The CPSC currently has one vacant seat, but a second seat will open up this October, at the termination of Commissioner Elliot Kaye’s hold-over year. A third slot will then become available at the close of Acting Chairman Adler’s term.

The Senate Committee on Commerce, Science, and Transportation will need to hold one or more hearings to consider the three nominees before they can be confirmed. However, it is unlikely that one of those hearings will be held before the Senate’s August recess, making action on all three nominees likely for the fall.

If the nominations are confirmed, the CPSC will have a full slate of five Commissioners for the first time since 2019. Currently split with two Democratic and two Republican Commissioners, the CPSC will have a 3-2 split between Democrats and Republicans if the nominees are approved.

Each of the three nominees has some experience on matters involving CPSC. Hoehn-Saric served as the Deputy General Counsel for the Department of Commerce after being senior counsel for the Senate Committee on Commerce, Science and Transportation. Mary Boyle, current CPSC Executive Director, has over a decade of experience at CPSC in various positions, including working on policy, agency administration, product recalls, and civil penalty negotiations. Trumka Jr., son of AFL-CIO President Richard Trumka, has assisted the subcommittee on Economic and Consumer Policy investigate consumer safety issues relating to children’s booster seats, JUUL e-cigarettes, and talc baby powder.

Summer associate Elizabeth Hamner contributed to this post. Ms. Hamner is not a practicing attorney and is practicing under the supervision of principals of the firm who are members of the D.C. Bar.

Fulfilled by Amazon

The CPSC voted 3-1 to file its complaint against Amazon for allegedly not recalling hazardous third-party products sold on its Fulfilled by Amazon platform. Those hazardous products include flammable children’s pajamas, faulty carbon monoxide detectors, and hair dryers without protections against electrocution. Though Amazon has stopped selling some of these potentially harmful products, the CPSC still wants Amazon to issue recalls with the Commission and to destroy any of the goods returned to them.

The CPSC’s complaint reflects its ongoing challenge with how to handle massive third-party platforms while still effectively protecting consumers. Under the Fulfilled by Amazon program, merchants can keep their products at an Amazon fulfillment center, and Amazon will pack and ship the products for them for a fee. Those merchants maintain legal titles to their products while Amazon provides its packing and shipping services. CPSC, however, emphasizes that when a consumer returns a Fulfilled by Amazon product, it goes back to Amazon, not the merchant. Amazon then examines the product to see if it can be resold. If an item cannot be resold, then the merchant can have the product mailed back to its own facility.

In its complaint, the CPSC considers Amazon as a “distributor” that may be liable for the safety of the products it packs and ships.

Amazon, like many similar platform providers, does not consider itself a “distributor” of these products. Indeed, the Texas Supreme Court’s Amazon.com, Inc. v. McMillan ruling this June supports Amazon’s stance. The Texas Court found that the company is not considered a “seller” of Fulfilled by Amazon products under the state's product liability law, because the platform does not actually hold title to the products.

Amazon has notified consumers who purchased the products identified in CPSC’s complaint about the potential hazards and offered to refund customers with Amazon gift cards, but the CPSC said those efforts are not enough. The CPSC wants Amazon to recall the defective carbon monoxide detectors, hair dryers and youth garments and facilitate their returns so the retailer may destroy them. And the CPSC has requested documentation proving the items’ destruction as well as monthly progress reports on the process. They further ask that Amazon notify those who purchased defective items and issue them full refunds.

The outcome of this case could jeopardize the existence of third party marketplaces or at least require them to completely revamp their current business models. In addition, it could have broader implications for entities that help third parties sell their products.

Thyssenkrupp Access Corp.

The CPSC also voted 3-1 to file the complaint against Thyssenkrupp Access Corp. (“Thyssenkrupp”), a major elevator company. The complaint alleges Thyssenkrupp’s residential elevators contain defects in the elevators’ design and installation materials, presenting a substantial product hazard.

The CPSC alleges that the elevators are dangerous due to a narrow gap between the hoistway door and elevator car door. Small children can slip between the doors into that space and become trapped or fall under a moving elevator car.

