An interesting and potentially very important case not only in CPSC world but for thousands of statutes and regulations is pending in a federal court of appeals. On May 18th, a civil rights group filed its opening brief against the Consumer Product Safety Commission in the 3rd Circuit case Milice v. CPSC, Docket. No. 20-01373 (3d Cir. Feb 20, 2020).
The New Civil Liberties Alliance (NCLA) is a group opposing the "unconstitutional administrative state within our U.S. government." It is headed by former CPSC staffer Mark Chenoweth.
NCLA, representing a new mother, brought the suit challenging the validity of the Commission's safety standards for certain children's products. The NCLA argues that the Commission's recent rule establishing safety standards for infant bath seats (including baby bath rings) is unlawful because the complete safety standards are allegedly available only by paying a private third-party, ASTM International ("ASTM"), for access.
The Cost of a Safety Standard Incorporated Into Law
ASTM is a well-recognized independent organization that develops consensus-based standards for a wide range of industries, including many children's products. These standards are voluntary, however government agencies such as the CPSC regularly create rules requiring compliance with ASTM standards. The CPSC has adopted as mandatory ASTM standards for a variety of products, including toys (ASTM F963) and full size cribs (ASTM F1169).
In 2019, ASTM updated its safety specifications for infant bath seats, ASTM F1967-19. The standard updates labeling, product performance, and safety testing requirements. The CPSC subsequently promulgated an agency rule, 84 FR 49435, which adopted the ASTM update and made the new standard legally binding on manufacturers.
The Commission's rule...
