In the 1993 classic movie, Groundhog Day, the protagonist is caught in a time loop and forced to repeat things over and over again. This year, on February 2, the CPSC celebrated Groundhog Day by agreeing to settle a timeliness action brought against Michaels Stores. For the CPSC, in true Groundhog Day-style, the Michaels’ settlement represents a situation that seems to repeat over and over again.
As I have written before, the pre-2017 political management of the agency was pressuring its staff to insist on large penalties that often seemed detached from the seriousness of the underlying violation. The underlying policy driving penalties was nothing more sophisticated than “bigger is better” with escalating penalty demands that were not linked to more egregious behavior. However, in September 2017, a court called out this behavior, (in the Spectrum case involving coffee brewers) refusing the agency’s demand for maximum penalties ($15+ million) and instead imposed a penalty just shy of $2 million. Basically, the court found that the agency did not prove its case that such penalties were warranted.
Now comes the settlement in the Michaels Stores case. Here, the agency alleged that Michaels did not report in a timely manner the fact that nine glass vases, out of almost 300,000 in inventory, over the course of a year, broke causing lacerations.[1] The agency demanded $7.1 million as an appropriate penalty and the company countered with an offer to pay $ 1.5 million to settle the case. When the company did not cave to the agency demands, the Commissioners agreed to send the matter to the Department of Justice to begin litigation. After several years of hearings, discovery and the expenditure of who-knows-how-much resource by both the government and the company, the parties have now agreed to a settlement—of $1.5 million.
Both the Michaels settlement and the court’s decision in the Spectrum case illustrate the need for the CPSC to reassess how it imposes penalties. The arrogant posture of demanding the maximum (or close to it) and curtailing negotiations when a company objects needs to change. Trying to peg the amount demanded to the seriousness of the conduct would be a good place to start and is what the statute and the regulations demand.
The CPSC plays a critical and central role in assuring that American consumers are not harmed by the products they use every day. The CPSC staff does important and very hard work to carry out the agency’s safety mission. Unfortunately, the agency’s political leadership has made this job more difficult by imposing policies that are often arbitrary and seem to be motivated by headlines to be garnered or records to be broken. The agency’s mission cannot be realized without the cooperation of all parties in the marketplace, including product manufacturers. Marquis penalties, imposed for their own sake, in the end do not engender the collaboration needed for effective compliance and instead, consign the agency to more Groundhog Days.
[1] The agency also alleged that Michaels mislead it by not acknowledging it was the importer of the vases even though the supplier of the vases publicly agreed that it was the importer, labeled the vases with its name as the importer and agreed to recall the vases.
Nancy Nord joined OFW Law after completing an eight-year term as a Commissioner on the U.S. Consumer Product Safety Commission, serving from 2005 through 2013. Ms. Nord was Acting Chairman of the CPSC from July 2006 until June 2009.
