Consumer Product Safety Improvement Act: Not the Last Word on Preemption

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1 (Vol. 36, No. 41) 1037 While there is widespread debate about the preemptive effects of the Consumer Product Safety and Improvement Act, attorney John B. O'Loughlin Jr. says the CPSIA clarifies, but does not change in any fundamental way, the roles the federal government and the states play in the enforcement of consumer product safety laws. And, O'Loughlin says, while much has also been made about the new law's strengthening of state attorneys general, it appears unlikely the states will flex the new authority given to them in federal court. It is unclear what impact, if any, the legislation will have in the courtroom on state common-law actions. This article is the fourth in a series on the CPSIA that examines the law from different perspectives. Previously, professor James T. O'Reilly examined the statute's effect on small business and foreign companies (36 PSLR 974, 10/6/08). On Sept. 29, attorneys David Arkush and Graham Steele discussed the law's impact on product safety (36 PSLR 940, 9/29/08). An analysis of the CPSIA, by attorney Kerrie L. Campbell, appeared Sept. 22 (36 PSLR 908, 9/22/08). Consumer Product Safety Improvement Act: Not the Last Word on Preemption R esponding to a flurry of product safety incidents and recalls in the last year and a half,' President Bush signed into law August 14 the Consumer Product Safety Improvement Act of 2008 (CPSIA).2 Termed by House Energy and Commerce Chairman John D. "the most significant overhaul" of consumer product safety laws in 40 years,3 the law signifies broad bipartisan support for enhanced fed- See, e.g., 2007: The Year Of The Recall (Consumers Union Releases Top Food And Product Recalls This Year), ConsumersUnion.org, product-safetyi html (listing recalls) (last visited on Sept. 24, 2008). Pub. L , 122 Stat (2008). See Aliya Sternstein, Product Safety Law Overhaul On Track To Clear Senate After Passing House, CQ Today, July John B. O'Loughlin Jr. is counsel in the Washington, D.C., office of Weil, Gotshal & Manges LLP. He advises clients on a range of product safety and environmental matters, including matters before the Consumer Product Safety Commission. He can reached at john.oloughlin@weil.com. eral and state efforts to improve the safety of all sorts of consumer products, ranging from infant products to allterrain vehicles, regulated by the Consumer Product Safety Commission (CPSC). Among other things, the new law attempts to clarify the extent to which CPSC laws and regulations preempt state laws and regulations regulating consumer product safety. Although much of the commentary surrounding passage of the CPSIA focused on federal preemption, in most respects the CPSIA does not change the basic preemption provisions contained in the laws enforced by the CPSC and leaves in place significant room for states to enforce their own consumer product safety laws. That aside, the CPSIA does help clarify some of the lirnits of federal preemption. Another aspect to the new law that attracted commentary was the so-called "deputization" of state attorneys general by granting them authority to sue in federal court to enforce the federal laws under CPSC jurisdiction, subject to intervention by the CPSC itself. The question remains, however, whether state prosecutors will avail themselves of these additional powers since the law does not prevent them from enforcing their own laws in the more familiar forum of state court and since the CPSIA does not allow states to impose civil penal- 30, 2008, available at wmspage.cfm?docid =news (quoting Dingell). PRODUCT SAFETY & LIABILITY REPORTER ISSN BNA

2 1038 (Vol. 36, No. 41) ANALYSIS & PERSPECTIVE ties for violations of federal law-a remedy that would remain available to states under their own laws. It is not at all clear that Congress has comprehensiveiy occupied the field of consumer product safety regulation at the federal level, leaving open the possibility of continued independent state enforcement activity in certain areas. Notwithstanding some of the media coverage of these aspects of the CPSL4, it is not at all clear that Congress has comprehensively occupied the field of consumer product safety regulation at the federal level, leaving open the possibility of continued independent state enforcement activity in certain areas. Preemption of State Law Clarified The U.S. Constitution provides that the laws of the United States are "the supreme Law of the Land...any Thing in the Constitution or Laws of any State to the Contrary notwith~tanding."~ When a state law conflicts with federal law, it is preempted and has no effe~t.~ State laws may conflict with federal laws and be preempted in three ways. First, "[a] federal law may expressly preempt state law."6 Second, "federal law or regulations may impliedly preempt state law or regulations if the statute's scope indicates that Congress intended federal law or regulations to occupy the field excl~sively."