Bill That Would Have Given CPSC Fast Lane for Ordering Recalls of Direct-to-Consumer Products From China Dies … For Now

In late October, in the midst of the government shutdown, Senator Rick Scott (R-FL) introduced the “Protecting Americans from Harmful CCP Products Act” (S.3069), which was referred to the Senate Committee on Commerce, Science, and Transportation. The bill — which did not advance out of committee in the 2025 session — would have had substantial ramifications for consumer products imported from China. Whether this or a similar bill will be reintroduced in the future is yet to be seen, but there is no sign that focus on the safety of products from China — a significant portion of the imports that the U.S. Consumer Product Safety Commission (CPSC or the Commission) is charged with surveilling — will abate.

Presumptively Recallable

As its name implies, Scott’s bill focuses on products imported from China. Specifically, under Section 2(a) of the bill, a rebuttable presumption in favor of CPSC’s determination would arise and the agency would be given authority to order a recall under Sections 15(c) and (d) of the Consumer Product Safety Act (CPSA), including requiring notice to purchasers and the public and mandating that the company repair or replace the product or give purchasers refunds, if all of the following conditions exist:

• A product is manufactured in or retailed from China, including Special Administrative Regions like Hong Kong or Macao.
• That product is offered for sale directly to U.S. consumers, including via online marketplaces.
• CPSC has requested that the manufacturer or retailer provide information or take action on a perceived hazard and the company has not responded in a timely or adequate manner.
• CPSC has determined that the product presents a substantial product hazard.

Open Questions

Agency Process

Ordinarily, before CPSC can order a recall, the CPSA requires that the agency conduct a hearing under the Administrative Procedure Act (APA). Under the APA and CPSC’s rules, this process begins with a complaint authorized by a vote of the Commission and involves, at minimum, a hearing before an administrative law judge. The process can then advance to an appeal to the Commission, a request for judicial review from a federal court, and even potentially an appeal to the Supreme Court of the United States. Before that litigation process, however, agency staff typically spends several months or more investigating the product issue and engaging with the company to try to get the company to voluntarily recall the product.

In practice, it can take years for a matter to go from a CPSC staff request for a recall to a final Commission order. Administrative litigation to compel a CPSC recall is rare. CPSC is currently involved (at different stages) in recall litigation for two matters, and the complaints in those matters were filed in 2021 and 2022. The last fully litigated recall case began with a complaint in August of 2012 and ended with a final recall order in August of 2021. Due in part to this lengthy process and its attendant costs — and CPSC staff’s practice of notifying companies that it will unilaterally issue a safety warning about a company’s product if a company does not agree to recall the product — virtually all recalls are conducted “voluntarily” by companies.

Senator Scott’s bill provides that CPSC can issue an order to recall products within the bill’s scope “[n]otwithstanding subsection (f)” — the part of the CPSA that requires an administrative hearing for a recall order — but does not specify any process in its place. Rather, the bill provides that if CPSC does not get a sufficient response from the China-based manufacturer or retailer, the agency can determine that the product presents a substantial product hazard. The mechanism by which CPSC is to reach this determination is not specified.

Recall Logistics

Senator Scott’s bill requires that CPSC “publish notice of any mandatory recall order under [the bill] not later than 30 days before the order shall take effect, on its website and transmit such notice to all known distributors, importers, and platforms offering the product for sale within the United States.” It is not clear from the face of the bill what action is anticipated from these pre-recall notices. If the notice is to be posted 30 days before the order takes effect, presumably there will be no remedy available to consumers for at least that 30-day period (and potentially longer, if there is litigation over the order).

Notably, the bill does not specify who would facilitate or pay for these recalls. As provided in the bill, the companies that would receive these recall orders are located in China, where CPSC may have difficulty establishing jurisdiction and enforcing the order. Further, the bill’s authority applies only where such companies are failing to respond to CPSC adequately, if at all, and it is unclear whether companies that have not engaged pre-order would then respond to fulfill the order.

Overall, then, while the bill may give CPSC an option for announcing mandatory recalls, the result for consumers may not differ substantially from the unilateral “Product Safety Warnings” that CPSC routinely issues already, which do not provide a consumer remedy.

Partial “Platform”ing

As noted above, CPSC is currently engaged in litigation regarding two potential mandatory recalls. As we have written previously, one of those cases concerns Amazon, specifically with regard to whether the functions Amazon performs for sales through its “Fulfilled by Amazon” (FBA) program meet the definition of a “distributor” under the CPSA. (The CPSA defines a “distributor” as “a person to whom a consumer product is delivered or sold for purposes of distribution in commerce, except that such term does not include a manufacturer or retailer of such product.”) The answer to that definitional question is critical for determining the extent of CPSC’s jurisdiction over Amazon and its FBA program. How the eventual ruling in that case might affect other online marketplaces with fulfillment structures different from Amazon remains to be seen.

Senator Scott’s bill, however, would give CPSC jurisdiction over e-commerce platforms based in China regardless of fulfillment. Section 2(b) specifies that “an operator of an e-commerce platform that is headquartered in or primarily operates from the People’s Republic of China, including any of its Special Administrative regions such as Hong Kong and Macao, and that facilitates the sale of consumer products to United States consumers, shall be considered a distributor under [the CPSA].”

Even if reintroduced and ultimately passed, the bill would leave unresolved the agency’s power to regulate platforms more broadly.

Conclusion

While the 2025 session closed without the bill’s passing, the content of the bill further emphasizes that imported consumer products — particularly imports from China — remain under particular scrutiny, and companies that import and distribute such products should pay careful attention to compliance with the CPSA and other laws and regulations enforced by CPSC.

For questions about CPSC policy or about compliance with the Consumer Product Safety Act, including timely reporting and recalls under Section 15(b) of the CPSA, or with other product safety matters, please reach out to the authors of this blog post or any of their colleagues on Arnold & Porter’s Consumer Product Safety team.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.