As the partial federal government shutdown enters its second week, businesses both large and small should be aware of the shutdown’s implications for the U.S. Consumer Product Safety Commission (CPSC) and for product safety. Companies should be aware that their obligations under CPSC continue, despite that their partner in product safety is absent until its funding is restored.
It might be hard to call the many recent reports of record fines from the National Highway Traffic Safety Administration (NHTSA) or the Consumer Product Safety Commission (CPSC) “news”, so routine have they recently become. In 2014 alone, NHTSA issued more than $126 million in civil penalties, exceeding the total amount collected by the agency during its forty-three year history. As NHTSA trumpets its “success” and regulators are calling on Congress to increase maximum fines dramatically, one wonders when those civil penalties cross the line into criminal territory.
The Supreme Court laid out a seven-factor test for determining whether statutory penalties are civil or criminal in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). That case involved a dual Mexican-U.S. citizen who left the United States to avoid World War II military service. The Court held that depriving him of his citizenship as a penalty for leaving the country constituted a criminal penalty that could not be imposed absent constitutional safeguards. Continue Reading When do Civil Fines by NHTSA or the CPSC Become Criminal?