4 PRACTICE AREA BRIEFINGS NOVEMBER 2017
CIVIL PENALTIES UNDER THE CONSUMER PRODUCT SAFETY ACT — IS A CHANGE COMING?
include civil penalty amounts that maximize the likelihood of deterring violations,
providing just punishment, promoting
respect for and compliance with the law,
reflecting the seriousness of the violation,
and ultimately protecting the public from
unreasonable risks of injury or death.
Id. Although CPSC Chair
Tenenbaum voted to approve the
settlement, Commissioner Robert S. Adler (who still sits as a
commissioner) voted against the
settlement, finding it too small “in
relation to the size of [the] company and in relation to the potential
harm of [the] defect.” (Statement of
Robert S. Adler, January 19, 2012,
available at www.cpsc.gov/s3fs-pub-
Eliot F. Kaye succeeded Inez Te-
nenbaum as CPSC chair, and served
in that position from July 28, 2014,
to February 8, 2017. While chair-
man, Commissioner Kaye made no
secret of his desire to see penalties
increase. In his view, enactment of
the CPSIA raising the maximum
penalty amount was a mandate to
increase penalties. See Joint State-
ment of Chairman Elliot F. Kaye
and Commissioner Robert S. Adler,
July 20, 2016, available at www.cpsc.
his leadership, the CPSC obtained
its first maximum penalty allowed
by the increased CPSIA amounts,
and increased the average amount
of penalties as shown in the chart
above. Commissioners Robert S.
Adler and Marietta S. Robinson have
consistently voted with him to approve the higher penalty amounts.
These increases in penalties
Acting Chairman Buerkle
raised questions in the regulated
community (and among other
commissioners) regarding whether
the CPSC was fairly assessing the
conduct being penalized using the
congressionally mandated factors,
or had merely adopted a policy of
seeking higher penalties irrespec-
tive of those factors.
On February 9, 2017, US President
Donald J. Trump named Ann Marie
Buerkle acting chairman of the
CPSC, and has since nominated her
to be chairman. She has served as
a CPSC commissioner since 2013.
Acting Chair Buerkle has taken
a markedly different view of civil
penalties than her predecessors.
For example, in 2014, then-Com-missioner Buerkle voted against a
US$725,000 civil penalty settlement
with HMI Industries Inc. in part
because she felt the penalty was
too high under the circumstances.