What To Expect From CPSC During The Biden Era

Law360 (November 19, 2020, 4:07 PM EST) --
Mike Gentine
Mike Gentine
Now that we know that President-elect Joe Biden will take over the White House in January, the near future for the U.S. Consumer Product Safety Commission is a little clearer. While there are still a couple of key unknowns — namely, what will happen over the rest of 2020, and how the U.S. Senate runoff elections in Georgia will turn out — we now have a better sense of what the CPSC of 2021 and beyond will look like.

This article looks at what we expect to happen during the transition, including the lame-duck congressional period, and what roles we foresee for each of the players: the Biden administration, the CPSC and Congress.

The Lame-Duck Session

Nancy Beck has been nominated to be both a CPSC commissioner and the agency's chair. However, her nomination has been stalled since June and hasn't cleared committee — largely because of opposition from three senators, two of them Republicans.

Even if Senate leadership were willing to devote floor time during the coming lame-duck session to a CPSC nominee — something it hasn't done during the first 22 months of the 116th Congress — that opposition to Beck may be too much to overcome.

One potential twist: A president can remove a CPSC commissioner only for cause, but can remove a chairperson at will. This happened in February 2017, when newly inaugurated President Donald Trump stripped Commissioner Elliot Kaye of the chair.

This means that, even if Beck were confirmed as chair, Biden would probably remove her from that role quickly. For this reason, the White House, or Beck herself, could withdraw her nomination as chair and proceed only with the commissioner nomination, which might give the senators who have opposed her some comfort.

It's unclear how receptive anyone would be to this compromise, however. It seems unlikely Beck's nominations will get a floor vote, let alone win a majority. For now, we're assuming that she will not be confirmed, and that the current vacancy at the CPSC will carry over into Biden's presidency.[1]

Georgia on the CPSC's Mind

Two Senate seats in Georgia are subject to runoff elections on Jan. 5. Control of the Senate will likely turn on those elections. For Democrats to control the Senate — through a 50-50 split, with Vice President-elect Kamala Harris casting tie-breaking votes — the party would need to win both Georgia seats.

This is possible, given that Biden carried the state, but unlikely. It seems more likely that the Senate will stay in Republican control. So once the Biden presidency begins on Jan. 20, 2021, what will that mean for a CPSC with an open seat, that is overseen by a divided Congress? 

Staffing the Biden CPSC

Biden's key CPSC task will be to bring the commission to its full five-member strength. If he runs into the same level of Senate gridlock that Trump did, the agency could lose its quorum and therefore its authority to act.

The first step will be to fill the currently open seat and appoint a chair. Most likely, Biden would nominate one person for both positions. He could tap either of the current Democratic commissioners as chair, but Kaye is already into the one-year holdover period following the expiration of his appointed term, and Commissioner Bob Adler's term expires in October 2021, so they are unlikely to be chairs.

Who, then, could be nominated? First, some perspective. CPSC confirmations haven't always been difficult. As recently as 2014, for example, the Senate confirmed both Kaye and Republican Joseph Mohorovic on unanimous consent. However, nominations across government have grown more partisan and more difficult in recent years, and the CPSC has been no exception.

If Biden had a Senate majority, he could attempt to rely on that majority to confirm a nominee. Since he likely will not, he will need to win over a few Republicans. He may have more luck than Trump did, because Republicans typically spend less political capital opposing CPSC nominees for fear of being cast as opposing safety.

But Biden's task still won't be easy. For example, nominees such as prominent consumer advocates are less likely to clear a Republican Senate. Biden may have more success with candidates in adjacent spaces, like testing labs, standards bodies or research institutions. Biden may also wish to use this vacancy, or another, to reward a key political supporter who may not have significant CPSC history or an established safety philosophy.

