CPSC to Take More 'Aggressive' Enforcement Stance in New Administration, Lawyers Say
Early enforcement actions by the Consumer Product Safety Commission portend a more aggressive posture for the agency under the new Biden administration, lawyers said during a March 30 webinar hosted by law firm Crowell & Moring. Civil penalties announced by CPSC in January and February mark the first in two years, and more penalties are expected, Crowell & Moring lawyers Cheryl Falvey and Matthew Cohen said during the webinar.
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The penalties -- $12 million for Walter Kidde, as well as nearly $8 million against Cybex, both for failure to timely report to CPSC on product safety risks – follow a CPSC reorganization in 2020 that put agency lawyers on the front lines with the goal of improving the CPSC civil penalty investigations, as well as substantial product hazard investigations and administrative litigation. CPSC has also increased its use of unilateral press releases, whereby CPSC, without input or a recall from the manufacturer, says a product presents a hazard to the public. “The agency certainly has started to flex its muscles,” Falvey said.
Much of the agency’s reinvigorated enforcement effort will be focused on the ports, because CPSC recently received funding from Congress to increase its presence at entry points (see 2012210045). CPSC intends to concentrate in particular on counterfeit products that might also pose a safety risk, such as consumer electronics and lithium-ion batteries, Falvey said. CPSC will also be “looking at e-commerce in a new way,” including through a pilot it plans to conduct with CBP at an express carrier facility, Falvey said.
As CPSC moves into a more aggressive enforcement stance, companies regulated by the agency should in turn be strengthening their own compliance departments to better position themselves in the new environment, Falvey said. Robust internal testing can give companies data to address any concerns raised by CPSC investigators, she said. Companies should be using technology to track and forecast defects, and call center data to address what can be done proactively to address hazards. “If they’re going to get aggressive, we need to be aggressive as well,” Falvey said.