~ Finally, state law is impliedly preempted if it "actually conflicts with federal law or regulations" because "(1) it is impossible for a private party to comply with both state and federal requirements; or (2) state law obstructs accomplishing and executing Congress's full purposes and objectives."* The CPSC enforces the Consumer Product Safety Act (CPSA) and a number of related consumer product safety statutes. Prior to enactment of the CPSIA, these statutes already contained preemption clauses. For example, Section 26(a) of the CPSA provides: Whenever a consumer product safety standard under this Act is in effect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product which are de- U.S. CONST. art. VI, cl. 2. Maryland v. Louisiana, 451 U.S. 725, 747 (1981). 'See Great Dane Trailers Inc. v. Estate of Wells, 52 S.W.3d 737, 743 vex. 2001) (citing Cipollone v. Liggett Group Inc., 505 U.S. 504, 516 (1992)). 'Id., citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). Id. signed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the Federal ~tandard.~ The CPSIA, which amends the CPSA, does not fundamentally change the underlying preemption provisions in Section 26(a) of the CPSA or the other statutes enforced by the CPSC, each of which has preemption clauses similar to the CPSA.I0 The new law, however, clarifies several aspects of federal preemption concerning consumer product safety regulation. First, the new law prohibits the CPSC from attempting to expand the preemptive effect of the statutes it enforces by including preemption language in a proposed or final new rule or by reference in any preamble, statement of policy, executive branch statements, or other matter associated with the publication of a rule or regulation." This provision is not intended to prevent the CPSC from explaining the scope of its rules and standards in order to give guidance to the states and the regulated community. Instead, Congress intended to place limits on any attempt by the CPSC to create preemption where Congress had not expressly established it. Although the CPSC has not made a habit of attempting to expand the preemptive effect of its regulations, it was criticized in 2006 for not providing advance notice and an opportunity for comment when it included rather expansive preemption language in the preamble to a final new regulation regarding the flammability of mattresses.12 Similarly, the Bush Administration has been criticized for including preemption language in new rules issued by the U.S. Food and Drug Administration (FDA) and for authorizing the solicitor general to submit amicus briefs supporting preem tion in tort cases involving FDA-regulated products?3 Notwith- 15 U.S.C. 2075(a) (2008) (emphasis added). lo The other statutes under the CPSC's jurisdiction have similar preemption clauses that preempt state standards that are not identical, subject to certain exceptions. See Federal Hazardous Substances Act 5 18 (15 U.S.C note); Flammable Fabrics Act 16 (15 U.S.C. 1203); and Poison Packaging Prevention Act of (15 U.S.C. 1476). l1 CPSLA 231(a). Section 231 of the CPSIA states that the "provisions of sections 25 and 26 of the Consumer Product Safety Act (15 U.S.C and 2075, respectively), section 18 of the Federal Hazardous Substances Act (15 U.S.C note), section 16 of the Flammable Fabrics Act (15 U.S.C. 1203), and section 7 of the Poison Packaging Prevention Act of 1970 (15 U.S.C. 1476) establishing the extent to which those Acts preempt, limit, or otherwise affect any other Federal, state, or local law, any rule, procedure, or regulation, or any cause of action under state or local law may not be expanded or contracted in scope, or limited, modified or extended in application, by any rule or regulation thereunder, or by reference in any preamble, statement of policy, executive branch statements, or other matter associated with the publication of any such rule or regulation." l2 71 Fed. Reg , (Mar. 15,2006). The preamble to the final rule contained an expansive discussion of preemption-including an assertion that the new regulation preempted "non-identical requirements imposed by state courts"-that did not appear in the Notice of Proposed Rulemaking. Compare the preamble to the proposed rule at 70 Fed. Re 2469 (Jan. 13, 2005). "See New FDA Rule's Preamble S,rs Up Bar on Both Sides, New Jersey Law Journal, Feb. 1,2006. See also Brief for the United States as Amicus Curiae Supporting Petitioner, Wyeth v. Levine, No , Before the U.S. Supreme Court, BY THE BUREAU OF NATIONAL AFFAIRS, INC. PSLR lssn