Another option would be for a Biden White House to pair a more progressive CPSC nominee with a Republican nominee, giving Senate Republicans some incentive to set aside their objections and confirm both. Biden could pair a Democratic CPSC nominee with a Republican, if either Commissioner Dana Baiocco or Peter Feldman were to choose to leave early rather than be consigned to the minority for the rest of their terms. Even if both stay, Biden could pair a Democratic CPSC nominee with a Republican nominee for another agency.

As noted, Kaye's term has expired, while Adler's term will end next October and create another vacancy. These departures will give Biden three opportunities to staff the commission — but they also create the risk of a CPSC without a quorum.

The Biden CPSC's Priorities

Assuming Biden successfully nominates new Democratic commissioners, a CPSC with a Democratic majority is likely to pick up some of the batons that fell when Trump took office and removed Kaye from the chairperson position, and when, later, the commission shifted to an even party split.

These initiatives include efforts to set or enhance standards for a variety of products, ranging from window blinds to recreational off-highway vehicles, along with broader policy initiatives, like rewriting the agency's interpretations of its obligations under Section 6(b), and the proposed overhaul of voluntary recalls.

In addition to engaging in rulemaking, a new Democratic CPSC majority is also likely to continue increasing compliance activity across a variety of industries. We have seen this trend under acting Chairman Adler, supported by the decision to put the agency's lawyers in charge of defect investigations.

The agency may also use more of its recall authority to establish de facto policy — as it has done for clothing storage units, issuing dozens of dresser recalls based solely on the agency's assertion that the dressers do not meet the relevant voluntary standard. That standard is not law, but the CPSC appears to be treating it as if it were.

The 117th Congress

There has been an unusual level of CPSC-related activity in the 116th Congress, but no new legislation. Because that level of buzz suggests that stakeholders throughout the CPSC community have many issues they want to tackle, and because it's been well over a decade since the last significant CPSC reforms, there is a decent chance that some kind of bill to "fix" the CPSC may pass soon.

With divided government and slim majorities in both chambers, however, the chances of dramatic changes are lower. Longtime priorities of consumer advocates — like repealing the information disclosure provisions of Section 6(b) of the Consumer Product Safety Act, or relieving the CPSC of the cost-benefit analysis it must do before it issues a rule — will likely have to wait for another Congress.

Again, however, there's a wrinkle that hints that the odds of big CPSC reform are higher than divided government would ordinarily suggest. The 2008 Consumer Product Safety Act — the most significant CPSC legislation in the last 30 years, and arguably since Congress created the CPSC in 1972 — was passed on nearly unanimous votes by a Democratic-controlled Congress and signed by Republican President George W. Bush.

It took a confluence of factors to move Congress to delve into CPSC issues: An 18-year gap since the last meaningful CPSC reform, a flood of high-profile recalls in 2007, a CPSC that had lost its quorum and an election in which Republicans were eager to counter charges of favoring business interests at the expense of consumers.

The backstory of that legislation may be instructive here. It has again been a while since the last overhaul, there are product-safety issues that have captured public attention — particularly the role of third-party platform marketplaces — and Washington, D.C., gridlock is again threatening the commission's quorum.

The biggest difference is that we're just past an election, rather than hurtling toward one. But congressional Republicans, eager to retake the House and retain the Senate, may still wish to avoid being tagged as anti-consumer, and thus may be more responsive to pressure from their Democratic colleagues and the Biden administration to enact comprehensive reforms.

The Takeaways for the CPSC Community

The coming months and years are likely to be busy for CPSC stakeholders. Companies will need to keep a close eye on CPSC matters — both potential inquiries into their products and policy shifts at the agency or on Capitol Hill — and they should prepare to engage in both arenas at short notice.



Mike Gentine is counsel at Schiff Hardin LLP. He served as senior counsel for the office of CPSC Commissioner Joseph Mohorovic from 2014 to 2017.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] Kaye's term has already expired, but he can remain in office for up to a year if there is no confirmed replacement. It is highly unlikely that the White House will nominate and the Senate confirm anyone in the last few weeks of the year.

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