 Consumer Product Safety , CPSC , Nancy Nord , Penalties , regulation , safety Leave a Comment
Tags: CPSC, Nancy Nord, OFW, Penalties, regulation, safety

In the 1993 classic movie, Groundhog Day, the protagonist is caught in a time loop and forced to repeat things over and over again. This year, on February 2, the CPSC celebrated Groundhog Day by agreeing to settle a timeliness action brought against Michaels Stores. For the CPSC, in true Groundhog Day-style, the Michaels’ settlement represents a situation that seems to repeat over and over again.

As I have written before, the pre-2017 political management of the agency was pressuring its staff to insist on large penalties that often seemed detached from the seriousness of the underlying violation. The underlying policy driving penalties was nothing more sophisticated than “bigger is better” with escalating penalty demands that were not linked to more egregious behavior. However, in September 2017, a court called out this behavior, (in the Spectrum Brands case involving coffee makers) refusing the agency’s demand for maximum penalties ($15+ million) and instead imposed a penalty just shy of $2 million. Basically, the court found that the agency did not prove its case that such penalties were warranted.

Now comes the settlement in the Michaels Stores case. Here the agency alleged that Michaels did not report in a timely manner the fact that nine glass vases, out of almost 300,000 in inventory, over the course of a year, broke causing lacerations.[1] The agency demanded $7.1 million as an appropriate penalty and the company countered with an offer to pay $ 1.5 million to settle the case. When the company did not cave to the agency’s insistent demands, the Commissioners agreed to send the matter to the Department of Justice to begin litigation. After several years of hearings, discovery and the expenditure of who-knows-how-much resource by both the government and the company, the parties have now agreed to a settlement—of $1.5 million.

Both the Michaels settlement and the court’s decision in the Spectrum case illustrate the need for the CPSC to reassess how it imposes penalties. The arrogant posture of demanding the maximum (or close to it) and curtailing negotiations when a company objects needs to change. Trying to peg the amount demanded to the seriousness of the conduct would be a good place to start and is what the statute and the regulations demand.

The CPSC plays a critical and central role in assuring that American consumers are not harmed by the products they use every day. The CPSC staff does important and very hard work to carry out the agency’s safety mission. Unfortunately, the agency’s political leadership has made this job more difficult by imposing policies that are often arbitrary and seem to be motivated by headlines to be garnered or records to be broken. The agency’s mission cannot be realized without the cooperation of all parties in the marketplace, including product manufacturers. Marquis penalties, imposed for their own sake, in the end do not engender the collaboration needed for effective compliance and, instead, consign the agency to more Groundhog Days.

[1] The agency also alleged that Michaels mislead it by not acknowledging it was the importer of the vases even though the supplier of the vases publicly agreed that it was the importer, labeled the vases with its name as the importer and agreed to recall the vases.

Not Knowing When to Quit

Published November 28, 2017 Buckyballs , Consumer Product Safety , CPSC , magnets , Nancy Nord , regulation Leave a Comment
Tags: CPSC, Nancy Nord, OFW, regulation, safety

Recently I had the great honor of being appointed a fellow at the University of Pennsylvania Law School. As part of those responsibilities, last month I spoke to the administrative law class on how regulators balance competing priorities, using the CPSC’s actions on Zen Magnets[1] as one example.

The Zen Magnets case is especially relevant since it dramatically illustrates how regulators, acting in the first instance with the best of intentions, can pursue their regulatory and enforcement goals with such fervor as to distort and pervert the consumer safety objectives central to the agency’s mission. I have written extensively (see here and here) about the procedural and due process issues that the agency threw to the winds in pursuing Zen Magnets.[2] As a result of the agency’s zealousness, expansive reading of the statute, and lack of care, it lost the administrative recall case, with the Administrative Law Judge finding, in part, that Zen’s warnings were sufficient and that the agency did not prove that a defect existed. When the related regulation banning all small powerful magnets was challenged, the 10^th Circuit Court of Appeals found that the administrative record showing injury from the product and considering benefits of the product was deficient.

Nevertheless, the battle rages on. In a move that surprised no one, a majority of the commissioners recently voted to overturn the ALJ’s findings that SREMs are not defective and ordered Zen to immediately stop sale of the product. The parties agreed to delay the effective date of that stop sale order to allow for an appeal to be filed.