3 ANALYSIS & PERSPECTIVE (Vol. 36, No. 41) 1039 standing the admonishment from Congress that the CPSC should not assert preemption in rulemakings, the language included in the CPSIA does not change the existing preemptive effect of regulations issued under the statutes enforced by the CPSC to the extent those laws provide for such preemption.i4 The second aspect of the CPSI.4 relating to preemption is that the new law expressly excludes from preemption warning requirements under state laws, such as California's Proposition 65,15 that were in effect August 31, 2003, or earlier.16 States Still flay Vttal Role The third aspect of the CPSIA that deals with preemption is how several new standards imposed by the law will have preemptive effect. For example, the CP- SL4 creates new limits on lead content in children's products,17 new limits for lead paint,'' and limits the use of phthalates in toys and certain children's products.ig The law requires the CPSC to issue a rule adopting a new standard for all-terrain vehicles (ATVS).~' The new law also creates a new federal toy safety standard by incorporating by reference an existing industry standard, known as ASTM F By designating these standards as "consumer product safety standards" un- Paul D. Clement, Solicitor General (urging Supreme Court to hold that FDA regulation of prescription drugs preempts common law product liability claims). l4 See note 10, supra. l5 CAL HEALTH & Smn CODE (Deering 2008). I" CPSIA 23100). l7 Section 101(a) of the CPSIA establishes a schedule by which manufacturers of children's products must gradually reduce lead in those products over a three-year period starting in February The CPSIA establishes a limit of.06% (600 parts per million or "ppm") of lead found in any part in the product effective six months after enactment, and then reduces the level six months later to.03% (300 ppm). Two years after that, the level is reduced to.01% (100 ppm) unless the CPSC determines that such a level is not feasible. l8 Section 101 (f) of the CPSIA directs the CPSC to decrease the maximum permissible level of lead in paint from the existing.06% (600 ppm) to.009% (90 ppm) within one year. lo Section 108 of the CPSIA bans the manufacture, import, distribution or sale of any "children's toy or child care article that contains concentrations of more than 0.1% of di- (2- ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP)," and imposes an "interim further study) on the manufacture, import, distribution or sale of any "children's toy that can be placed in a child's mouth or child care article that contains concentrations of more than 0.1% of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP)." While the CPSIA would preempt any more stringent state regulation of the same phthalates in the same types of products, the law expressly states that it does not preempt state standards regulating chemicals used as replacements for the banned phthalates. 20 Section 232 of the CPSIA requires the CPSC to adopt as a mandatory product safety standard the "American National Standard for Four Wheel All-Terrain Vehicles Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of America (American National Staidard ANSIISVIA )." CPSIA 106. ASTM F963 is a voluntary industry standard published by the American Society of Testing and Materials (ASTM). ASTM F963 creates performance standards and test methods for a range of potential risks in toys and children's products, including sharp edges, small parts, lead paint and other toxicity concerns, and electrical hazards. PRODUCT SAFETY & LIABILITY REPORTER ISSN der the Consumer Product Safety Act, and by defining a product that fails to meet the new lead standards as a "banned hazardous substance" under the Federal Hazardous Substances Act, the new law gives these standards preemptive effect through the preem tion language that already existed in those statutes.' In other words, these provisions added by Congress will have the same legal status as "product safety standards" as they would have had they been promulgated in a rulemaking proceeding by the CPSC. With such designation, the standards become subject to the existing preemption language contained in the underlying statutes they amend. With regard to the adoption of ASTM F963 as a new federal safety standard for toys and children's products, the CPSIA allows states to petition the CPSC for permission to impose standards designed to protect against a risk of injury associated with a children's product subject to ASTM F963."3 The CPSL4 authorizes the CPSC to issue a rule expressly allowing a stricter state rule requested by a state so long as the CPSC determines that the state rule provides a higher degree of protection and does not "unduly burden interstate commerce."24 Furthermore, the CPSIA specifically allows states to continue enforcing state standards for toys and children's products covered by ASTM F963 so long as such stricter state standards were in effect (not merely adopted) as of Aug. 13, 2008, and the state files a notice with the CPSC by Nov. 12, As a result, the new law creates a back door through which states might be able to impose standards that are more stringent than federal standards for toy safety. The new law creates a back door through which / states might be rbk to impose standards that are I I more stringent than federal standards for toy safety. The CPSIA does not modify existing language in the Consumer Product Safety Act, the Federal Hazardous Substances Act, or the other statutes subject to CPSC jurisdiction that allow states to impose stricter product standards if the product in question is for the state's own use or if the CPSC expressly authorizes, through a rulemaking, a state to impose a stricter standard under certain circumstance^.