CPSC enforcement activity continues despite its uncertain future

Over the past several years, a trend has emerged at the U.S. Consumer Product Safety Commission (CPSC) of stricter scrutiny and more robust enforcement of product safety regulations. On May 15, the CPSC announced it had set a new record for the number of individual product safety recalls and warnings in a week. The 28 notices were more than double the previous agency record.

Legal experts with Morrison Foerster observed that all the product safety actions announced on May 15 were unilaterally issued—meaning they were sent without approval from the manufacturer, distributor, or retailer of the affected products. They also primarily focused on products from China. The CPSC has been increasingly relying on unilateral press releases and other measures. In 2023 it issued 26 unilateral warnings, which was more than the total for the previous five years combined. Attorneys with Foley & Lardner LLC note that Acting CPSC Chair Peter Feldman has a history of supporting unilateral actions to take unsafe products off the market.

The Department of Justice (DOJ) has also been more willing to pursue criminal investigations into violations of the Consumer Product Safety Act (CPSA). In May 2024, the DOJ sought jail time for two executives who were found guilty of conspiracy to defraud the CPSC and failure to report information required by the CPSA. This marked the first-ever criminal prosecution for failure to report under the CPSA. The DOJ recently announced sentencing for the executives of more than three years in prison.

Proposed restructuring

Even amidst this active regulatory environment, the future of the CPSC is uncertain. On May 30, the Commission submitted a budget request for FY 2026 that proposed “to reorganize and transfer the functions of the [CPSC] to the [Health and Human Services] Office of the Secretary as the Assistant Secretary for Consumer Product Safety (ASCPS).” 

If this budget request is approved, a majority of the CPSC’s functions would be absorbed by the ASCPS and the agency would be dissolved. The ASCPS would have a similar budget to what the CPSC currently has, but the logistics of the transition and the extent to which the ASCPS would carry out a similar function has yet to be clarified.

Commission composition

There have also been significant recent changes to the composition of the Commission. Typically, it is a bipartisan panel with one chair and four additional commissioners from the Democrat and Republican parties. On May 9, the three Democratic members of the Commission, Chair Alexander Hoehn-Saric, Commissioner Richard Trumka Jr., and Commissioner Mary Boyle were fired by President Trump. This left only the two Republican members, acting Chairman Feldman and Commissioner Douglas Dziak to carry out agency duties.  

A U.S. District Court judge ruled in June that the three commissioners could resume their roles, and a unanimous panel of judges on the U.S. Court of Appeals for the 4th Circuit upheld the decision. In his opinion, one of the judges noted that the commissioners “were appointed to serve fixed terms with statutory protections designed to preserve the commission’s independence and partisan balance. Permitting their unlawful removal would thwart that purpose and deprive the public of the commission’s full expertise and oversight.”

However, the Trump Administration recently asked the Supreme Court to authorize the president’s actions against the three Democratic commissioners. With the outcome of that request pending and the changes proposed in CPSC’s budget request, there is much uncertainty around the future of both the CPSC and product safety oversight.

Looking forward

The shifting dynamics at the CPSC, including strict enforcement and an uncertain future for the agency, create a challenging risk landscape for businesses subject to CPSC oversight, in particular for Chinese companies or distributors of Chinese products. Businesses will need to maintain open communications with the CPSC and respond promptly to any inquiries about a potential product safety violation. In addition, manufacturers, retailers, and distributors should carefully review their existing recall and crisis plans and ensure they are adequately prepared for both a unilateral warning and a manufacturer-initiated recall.

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