What is especially interesting about the majority’s opinion overturning the ALJ’s decision is its breadth in determining that consumer misuse of the product, standing alone, can form the basis for a product defect determination. However, the regulations do not support this conclusion as clearly as the majority contends. The regulations discuss consumer misuse in two contexts. First, the regulations present an example of a defect when product instructions or safety warnings are inadequate and this inadequacy contributes to the misuse of the product. (See 16 USC §1115.4 (d)) Obviously, this is not the situation with Zen Magnets. Second, the foreseeability of consumer misuse is listed as one factor to be considered and balanced with other appropriate factors in determining whether the risk of injury rises to the level of making the product defective. (See 16 USC §1115.4)

However, it is a stretch to say that injuries occurring solely from consumer misuse of a product makes a product defective, especially in the presence of strong package warnings. One need not look very far to find examples of products where the commission has come out the other way. For example, small button batteries present a similar ingestion hazard to magnets but with even more severe injuries, many more incidents and a number of child deaths. Yet the commission has determined that package warnings and consumer education adequately address this more significant risk. Choking hazards from small parts in toys are well-established risks. Every year children choke on small parts in toys found in the family toy chest. Yet the commission has determined that package warnings are sufficient for toys designed for children older than three, even knowing that many households have children of varying age groups and that the toy with the small part may be accessible to younger children.

Finally, the commission opinion provides no boundaries that can be applied beyond this case between foreseeable consumer misuse and obviously risky behavior. The take-away is that if a child is injured, even though the injury occurs because an adult negligently misuses the product or disregards warnings and instructions, then the product may well be deemed defective. The regulations do not necessarily lead to that conclusion but the current commission’s reading of them suggests that.

From a safety standpoint, the problem is that all this has led to a perverse result where safety considerations take a second chair to winning the case. The CPSC has devoted a significant amount of public resource to forcing Zen Magnets off the market. So far Zen’s record in court is much better than is that of the agency. With all its guns trained on Zen, the agency has allowed magnets without warnings to enter the country and be sold freely.

Zen has approached the agency to find a solution that would allow magnets to be sold but with aggressive restrictions on packaging, warnings, age restrictions and sales channels. In fact, Zen recently petitioned the CPSC to issue such a regulation. With little fanfare (and without even notifying the petitioner), the agency has requested comment on the petition and the deadline for comments expires next week. It almost seems like the agency does not want to hear what the public thinks of this idea. Yet such a rule may provide the agency with a mechanism for policing the marketplace while still allowing the product to be sold with a strong safety message.

The Zen case is an example of the agency, in its zeal to address a real safety concern, losing sight of the ultimate safety goal. In terms of regulatory priorities, the agency is putting winning above safety—since on its current course, it may put out of business a company trying to address the safety of its products while it ignores the many other magnet products that are being sold with no warnings or safety information. In this case, if the agency wins, consumers loose. It’s time to quit.

[1] Zen is a very small Colorado based company that sells small rare earth magnets (SREMs) primarily on the internet. Its packaging is difficult to open and the product has multiple warnings of ingestion hazards.

[2] Among other things, the CPSC wrote to magnet retailors urging stop sales prior to negotiating recalls, thereby destroying retail market rather than seeking an injunction against sale as provided by the statute. Individual commissioners made public statements about the safety of the product prior to voting indicating a predetermination of the issues. When the agency voted to sue for a recall, the staff amended the complaint to add counts and the company principal without a vote of the Commission.

A Few More Bites at the Apple

Published September 7, 2017 Consumer Product Safety , CPSC , flame retardants , Nancy Nord , regulation Leave a Comment
Tags: CPSC, OFW, regulation, safety

Next week the CPSC Commissioners will hold a hearing on whether to grant a petition to ban a wide range of consumer products containing organohalogen flame retardants (OFRs). The petition, filed in 2015, is overly board and seeks to treat in the same way a wide class of chemicals that differ one from another. It seeks to ban a broad range of consumer products with OFRs that vary in use and exposure patterns. It seeks a ban in spite of the fact that the scientific data to justify this action is, charitably, sketchy at best. For these and many other reasons, the petition, on its face, presents sufficient reason for denial. (See here.)

