Now that we know that Joe Biden will take over the White House in January, the near future for the U.S. Consumer Product Safety Commission (CPSC) is a little clearer. Part one of this series previewed the remaining weeks of 2020. Part two looks at what we can expect once the 117th Congress convenes and President Biden takes office.
Staffing the Biden CPSC
President 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 President 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 Elliot Kaye is already into the one-year holdover period after his term expired, and Bob Adler’s term expires in October, so they are unlikely chairs. Who 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 President 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 President 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 (see below) 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 with a Republican CPSC nominee, if either Baiocco or 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 ended and his seat will be vacant if a replacement hasn’t been confirmed by the end of October, while Adler’s term will end in October and create another vacancy. These departures will give President 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 President Biden successfully nominates new Democratic commissioners, a CPSC with a Democratic majority is likely to pick up some of the batons that fell when President Trump took office and removed then-Chairman Elliot Kaye from that 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 (ROVs), 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 as we have seen 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 CPSC of the 117th Congress
As we wrote recently, there was 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 “CPSC-fix” bill will pass.
With divided government and slim majorities in both chambers, however, the chances of dramatic changes are lower. Longtime consumer-advocate priorities – like repealing the information-disclosure provisions of Section 6(b) of the Consumer Product Safety Act (CPSA) 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, there’s a wrinkle that hints that the odds of big CPSC reform are higher than divided government would ordinarily suggest. The Consumer Product Safety Act of 2008 (CPSIA), 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 DC 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 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 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 the Hill, and they should prepare to engage in both arenas at short notice.