Acting Chairman Ann Marie Buerkle Nominated as Permanent Chairman of CPSC

On Monday, July 24, 2017, President Donald Trump announced his intent to nominate former New York Congresswoman Ann Marie Buerkle (Rep.) to be the Chairman of the Consumer Product Safety Commission (CPSC). If confirmed, she will begin a seven-year term on October 27, 2018, that will end in October 2025.

Ms. Buerkle has been the Acting Chair of the CPSC since February and has served as a CPSC commissioner since her nomination by President Barack Obama in 2013. During her time at the CPSC, Ms. Buerkle has opposed the CPSC’s move to increase civil penalties against manufacturers and retailers. In fact, last year, Ms. Buerkle wrote on the issue of growing civil penalty settlements, stating:

We should not be hoping for multi-million dollar penalties. We should be hoping for zero penalties—that is, a world in which every company subject to the [Consumer Product Safety Act (CPSA)] reporting requirements understands its reporting obligations and complies with them. And until that day comes, we should be trying to do everything we can to help firms understand how we interpret the requirements. There will be cases where penalties are entirely appropriate, but they should be more of a last resort. Consumers will be safer if we help companies prevent violations rather than celebrating marquee penalties.

She has also criticized the “vague” statutory requirements, namely the defect reporting requirements of section 15(b)(3) of the CPSA, that result in most civil penalty settlements.

Despite Ms. Buerkle’s nomination, the CPSC’s trend of issuing large civil penalties against manufacturers and retailers for failing to timely report potential product hazards will likely continue until there is a shift in the partisan balance of the CPSC. Three Democrat and two Republican commissioners currently head the CPSC, and the Democrat commissioners have largely been outspoken in their support for increased penalties. However, Democrat Commissioner Marietta Robinson’s term expires in October 2017, which will give President Trump an opportunity to appoint a new commissioner that may alter the CPSC’s partisan balance.

To speak with DJ Warden or Brandie Morgenroth on CPSC issues or risk management strategy, contact DJ at 612.305.7706 or dwarden@nilanjohnson.com, or Brandie at 612.305.7721 or bmorgenroth@nilanjohnson.com.

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