With a new administration in the White House comes new leadership at the Consumer Product Safety Commission (“CPSC”). The CPSC has five commissioners, all of which are Former President Obama appointees, though no more than three may share the same political party affiliation. Commissioner Elliot Kaye – a Democrat – served as the CPSC’s Chairman until this month, when Commissioner Ann Marie Buerkle – a Republican – was named Acting Chairman. Kaye will continue to serve as a commissioner and Buerkle will remain Acting Chairman until President Trump nominates and the Senate confirms a permanent replacement. Before joining the CPSC in 2013, Buerkle represented New York’s 25th Congressional District in the House of Representatives and served as the U.S. Representative to the 66th Session of the United Nations General Assembly.
Will this switch in CPSC leadership change how the CPSC regulates consumer products? As previously noted in our post-election post, Top Issues Facing Retailers in the Trump Administration, civil penalties are the trend to watch. Although CPSC’s data shows an increase in the number and amounts of civil penalties extracted by the CPSC, Buerkle has been an outspoken critic of civil penalties because of the “vague statutory” defect reporting requirements of Section 15 of the Consumer Product Safety Act. In fact, as a commissioner, the former Congresswoman has voted against civil penalty settlements in nine of 12 cases and opined “[w]e should not be hoping for multi-million dollar penalties.” Perhaps the Trump Administration’s leadership changes at the CPSC will reverse this apparent trend.
The impact of Buerkle’s leadership at the CPSC will be a development to watch over the coming months. Despite this leadership change, the CPSC still has three Democratic and two Republican commissioners. But Commissioner Robinson – a Democrat – will see her term expire in October of this year. This creates an opportunity for a Republican-controlled White House and Senate to install a Republican commissioner, shifting the political makeup of the CPSC to a Republican majority led by a Republican Chairman.