^^ In addition, states remain free to regulate where the CPSC has failed to act. For example, in the case of phthalates, Congress clarified that, 22 See, e.g., CPSIA 5 101(a)(l) (designating a product exceeding the new lead standards as a "banned hazardous substance" under the Federal Hazardous Substances Act and therefore subject to its preemption provision) and 108(d) (designating the phthalate standard as a "consumer product safety standard" under the Consumer Product Safety Act and therefore subject to its preemption provision). 23 CPSIA CPSIA 9 106(h)(1). 25 CPSIA 8 106@)(2). 26 See, e.g., Consumer Product Safety Act 5 26@) and (c) (15 U.S.C ) and (c)) and Federal Hazardous Substances Act 18 (15 U.S.C note). BNA

4 1040 (Vol. 36, No. 41) ANALYSIS & PERSPECTIVE while the new federal standards preempt conflicting state law regulating phthalates in children's products, they do not preempt state laws that attempt to regulate safety risks associated with chemicals that might be used to replace phthalates as they are phased The CPSIA's new, more stringent restrictions on lead and phthalates will preempt state and local laws, such as lead laws in Illinois and Chicago and pending phthalate legislation in California, to the extent those standards differ from the federal standards.28 For example, the existing Illinois statute covers any concentration of lead in a children's product above.06%, while the current CPSC lead regulation only addresses lead-bearing coatings that exceed.06% on children's products.29 Once the new federal standard goes into effect in February 2009 limiting any type of lead concentrations in a children's product to.06%, the federal and Illinois standards will be identical. Once the federal standard is reduced to.03% in August 2009 (and perhaps eventually to.01%), the Illinois standard will be preempted because it will be inconsistent with the federal standard (unless, of course, the state requirement is amended). In response to these provisions, some states have decided to repeal or withdraw regulations that appear to be preempted by the CPSIA. For example, the Massachusetts Department of Public Health withdrew its model children's jewelry regulations, which addressed the lead content issue, after the CPSIA was enacted.30 '' CPSIA 8 108(d). 2"PSI~ 231 (incorporating 15 U.S.C. 2075, which states, "Whenever a consumer product safety standard under this Act is in effect and applies to a risk of injury associated with a consumer product, no state or political subdivision of a state shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the Federal standard."). Section 18 of the Federal Hazardous Substances Act contains similar language. See 15 U.S.C note. 29 I6 CFR part See State Withdraws Lead Jewelry Regulations, Massachusetts Law Updates, Aug. 28, 2008, at BNA Conference on New Law Set for Oct. 30 A BNA conference, The New Consumer Product Safety Improvement Act of 2008: The New World of Regulation and Enforcement, will be held Oct. 30 in Washington, D.C. The faculty includes CPSC Acting Chair Nancy Nord and General Counsel Cheryl Falvey. The conference will highlight the law's impact on manufacturers, importers, and retailers of consumer products. For more information and registration, visit legaledge.bna.com, call (800) , or scribari@bna.com. I The statutory language does not prevent private defendants from asserting that a CPSC standanl should be given preemptive effect over a common-law claim. Legislation currently pending in California3' would regulate the same six types of phthalates and at the same limits imposed by the CPSVL.~~ If the California restrictions when ultimately enacted are identical to the federal restrictions, there would be no conflict and the law would give the state independent grounds to enforce the phthalate standards under state law. Impact on Common-Law Claims Open The final aspect of the CPSIA dealing with preemption prohibits the CPSC from construing the law as preempting "any cause of action under state or local common law or State statutory law regarding damage claims."33 In other words, Congress does not want the CPSC to assert that federal standards bar private causes of action, as was urged by the CPSC in its preamble to the open-flame mattress flammability regulati~n"~ and, in another context, by the FDA.35 Notably, however, the statutory language does