The Consumer Product Safety Commission Is Out of Control

By Dominic Pino

Monday, January 16, 2023

 

The Consumer Product Safety Commission (CPSC) made headlines last week for entertaining the idea of a ban on gas-powered stoves, before quickly backtracking amid a fierce public outcry. Though that was a particularly notable instance of the CPSC’s attempted administrative overreach, it was not the only one.

 

The CPSC is currently in the process of harassing a small-business owner whose product has been used safely by thousands of people since 2009. Leachco, an Oklahoma-based firm founded by Jamie and Clyde Leach, manufactures the Podster, a lounge pillow for infants. The pillow has sides that cup babies to keep them in place. Over 180,000 have been sold since the product first came to market.

 

In 2015, a day-care worker broke state law and the day-care center’s rules by leaving an infant unattended in a Podster for over an hour and a half. In 2018, two parents accidentally smothered their baby in bed while co-sleeping. Both those infants tragically died.

 

The CPSC is using those cases to warn consumers to “immediately stop using the Podster.” Both babies were in a Podster when they died, but anyone with common sense can see that the negligence of adults, not the safety of the product, was the likely culprit. Those are the only two infant deaths the CPSC cites as being associated with the Podster, which has otherwise been used safely by thousands of parents.

 

The CPSC’s administrative proceedings against Leachco acknowledge that in those two instances, adults were using the product improperly. It says, “The Podster is not and has never been advertised by [Leachco] as a sleep product” and that “the Podster contains warnings that the product should not be used for sleep and that adult supervision is always required.” Nonetheless, the CPSC says that “it is foreseeable that caregivers will use the Podster without supervision.”

 

If an agency can ban any product that, even with proper warnings, could possibly be misused by two people, then no product is safe.

 

The Pacific Legal Foundation, a libertarian public-interest-law firm, is representing Leachco before the CPSC and has brought a separate federal suit against the agency, challenging the constitutionality of the action. Attorney Oliver Dunford told NR, “We think this kind of claim should be before a court of law, not an agency.”

 

The CPSC’s structure is constitutionally suspect. The agency is allowed to initiate a complaint itself, which it has done against Leachco. (No consumer found the Podster objectionable enough to bring a complaint to the agency.) That case is heard by an administrative-law judge who is an employee of a different agency, not an actual court. And if the CPSC doesn’t like the judge’s decision in the case, it can appeal the decision back to itself. No matter what happens, the CPSC has the first and the last word on whether the Podster can be banned.

 

The same commissioner who floated the gas-stove ban, Richard Trumka Jr., is crusading against the Podster. Appointed to the commission by Joe Biden, Trumka Jr. is the son of the late AFL-CIO president Richard Trumka. After Leachco refused to withdraw the Podster, Trumka Jr. released a statement applauding the administrative complaint the CPSC brought against the company, writing that, “When companies refuse to recall products deemed deadly by CPSC staff, they should expect an administrative complaint to quickly follow.”

 

That’s the same kind of pompous language that Trumka Jr. used when discussing gas stoves, and it reflects the attitude of the agency. “The M.O. with the commission right now seems to be that if something can’t be made perfectly safe, it can be banned,” Dunford said.

 

That attitude could also be seen when former CPSC chairwoman Ann Brown took to the pages of the Washington Post on January 12 to argue that since consumers buy guns, the CPSC’s regulatory jurisdiction should be expanded to include them:

 

It still makes me furious. We need to make gun locks mandatory. And we need more: We need to ban assault weapons. We should outlaw guns at polling places. We need dealers to enforce a waiting period before customers can buy a gun.

 

If the CPSC had jurisdiction over firearms, it could restrict Americans’ Second Amendment rights through the same unfair internal agency processes currently being used to persecute Leachco, all because guns made an unelected progressive appointee “furious.”

 

The CPSC has adopted an unusual social-media posture for a government agency, tweeting that it is “desperately trying to keep you all alive.” The agency seems unaware that Americans would be able to stay alive without its heavy hand, and successfully did so for 196 years before it was created in 1972.

 

Consumer-safety regulation can be a legitimate function of government, but a constitutionally questionable agency staffed by unaccountable, power-hungry progressives isn’t necessary to carry out that function.