Ten months after President Donald Trump was sworn into office in 2017, his administration named Ann Marie Buerkle, a widely respected lawyer and former Republican member of Congress, to chair the Consumer Product Safety Commission (CPSC). After being nominated, she told the New York Times that the CPSC had become too “emotional” under Obama rather than being “data-driven and science-driven.” This signaled her hesitancy to vote in favor of stricter safety standards and implement enforcement actions such as fines against rule-violating companies.
Looking back at Buerkle’s nearly three years as chairwoman, the CPSC has implemented fewer safety standards, recalls and safety standards than during her Democratic predecessor’s tenure. As a result, the agency has faced intense scrutiny from national media, consumer advocacy organizations and Democratic members of Congress for a perceived failure to hold companies and entire industries accountable.
This election has massive implications for the CPSC, and as a consequence, for consumer product manufacturers. A change in CPSC leadership will result in a different philosophy on rulemaking and enforcement, and shifting priorities in terms of which key issues it will allocate resources toward. And down-ballot, if Democrats are able to regain control of the Senate, the agency’s pile-up of now-stalled consumer protection bills may get new life.
Impact on CPSC Leadership
In September 2019, Buerkle decided to step down from her post and made a surprising decision in siding with the two Democratic Commissioners to name longtime agency veteran Robert Adler as interim chair. Adler is leading the agency only until the Trump administration can nominate a permanent Republican replacement, but it took more than nine months for the administration to put forth a nominee. It now looks like that nominee, Nancy Beck, a former chemical industry lobbyist, does not have the bipartisan support needed from the Senate Commerce Committee to become the new chairwoman.
Regardless of this election’s outcome, it should create more stability and a clear direction for the CPSC so long as a permanent chairman is approved in a timely manner. If President Trump wins reelection, he will likely be forced to withdraw Beck’s nomination in favor of a less controversial, yet still reliably pro-Trump nominee. In this case, the agency may continue to take a conservative and light-handed approach to regulating some hot-button product categories.
If Vice President Biden wins, he will likely nominate a Democrat who would be far more likely to take an active approach to making rules and enforcing existing standards.
Impact on Recalls and Enforcement Actions
According to a February 2020 report from the law firm Arnold & Porter Kaye Scholer, the CPSC averaged 305 recalls during each of President Barack Obama’s last four years in office. In President Trump’s first three years, the CPSC averaged only 270 recalls, and this number is expected to decrease significantly in his fourth and final year due in part to the COVID-19 pandemic.
According to this same report, civil penalties—settlements reached after CPSC sues a company for failing to adhere to agency rules—have also declined from an average of six per year under the Obama administration to just over two in the Trump administration. This is seen as a clear indicator of the Commission’s more corporate-friendly posture under former Chairwoman Buerkle.
If President Trump wins reelection, we can expect this trend to continue or even accelerate. However, under new leadership, the agency is likely to play a more active role in regulating the industry using recalls and enforcement actions.
Impact on Rulemaking
On Jan. 30, 2017, an executive order from President Trump directed all federal agencies to eliminate two rules for every new rule proposed. While this order was never strictly followed, former Chairwoman Buerkle implied that she would steer the agency to comply with the “spirit” of the order, and her votes against implementing various safety standards back this up.
This has resulted in significant pressure on the CPSC in recent years from media (notably the Washington Post) and consumer advocacy organizations to be more aggressive in policing certain product types. The Democratic-led House stepped in to fill the void, and has passed numerous product safety bills that have since stalled in the Republican-led Senate, including:
- Safe Sleep Act of 2019, which aims to ban inclined sleep products for babies;
- Safe Cribs Act of 2019, which aims to ban padded crib bumper pads;
- Stop Tip-Overs of Unstable, Risky Dressers on Youth (STURDY) Act, which would require the CPSC to create strong mandatory standards for free-standing clothing store units;
- Nicholas and Zachary Burt Carbon Monoxide Poisoning Prevention Act of 2019, which directs CPSC to establish a grant program for states to purchase and install carbon monoxide alarms in high-risk facilities and homes; and
- Portable Fuel Container Safety Act of 2019, which would require CPSC to issue a consumer product safety rule to require flame mitigation devices in portable fuel containers.
If President Trump wins reelection and appoints a conservative chairman, the CPSC will likely continue taking a minimalist approach. In this case, the outcome of November’s Senatorial elections become even more important. If Vice President Biden wins the election and appoints a Democratic chairman, the CPSC may not wait for Congress—the agency could take it upon itself to pass new rules around these products, as was typical in prior administrations. In this event, the CPSC would likely revisit long-awaited mandatory standards on certain products including residential elevators, e-scooters, fireworks, ATVs and more.
How Companies Can Prepare
These are some steps companies should take to prepare for a change in leadership:
- Take a more proactive approach to consumer product safety. Think about how the company’s actions over the next three to six months could position it as a responsible steward of consumer safety for the next group of agency leaders. Create positive dialogue and build relationships with CPSC officials, and if you took a more conservative approach to reporting issues in years past, reconsider this approach.
- Understand how a change in administration could impact rulemaking in your industry. Does your company produce baby products, household furniture, products with controversial chemicals, ATVs or e-scooters? If so, you should be scenario planning for renewed attention around pending (but now-stalled) legislation or previously considered voluntary/involuntary standards. Accordingly, your company should start an earnest internal conversation about how to communicate with consumers about the safety of your products or educate them on safe usage.
- Create a recall plan. This plan will serve as a helpful shortcut in the event of a quality or safety issue. It should include best practice guidance for responding to a recall, processes and protocols for responding internally and externally, and templated messaging. If you have one already, ensure it works by conducting a crisis simulation that practices operational and communications response to a recall.
Jared Nelson is a Vice President of Crisis & Risk Management and leads Edelman’s Product Quality & Safety practice.