not prevent private defendants from asserting that a CPSC standard should be given preemptive effect over a common-law claim, and it cannot be discerned from the language whether Congress clearly intended to prevent a state or federal court from deciding that an applicable CPSC standard should preempt a common-law clause of action. The conference report accompanying the CPSIA included the following phrase: "It is not the intention of the Conferees to supersede the otherwise lawful and appropriate preemption of State laws and regulations." The conference report language is not a model of clarity, as it also includes the following phrase: "States may not prescribe additional safety standards that go further than Commission regulations when it has been determined that State regulations are ~reempted.""~ Given the circular nature of this phrasing, courts can reach different conclusions about the extent of federal preemption. The extent to which a federal product safety regulation could be construed as preempting a common law cause of action is not merely an academic question. In a case that preceded the CPSIA by only a few months, the Supreme Court of Texas held in BIC Pen Corp. v. 31 See Assem. Bill 1879, Reg. Sess. (Cal. 2008) (includes in definition of "phthalates" di-2-ethylhexyl phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), di-n-hexyl phthalate (DnHP) and di-n-octyl phthalate (DnOP)); Senate Bill 1713, Reg. Sess. (Cal. 2008). 32 CPSIA CPSIA 23 1 (a). 34 See note 12, supra, and accompanying text. 35 See note 13, supra, and accompanying text. 36 H. Rep , Conference Report to accompany H.R (July 29, 1008) at Id BY THE BUREAU OF NATIONAL AFFAIRS. INC. PSLR ISSN

5 ANALYSIS & PERSPECTIVE (Vol. 36, No. 41) 1041 Carter that a federal CPSC rule mandating performance standards for child-proof disposable cigarette lighters reempted a common law claim for defective design. 38 Courts remain free to agree or disagree with the Texas Supreme Court that the CPSA preempts common-law damage actions if they coukl resutt in court-created state requirements that are inconsistent with federal regulatory standards. The court held that Congress impliedly preempted state claims when it authorized the CPSC to issue regulations to prevent injury to children from cigarette lighters, and that upholding the design defect claim alleged in the case would result in imposition of a design requirement that would conflict with the federal standard. The court concluded that "imposing a common law rule that would impose liability above the federal standard is contrary to the Commission's plan and conflicts with federal law."39 The court remanded the case for further consideration of other issues, such as whether the product may have been defectively manufactured. Part of the BIC Pen court's analysis focused on the interaction between the CPSA preemption clause, which preempts inconsistent state standards, and the statute's savings clause, found in Section 25, which provides: "Compliance with consumer product safety rules or other rules or orders under this Act shall not relieve any person from liability at common law or under state statutory law to any other person."40 The court held that the savings clause allows statelaw tort claims, but does not permit claims that actually conflict with the federal regulation^.^^ It seems unlikely that the Texas Supreme Court would have reached a different conclusion if this case had been decided following enactment of the CPSIA because the new law does not change either the preemption clause or the savings clause. Section 231 (a) of the CPSIA merely prevents the CPSC from construing its statutes as preempting state common law damage claims. Because Congress only limited the CPSC from asserting preemption over state laws, courts remain free to agree or disagree with the Texas Supreme Court that the CPSA preempts common law damage actions if they could result in court-created state requirements that are inconsistent with federal regulatory standard~.~~ 3H BIC Pen Corp. v. Carter, No , slip op. (Tex. Apr. 18, 2008). 39 Id. at 10. *O 15 U.S.C. 2074(a). BIC Pen Corp. v. Carter, slip op. at See, e.g., Colon ex rel. Molina v. BIC USA Inc., 136 F. Supp. 2d 196, 209 (S.D.N.Y. 2000) (holding that federal regulation was a minimum standard that could be supplemented by stricter requirements imposed by state common law). State Attorneys General Empowered Another aspect of the CPSIA that received much notice is the provision expanding the right of state attorneys general to enforce certain federal product safety laws. Under section 218 of the CPSIA, state attorneys general may sue on behalf of the residents of their state to: m Stop the sale of products that violate CPSC issued safety standards; D Stop the sale of certain recalled products as announced by the CPSC; Stop the sale of banned hazardous substances; Stop the sale of children's products that have not been certified as tested by third-party laboratories once those certification requirements go into effect (which will be phased in during 2009); Stop the sale of children's products that lack tracking labels once that requirement goes into effect in August 2009; Enforce the prohibitions against stockpiling products in advance of regulatory changes; and m Stop the sale of products with safe marks if the use of those marks is unauthorized. 