United States: U.S. Senate Committee Approves Biden's CPSC Nominations

In July of 2021, after more than five months of silence, President Biden finally announced his nominations to the U.S. Consumer Product Safety Commission ("CPSC"), which included Alexander Hoehn-Saric, as Commissioner and Chair, Richard Trumka Jr., as Commissioner, and Mary T. Boyle, as Commissioner.

The Nominees

Hoehn-Saric currently serves as the Chief Counsel for Communications and Consumer Protection with the House Energy & Commerce. Prior to that, he was senior counsel for the U.S. Senate Committee on Commerce, Science, and Transportation where he overlooked and assisted with product safety and consumer protection issues. Trumka Jr. currently serves as the General Counsel and Staff Director of the Economic and Consumer Policy Subcommittee of the U.S. House of Representatives' Committee on Oversight and Reform. He works on oversight and investigations related to consumer protection, consumer product safety, and public health.  Boyle currently serves as the CPSC's Executive Director and is involved in policy, administration, legal questions, budgets, product recalls, negotiations, rules and regulations, and agency morale.

Hearings and Approvals

On July 28, 2021, the U.S. Senate Committee on Commerce, Science, and Transportation (the "Senate Committee") held a nomination hearing to consider the presidential nominations of Hoehn-Saric, Trumka, Jr., and Boyle. On September 22, 2021, the Senate Committee held an executive session to further consider the nominations. On September 23, 2021, the Senate Committee approved the nominations of Hoehn-Saric, as Commissioner and Chair, and Trumka Jr., as Commissioner.  The nominations are now subject to approval by the full Senate.

About the CPSC

The CPSC protects the public-primarily consumers and families-from unreasonable risks of injury or death associated with the use of consumer products that pose a fire, electrical, chemical, or mechanical hazard. CPSC was established through the Consumer Product Safety Act ("CPSA"), codified at 15 U.S.C. §§ 2051?2089, which defined the CPSC's authority and authorized the agency to develop standards and bans, establish safety requirements for consumer products, and issue product recalls when appropriate.

Current Composition of the CPSC

Robert S. Adler has served as a Commissioner at the CPSC since August 18, 2009, and was renominated for a seven year team in 2014 by President Obama. His term runs through October 2021. He was named Acting Chairman of the agency on October 1, 2019. Prior to his position at the CPSC, Acting Chairman Adler taught courses in business law, business ethics, business-government relations and negotiation while serving as a professor of Legal Studies at the University of North Carolina as the Luther Hodges Jr., Scholar in Ethics and Law at Chapel Hill's Kenan-Flagler Business School. He served as the Associate Dean of the MBA Program and the Bachelor of Science in Business Administration Program. He also spent almost a decade as an attorney-advisor to two commissioners at the CPSC, as well as serving as counsel to the Subcommittee on Health and the Environment of the Committee on Energy and Commerce in the U.S. House of Representatives.

Current Commissioners also include Dana Baiocco and Peter Feldman. Ms. Baiocco joined the CPSC on June 1, 2018. Ms. Baiocco's appointment by President Donald Trump is for a seven-year term, retroactively beginning on October 27, 2017. Before the CPSC, Ms. Baiocco was a partner at Jones Day and served as a member of the firm's Business and Tort Litigation Practice. She advised clients on risk mitigation, compliance with regulatory and reporting obligations, warranties, and product recalls, and she litigated in antitrust, construction, and bankruptcy matters. Mr. Feldman was also nominated and renominated by President Trump and was confirmed by the Senate to serve a subsequent seven-year term that will expire in October 2026.  He began serving as a Commissioner on October 5, 2018.  Before the CPSC, Mr. Feldman served as Senior Counsel on the Senate Committee where he advised on consumer protection, product safety, data security, and privacy issues and conducted oversight and investigations of the CPSC.

CPSC currently has two vacant seats, with another opening this October when Acting Chairman Robert S. Adler's term ends.

Evolving Composition of the CPSC

The addition of Hoehn-Saric and Trumka, Jr.-two Democratic commissioners-will result in two developments. This will be the first time since 2019 that the CPSC has a full slate of five commissioners. Additionally, the approval would bring an end to the CPSC's equal divide between political parties, with a now 3-2 split between Democrats and Republicans. A shift in the CPSC's political structure will most likely result in heightened rulemaking, and a potential increase in recalls and civil penalties.  While the public can rely on the agency's protection from hazardous products, manufacturers of consumer products should be prepared to maintain enhanced compliance programs and pay civil or criminal penalties if they fail to immediately report-within 24 hours-potential product hazards that create an unreasonable or substantial risk of serious injury or death.

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