Nevertheless, the agency held a hearing on the petition in late 2015, put it out for public comment, and has devoted a considerable amount of staff resource to considering the issues presented by the petition. After a thorough examination of the data in the petition, the hearing record and the public comments, in May the agency staff recommended that the petition be denied for a variety of reasons. In spite of all this, the Commissioners apparently do not believe that they have sufficient information to make up their minds on the matter and so are having yet another hearing.

It is not clear what this hearing is intended to accomplish, other than to give the petitioners another chance to explain why the agency staff was in error in its conclusions. Presumably some Commissioners will offer helpful hints on how to recast the petition to avoid the shortcomings identified. Perhaps there will be some conversation about why the petitioners brought the issue to the CPSC when it is more properly before the EPA. No doubt some on the dais will decry the statutory requirement to balance risks with costs, a requirement the petitioners cannot come close to meeting.

While the hearing will be interesting, one wonders why the agency has devoted such a significant level of resource to this activity. If the Commissioners vote to overrule their staff and grant the petition, then the level of activity required for rulemaking would have the agency busy for years to come. If the Commissioners agree with the staff and vote to deny the petition, then what was the point of the hearing? Among other things, it certainly raises questions about the stewardship of public resources.

Tell CPSC What You Think

Published June 30, 2017 Burden Reduction , Comment Request , Consumer Product Safety , Nancy Nord , Recalls , regulation , safety Leave a Comment
Tags: CPSC, Nancy Nord, OFW, Recalls, regulation, safety

One of the very positive hallmarks of the new leadership at the CPSC is a desire to hear from all interested stakeholders on how to more effectively push forward the agency’s safety mission. The agency has offered several opportunities for input and for those of us who share that goal, these opportunities should not be ignored.

First, the agency will be conducting a workshop on ways to improve the recall process, including the effectiveness of recalls. Recall effectiveness is a perennial topic of conversation at the agency so it is gratifying that the agency is again looking at this topic, but hopefully from a new perspective. Both as a Commissioner and now, in private law practice, I often hear complaints about the opaqueness of the process. Participation in the workshop offers an opportunity to give real suggestions on how to make the recall process work better. The workshop will be held on July 26, 2017 at the agency headquarters in Bethesda. Those interested in participating must sign up with the agency no later than July 3. Here is more information about the workshop.

Second, the agency is requesting comments on ways to reduce the regulatory burden imposed by agency rules in ways that do not diminish safety. This effort is especially welcome since many of the regulations issued by the agency over the past eight years did not consider ways to accomplish safety goals in less burdensome ways. When Congress told the agency to try to find ways to reduce the burden of testing, the agency went through a fantasy effort to comply and, not surprisingly, came up with very little. Indeed, about the best it could do was exempt from testing toys made entirely from untreated wood from the trunks of trees (but not the branches—who knows what could be in branches!). (See here.)

Reducing unnecessary regulatory burden is important since this engenders respect and support for the agency. Rules that are outdated, overly complex, or impose requirements without regard to real and measurable safety results should be identified and either changed or repealed. The agency’s effort to collect information on burdens imposed by its regulations is a welcome first step in this process.

Off On New Adventures!

Published July 2, 2015 Consumer Product Safety , CPSC , Nancy Nord Leave a Comment
Tags: admin law, CPSC, Nancy Nord, OFW

Some might find it a surprising way to celebrate the start of the Independence Day weekend by announcing a new job. Nevertheless, I wanted readers to know that after leaving the CPSC 18 months ago, I have decided to come out of “retirement” and have become affiliated with Olsson, Frank, Weeda, Terman & Matz, a Washington law firm with a regulatory, public policy and litigation practice. Since the firm includes not only exceptional lawyers and policy advisors, but also scientists, doctors and other technical professionals, it brings a special kind of creativity to problem solving that is unmatched in Washington. It is this creativity and “spunk” that convinced me OFW was the right place for me.

Since leaving CPSC, I have spent my time writing, speaking and working on interesting projects of my choosing dealing with regulatory policy and safety issues. While I intend to continue these interests, my affiliation with OFW will bring another dimension to these activities.

I also intend to continue writing this blog. Its purpose is to educate and to provide commentary—sometimes complementary and often critical—about what is happening at the agency from my unique perspective. I try not to pull punches and my affiliation with OFW will not change that.