As disagreements about implementation of the Consumer Product Safety Improvement Act ("CPSIA") continue, yesterday President Obama announced his intent to nominate Inez Moore Tenenbaum, former co-chair of candidate Obama's South Carolina campaign steering committee, as the new Chairman of the Consumer Product Safety Commission ("CPSC" or "Commission") and Robert S. Adler, member of the Obama transition team and former attorney advisor to two previous CPSC Commissioners, as a new CPSC Commissioner. If confirmed, there would be a significant shift at the Commission that could reduce some of the perceived gridlock.1
The President also announced that his 2009 proposed budget would grant $107 million to the CPSC for fiscal year 2009 – a 71 percent funding increase since fiscal year 2007 – including funding for, among other things, a five-member Commission panel. For fifteen years, the CPSC has operated with only three Commissioners. If confirmed by the U.S. Senate, Tenenbaum and Adler will join Acting Chairman Nancy Nord and Commissioner Thomas Moore on the Commission. The President also plans to nominate a fifth commissioner, who must be a Republican under CPSC rules. These changes will likely lead to a revitalized, restructured Commission with a new focus on enforcement and regulatory activities.
Inez Moore Tenenbaum
Ms. Tenenbaum is a lawyer with a background most recently in education. Since July 2008, she has worked as Special Counsel to the McNair Law Firm in its Regulatory, Local Government, and Finance practice groups. The firm describes its clients as "primarily businesses and governmental entities in the Carolinas." Prior to joining the McNair Law firm, she was elected twice as South Carolina State Superintendent of Education, serving from 1999 to 2007. During that time, Ms. Tenenbaum ran as the Democratic candidate for retiring Democrat Fritz Hollings' Senate seat, but lost to Republican Jim DeMint.2
Earlier this year, she also considered running for South Carolina governor in 2010.
Prior to attending law school, Ms. Tenenbaum was Director of Research for the Medical, Military, Public and Municipal Affairs Committee of the South Carolina House of Representatives, working on legislation relating to public health, the environment, child welfare, social service, adult and juvenile corrections, state military affairs, and local government.
Ms. Tenenbaum graduated from the University of South Carolina law school and received her bachelor's degree and Masters of Education from the University of Georgia.
Robert S. Adler
Mr. Adler has been elected six times to the board of directors of Consumers Union and has served on the Obama transition team since October 2008. Mr. Adler co-authored the transition team's agency review report of the CPSC – that report has not been released. At a speech given at the International Consumer Product Health and Safety Organization's annual meeting earlier this year, he acknowledged the difficulties associated with implementation of the CPSIA, including potential retroactive application of some of the provisions. In addition, he suggested increased Commission use of electronic media to improve consumer communications.
Mr. Adler is also currently a professor of legal studies at the University of North Carolina and the Luther J. Hodges, Jr. Scholar in Law & Ethics at Chapel Hill's Kenan-Flagler Business School, where he has served as Associate Dean for both the MBA and Bachelor of Science in Business Administration programs. His research and teaching focus on consumer protection and product liability, including related preemption issues, as well as on ethics, regulation, and negotiation.
Prior to teaching, Mr. Adler served as Counsel to the then-named Health and Environment Subcommittee of the House Energy and Commerce Committee, advising on CPSC legislative and oversight issues. A veteran of the Commission, Mr. Adler served for eleven years as a CPSC attorney advisor to two CPSC Commissioners from 1973 to 1984. He also served as Deputy Attorney General for the Pennsylvania Department of Justice and head of the Southwest Regional Office of the Pennsylvania Bureau of Consumer Protection.
Mr. Adler graduated from the University of Michigan law school and received his bachelor's degree from the University of Pennsylvania.
Kelley Drye & Warren LLP
Kelley Drye & Warren's Consumer Product Safety
practice group is experienced in providing advice on the difficult issues of how and when potentially hazardous consumer products must be reported to the CPSC. If product recalls are necessary, we work with our clients and CPSC staff to quickly develop and implement cost-effective communications programs that satisfy product liability concerns and minimize potential penalties. When the CPSC threatens or brings enforcement actions, we advise our clients on appropriate strategies.
For more information about this Client Advisory, please contact:
Christie Grymes Thompson
Mark L. Austrian
For example, on April 3, Acting Chairman Nord issued a statement explaining her vote, five days before the vote was due, on petitions to exclude certain products from the CPSIA's lead content provisions and announcing a stay of enforcement. Commissioner Moore responded critically stating, "It takes the vote of both Commissioners to stay enforcement of a congressionally-mandated ban." Both Nord and Moore have asked President Obama to nominate a new Chairman for the Commission.
In February 2009, Senator DeMint introduced legislation that would modify the CPSIA to give relief to small businesses, exempt thrift stores, and prevent application of the statute to products manufactured prior to the effective date of certain provisions.