November 5, 2012

Federal Court Decision Guides Companies Challenging Actions by the Consumer Product Safety Commission

Consumer Advertising Law Blog

On October 22, 2012, the US District Court for the District of Maryland released an opinion enjoining the Consumer Product Safety Commission (CPSC) from publicly publishing a report "implicating" a consumer product. The Company Doe v. Tenenbaum decision marks the first time a court has prohibited CPSC from posting a report on CPSC's Safer website, a database mandated by Congress in the Consumer Product Safety Improvement Act of 2008 (CPSIA).

The CPSIA requires CPSC to post on its database "reports of harm relating to the use of consumer products' that CPSC receives from consumers or a broad range of other designated parties. The plaintiff-manufacturer in Company Doe asserted that a report CPSC intended to publish was "materially inaccurate" because the report did not "relate to" the use of the manufacturer's consumer product, as required by the CPSIA. After CPSC rejected the company's argument, the company brought suit arguing, among other things, that CPSC's decision was arbitrary and capricious and an abuse of discretion under the Administrative Procedure Act. The court agreed with the company, ruling on cross-motions for summary judgment that CPSC cannot publish a report when the odds of a connection between a product and the harm are no more likely than that of a "coin flip." The court found that, to be "related" to a product, an event must be "connected with" or "associated with" the product. And, the court found unconvincing CPSC's efforts to "establish the necessary nexus" between the report and the product.

Companies throughout the distribution chain -- manufacturers, importers, retailers and distributors -- whose products are subject to CPSC's jurisdiction should take note of this decision. Company Doe not only creates a roadmap for challenging CPSC's decisions to publish reports on the Safer website, but the decision also could provide important support should a company challenge CPSC's decisions in other contexts as well. For more information about this decision and its implications, click here.

© Arnold & Porter Kaye Scholer LLP 2012 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.


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