2 Before filing suit, the state attorneys general are required to provide the CPSC at least 30 days' notice. If a suit has been filed by the CPSC, the state attorneys general cannot file a duplicative suit except in very limited circumstances. The commission has the right to become a party to any suit filed by a state attorney general.44 Prior to adoption of the CPSIA, Section 24 of the CPSA allowed "any interested person" (which would include state attorneys general) to bring suit in federal court, but suits were limited to alleging the violation of a "consumer product safety rule or an order under section 15."45 Under Section 218 of the CPSIA, in addition to the injunctive relief listed above, state attorneys general are newly authorized to initiate civil actions alleging that a product poses a "substantial product hazardh-grounds that were previously reserved for the CPSC itself.46 Where a state attorney general "determin[es] that such immediate action is necessary to protect the residents of the state from a substantial product hazard," he or she may immediately commence suit, without CPSC consent, although the CPSC retains the right to inter- ~ene.~~ In this regard, while Section 24 of the CPSA has always allowed state attorneys general to enforce some aspects of federal law in federal courts, Section 218 of the CPSIA expands the basis for such action to include an alleged "substantial product hazard." Allowing states to bring suit alleging a "substantial product hazard" is an expansion of existing law because this has been the CPSC's primary mechanism for imposing corrective action over the last two decades. The vast majority of product recalls are commenced on grounds that a product poses a "substantial product hazard" rather than on the alternative grounds that the product violates a specific product safety standard pro- 43 CPSIA " CPSLA 0 218(a). 45 See 15 U.S.C CPSIA Although the CPSC's consent is not required, the attorney general must notify the CPSC. -- PRODUCT SAFETY & LIABILITY REPORTER ISSN BNA 10-2@08

6 1042 (Vol. 36, No. 41) ANALYSIS & PERSPECTIVE mulgated by the CPSC or a voluntary industry standard relied on by the CPSC."' Allowing states to bring suit alleging a "substantial product hazard" is an expansion of existing law because this has been the CPSC9s primary mechanism for imposing corrective action over the last two decades. A significant reason for this is that over the years the CPSC has not promulgated a comprehensive body of product-specific safety standards-in part because the CPSC has jurisdiction over so many different products, some of which are covered by voluntary industry standards (which can be issued and revised with less cumbersome notice-and-comment requirements that attend federal rules). As a result, the CPSC has made effective use of the "substantial product hazard" benchmark as a basis for corrective action. In truth, the vast majority of product recalls have been conducted by manufacturers and importers without the CPSC having to commence or even threaten a lawsuit based on either a product safety violation or a substantial product hazard. As a result, section 218 of CPSIA grants to state attorneys general the same expansive basis for bringing suit as the CPSC has employed over the years. But State Law Likely to Be Chosen But the question remains: Why would a state attorney general seek to enforce the federal law in federal court if the state can more effectively and efficiently enforce state law in state court? Section 2 18(a) includes a provision that preserves the states' right to proceed on independent state grounds, as follows: Nothing in this section, section 5(d) of the Federal Hazardous Substances Act (15 U.S.C. 1264(d)), section 9 of the Poison Prevention Packaging Act of 1970, or section 5(a) of the Flammable Fabrics Act (15 U.S.C. 1194(d)) shall be construed- (A) to prevent the attorney general of a State, or other authorized State officer, from exercising the powers conferred on the attorney general, or other authorized State officer, by the laws of such State; or (B) to prohibit the attorney general of a State, or other authorized State officer, from proceeding in State or Federal court on the basis of an alle ed violation of any civil or criminal statute of that State. =E4 If a state has its own statute similar to the federal Consumer Product Safety Act or the Federal Hazardous Substances Act (which many states do), this savings clause allows states to enforce those laws in state court. The