The lawsuit seeks to require Thyssenkrupp to inspect the elevators installed in customers’ homes and offer free installations of space guards in the elevators.

In another example of CPSC’s growing willingness to take unilateral action to notify the public of a potential safety issue, Acting CPSC Chairman Adler followed the lawsuit with a notice to vacation rental platforms, including Airbnb and Vrbo, urging them to disable elevators immediately until they have been inspected.

We will continue to watch this case and the ramifications it could have for companies that manufacture or distribute products for a third party’s installation.

Summer associate Elizabeth Hamner contributed to this post. Ms. Hamner is not a practicing attorney and is practicing under the supervision of principals of the firm who are members of the D.C. Bar.

• A list of rulemakings, petitions, applications, complaints, requests, and other items pending before the CPSC, including the length of time the matter has been pending and associated staff;
• The total number of reports of unsafe products received through saferproducts.gov from FY 2016-2019;
• Information pertaining to the number of investigations opened and closed by the Office of Compliance & Field Operations from FY 2016-2019;
• Details about involvement in voluntary standards development;
• A list of all FOIA requests from FY 2016-2019;
• A list of civil penalties, including lists of internal “referrals” for civil penalties; and
• A list of all matters from which CPSC leadership or staff has been recused from FY 2016-2019 and the reason for each recusal.

Kraninger is set to serve a five-year term pursuant to the Dodd-Frank Act. However, current litigation challenging the constitutionality of the CFPB’s structure raises questions as to whether Kraninger will ultimately serve the full five-year term, particularly if a Democratic president is elected in 2020. As we previously discussed here, the D.C. Circuit initially ruled that the CFPB was unconstitutionally structured because its single director can only be removed for “inefficiency, neglect of duty, or malfeasance in office,” but subsequently reversed the holding in an en banc decision. The constitutionality of the CFPB’s structure is also being challenged in the Second and Fifth Circuits – increasing the likelihood that the Supreme Court will take up the issue at some point soon.

Currently, Ms. Baiocco is a partner at Jones Day in Boston, and her practice focuses on products liability and tort litigation, as well as regulatory and reporting obligations enforced by the CPSC, for a number of high-profile clients. Ms. Baiocco attended Duquesne University School of Law, and clerked for The Honorable Gustave Diamond of the U.S. District Court for the Western District of Pennsylvania prior to joining Jones Day’s Pittsburgh office as an associate. She became partner in 2007, and helped found the firm’s Boston office in 2011.

The Senate Commerce Committee also announced yesterday that, on September 27, they will hold a nomination hearing for Acting Chairman Ann Marie Buerkle to become CPSC Chairman. She has served as Acting Chairman since February, and was nominated to become Chairman in July. Acting Chairman Buerkle has emphasized her desire to collaborate with stakeholders, to take a “balanced and reasonable approach” to regulation when data justifies rulemaking, and to use information campaigns to educate consumers and industry.

The CPSC is open to any proposals. According to Acting Chairman Ann Marie Buerkle, “The agency’s recent request for information seeking public input on ways to potentially reduce burdens and costs is not limited to existing rules. CPSC is interested in hearing any and all ideas, big or small, that might help ease regulatory burdens without compromising safety.” Acting Chairman Buerkle, who was nominated to the Commission by President Obama in 2013, has said that “seeking to reduce regulatory burdens is responsible governance.” The request for suggestions is in line with Buerkle’s general policy of promoting transparency and collaboration with the industry. For a further discussion of her policies, see our previous post here.

Submissions are due by September 30. This is an opportunity for companies to provide feedback in a collaborative, constructive context. We will continue to track the comments and provide updates on any important developments.

With the complexity of today’s product safety regulatory environment and the civil penalty amounts for failure to report safety hazards, it is more important than ever for manufacturers and retailers to identify and resolve potential liability issues confidentially before they draw scrutiny from regulators and negative publicity.

Please join chair of Kelley Drye’s Advertising and Marketing and Consumer Product Safety practice Christie Grymes Thompson for an update on consumer product safety. The webinar will cover hot button legal issues and summarize significant developments in consumer product safety and at the Consumer Product Safety Commission.

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Christie Grymes Thompson, Partner

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