Earlier today, in an American Bar Association Antitrust Section webinar chaired by Harvey Saferstein, and with panelists Deborah Goldstein, Center for Responsible Lending, and Daniel D. Sokol, Professor of Law, University of Florida Levin College of Law, Hofstra's Norman I. Silber delivered the remarks that appear below about the Consumer Product Safety Commission and the Federal Communications Commission. Norm has graciously consented to allow posting of his notes for his talk to the blog. He cautions that this was designed for verbal presentation and that he did not record his sources and therefore can’t footnote but indicated by quotations lines that are taken from others. He is grateful for conversations with many individuals who helped provide him information which he has privately acknowledged.
Weakening the Consumer Product Safety Commission.
As consumer affairs professionals know, the CPSC regulates the sale and manufacture of more than 15,000 different consumer product lines, from cribs to all-terrain vehicles. It fulfills its mission by banning dangerous consumer products, establishing safety requirements for other consumer products, issuing recalls of products already on the market, and researching potential hazards associated with consumer products. Showcase recalls in the last few years, among hundreds of recalls, include the dangerous flaming Samsung Galaxy smartphones, exploding hover-boards, and IKEA bookcases that tip over. A number of consumer affairs professionals believe that the recall approach is a poor substitute for pre-market clearance and better inspection. The chief problem the Agency has faced is the glacial pace of rule-making, which has stalled rules that by most experts estimation can save many lives without imposing undue expense on consumers and businesses.
In 2008, in a show of strong consumer bipartisanship, connected to tragedies in connection with lead residues, the CPSC was granted extensive new regulatory authorities and mandates to improve consumer product safety through the Consumer Product Safety Improvement Act (CPSIA); new tools and building new capabilities, such as a new public information database and a world-class testing laboratory. Then Senator Obama took a leading role, but it was an accomplishment President Bush took pride in.
Among other things, the 2008 Safety Improvement Act upped the agency’s penalties for failing to comply with recall rules and for permitting unsafe products to enter the market rose to an aggregate limit of $15 million, with adjustments for inflation. Over the past two years, the CPSC has reached multimillion-dollar settlements under its elevated penalty authority.
Now comes the election. There is currently a Democratic majority but President Trump can remove Elliot F. Kaye as chair. But if he does he can’t turn around and appoint another chair because CPSC chairs must be confirmed by Senate and so the chair will remain vacant for some time; likely the commissioners will on their own vote one of two Republicans to be vice chair, and when Kaye is removed, a Republican vice chair will be acting chair. But there will be 3 Democrats until Oct 2017, when a Democratic majority is lost. At that point one can anticipate a de-emphasis on collecting all of the penalties already assessed, and perhaps more permissive attitude about consumer risk-taking.