only restriction on the states' authority to enforce its laws in state court would be-as discussed above-a preemption argument that the state standard 48 See 15 U.S.C CPSIA 9 218(a). being enforced was not identical to the applicable federal standard (if there is an applicable federal safety standard). Many states simply incorporate by reference federal consumer product safety standards, and in such cases there would be no conflict between federal and state standards, and, therefore, no preemption. In those circumstances, a state attorney general could simply pursue an action in state court, in a forum and with procedures that would be more familiar to a state attorney general than would be the case under a federal statute in federal court. Despite the CPSIA's granting of authority for state attorneys general to enforce federal consumer product safety laws and regulations in federal court, it seems just as likely that states will continue to use their own organic authority to enforce product safety laws when the CPSC fails to take action to address a perceived safety risk. This is particularly the case where the state may seek to impose civil or criminal sanctions against a company violating state law. Section 218 of the CPSIA does not authorize state attorneys general to impose administrative penalties under the laws within CPSC jurisdiction or to seek civil damages in federal court, and is limited in that it only authorizes states to seek injunctive relief in federal court. As a result, it would appear that states will prefer in most cases to use state laws and state courts rather than seek to enforce federal law in federal court. Notwithstanding the media attention on the so-called "deputizing" of state attorneys general in enforcement of federal consumer product safety standards, in most cases it would appear that federal jurisdiction will remain primarily with the CPSC enforcement staff and that states will continue to enforce their own laws subject to their own priorities and prerogatives. From the perspective of product manufacturers, importers, distributors, and retailers, this suggests that when a potential problem concerning product safety arises, appropriate reporting, consultation, and negotiation should begin with the federal CPSC staff, but that companies should remain vigilant for the possibility of independent state action. In states where there is no set of laws and regulations comparable to those enforced by the CPSC, the state could make use of the expanded powers granted by Section 218 of the CPSIA. An example of a state using its own organic authority to enforce product safety laws occurred in 2007, before the CPSIA was enacted. The Illinois attorney general investigated a toy blood pressure cuff sold by Fisher-Price that, according to press accounts, contained lead concentrations in excess of 600 parts per million, the lead limit set by Illinois law. The lead detected in the product was not identified in a coating on the product, which is what the then-applicable federal standard regulated. Instead, the lead was found to be embedded in the vinyl product itself, which allegedly violated the state standard but which was not regulated by the thenapplicable federal ~tandard.~' In response to pressure from the state, Fisher-Price withdrew the products from Illinois stores and offered replacement products to consumers in Illinois and nati~nwide.~' The company did not, however, conduct a nationwide recall in coopera- 50 See 16 CFR part 1303 (establishing limit of 600 ppm for lead coatings on children's products). 51 See Fisher-Price pulls lead-tninted toy in Illinois but not other states, ConsumerReports.org, Dec. 4, 2008, COPYRIGHT 2008 BY THE BUREAU OF NATIONAL AFFAIRS, INC. PSLR ISSN

7 ANALYSIS & PERSPECTIVE (Vol. 36, No. 41) 1043 tion with the CPSC. Fisher-Price was not required to recall the product nationally because the product reportedly complied with the then-applicable federal standard.52 Notwithstandlng the media attention on the so-called "deputizing" of state attorneys general in enforcement of federal consumer product safety standards, in most cases it would appear that federal jurisdiction will remain primarily with the CPSC enforcement staff and that states will continue to enforce their own laws subject to their own priorftdes and prerogatives. The Illinois case highlights the challenges faced by product manufacturers when products might be regulated by one or perhaps only a small number of states but such regulation is not preempted in the absence of a conflicting federal regulation. Had Fisher-Price not agreed to the corrective action, the Illinois attorney general could have commenced litigation in state court alleging violation of Illinois law, although it is possible that a court could have concluded that the Illinois standard was not identical to the federal standard and was therefore preempted. Nothing in the CPSIA would change that possible outcome. A similar situation previously existed in California with regard to applicable standards for mattresses. For over two decades, federal regulations imposed a test method and flammability performance standard for mattresses when exposed to a smoldering source of ignition, such as a cigarette.53 Beginning in 2004, California also imposed a regulatory standard for the ignition of mattresses from an open flame source, such as a candle.54 When the California rule went into effect, there was no comparable open-flame standard at the national level until July 2007, when a nearly identical standard went into effect nati~nwide.~~ Prior to the effective date of the federal rule, mattress sellers had to either conform their products nationwide to the California standard or make sure that they built products especially for the California market. During the period before the CPSC promulgated the federal open-flame standard, blogs.consume~eports.orgldafety/2007/12/fisher-pricepu.htm1. 52 See Fisher-Price and Sesame Street Medical Kit Replacement Program, Mattel's Consumer Relations Answer Center, (last visited on Sept. 24, 2008). The recall, although promoted globally on the Fisher-Price Web Site and by the Illinois attorney general, is not listed in the CPSC database of national recalls CFR 1632 (federal cigarette ignition mattress standar?. Former California Technical Bulletin CFR (federal open flame ignition mattress standard). the CPSC took the view that the existing federal cigarette-ignition standard preempted the California open-flame standard. The CPSC asserted that because the federal and state requirements were both designed to address the same risk, i.e. the occurrence of fire, the federal standard should preempt the state standard even if the two standards use different flame ignition Notwithstanding the CPSC position on preemption, California enforced its own open-flame mattress standard until the new federal open-flame standard became effective in July 2007, at which time California withdrew its open-flame standard and began enforcing the federal standard, which was similar but not identical to the former state ~tandard.~' Conclusion While much commentary surrounded the preemption and state enforcement provisions of the CPSIA when the law was being debated, in reality the law does not change the federal-state enforcement of consumer product safety in any fundamental way. States may not enforce regulatory standards that are inconsistent with federal standards, but are allowed to enforce identical standards under state laws. That was the case before the CPSIA was enacted and remains so today. Moreover, states are free to impose regulatory standards where the federal government has not specifically regulated product safety. The state-specific lead content and mattress flammability rules are examples of this phenomena. Although those rules have been superseded by subsequent federal ~lemakings or the corresponding standards in the CPSLQ, states will remain free to create new regulations where there is a perceived vacuum in product safety regulation. An aspect of federal-state regulation of product safety that was not addressed by the CPSIA is whether state court decisions in common-law actions that may Letter to the chief of California's Bureau of Home Furnishings and Thermal Insulation, dated April 9, 2003, from general counsel, CPSC. The general counsel asserted that the only then-existing federal Standard for the Flammability of Mattresses (16. CFR Q 1632, which addresses smoldering ignition) preempted California's TB 603 (the open-flame standard). The CPSC's position was based on legislative history of the Flammable Fabrics Act and CPSC general counsel's Adviso Opinion 289.., PRO, CODE,9161 mee, 2,., Interested in Publishing? If you'd like to publish an analysis or commentary article, we'd like to consider your article or ideas. We're flexible on length, time frame, and in other ways. We seek articles by attorneys and others that provide useful analysis, commentary, or practical guidance. If you're interested in writing an article, or if you've written a memo, speech, or pleading that could be adapted for publication, please contact the managing editor at (703) ; FAX (703) ; or gweinsteina bna.com. PRODUCT SAFETY & LIABILITY REPORTER ISSN BNA

8 1044 (Vol. 36, No. 41) ANALYSIS & PERSPECTIVE conflict with federal regulation are preempted. As discussed above, the CPSC and some courts have asserted that federal regulations can preempt conflicting courtcreated standards, but the law remains unsettled on this issue. Section 231(a) of the CPSLA prevents the CPSC from construing that its statutes preempt state common law damage claims, but the language does not prevent a defendant from urging, or a court from concluding, that a federal safety standard preempts a common-law cause of action COPYRIGHT " 2008 BY THE BUREAU OF NATIONAL AFFAIRS. INC. PSLR ISSN