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Dissenting Opinion of Commissioners Adler and Kaye Regarding the Statement of Policy on Enforcement Discretion Regarding General Conformity Certificates for the Requirements of the Refrigerator Safety Act

July 26, 2019

On July 24, 2019, the Commission, by a vote of 3-2, approved the issuance of a statement of policy announcing that, for household refrigerators that bear a safety certification mark indicating compliance with the Underwriters Laboratory (UL) voluntary standard, the CPSC will not enforce the Consumer Product Safety Improvement Act’s (CPSIA’s) plain language requirement that every manufacturer issue and provide a General Certificate of Compliance (GCC).  Under the law, manufacturers must certify, based on a test of each product or a reasonable testing program, that their products comply with all applicable product safety requirements, including, in this case, the Refrigerator Safety Act (RSA).  In general, we support burden reduction measures when they can be done without sacrificing safety.  However, we cannot justify exercising enforcement discretion here in direct contradiction to a statutory mandate, especially when we are not assured that a UL mark is equivalent to a GCC and are not convinced that the GCC requirement places a great burden on manufacturers.  Accordingly, we voted against the statement of policy and dissent vigorously from its issuance.

The Refrigerator Safety Act

Congress enacted the Refrigerator Safety Act (RSA) on August 2, 1956 in response to a number of tragic deaths across the country where young children crawled into a refrigerator – often an abandoned one – and suffocated when the refrigerator door closed on the unit.  To save lives, Congress directed manufacturers to meet a standard that enabled refrigerators to be easily-opened from within.  

Requirement for GCCs

In 2008, Congress enacted the Consumer Product Safety Improvement Act (CPSIA) that, among other things, requires every manufacturer of a product subject to a consumer product safety rule under any and all of the acts enforced by CPSC to issue a GCC certifying, based on a test of each product or a reasonable testing program, that its product meets applicable safety requirements.  A reasonable testing program requires each manufacturer to have a high degree of assurance that its product complies with the applicable consumer product safety standard.  

Needless to say, this provision of the CPSIA applies to manufacturers subject to the RSA and to the regulations under the Consumer Product Safety Act enforced by CPSC.

A Federal Register Notice on Reducing Regulatory Burdens

On June 16, 2017, CPSC issued a Federal Register notice seeking suggestions from stakeholders on ways to reduce regulatory burdens.  In response, the Association of Home Appliance Manufacturers (AHAM) requested that the agency issue a statement of enforcement discretion indicating that the agency would not enforce the GCC requirements for household refrigerators if the product complied with the requirements of the RSA and if the product displayed a safety certification mark indicating compliance with the UL standard for refrigerators, UL 60335-2-24.

After its review, staff recommended that the Commission approve AHAM’s request based on staff’s assessment that all refrigerators on the market comply with UL’s standard and that a UL certificate will provide sufficient evidence that any refrigerator bearing the certificate meets CPSC’s refrigerator safety requirements.  

Our Objections

Although we are not unsympathetic to AHAM’s request, on balance, we remain unpersuaded that declining to enforce the GCC requirement for refrigerators is justified.  

First and foremost, this enforcement discretion policy is in contradiction with Congress’s clear direction, in the 2008 CPSIA, to CPSC that it wanted greater assurance of industry compliance with CPSC rules.  In addition to requiring manufacturers of children’s products to undertake independent third party testing of these products and certification of their compliance, Congress specifically extended the requirement for GCCs based on reasonable testing programs for all products, including refrigerators, subject to agency rules.  We think the plain meaning of this statutory language points to greater enforcement, not less.

This is particularly true when one compares the information required to be included in GCCs with the information listed on UL certification marks.  The data required on a UL certification will be substantially less than that required for a GCC.  Of the seven separate items legally required for a GCC, only four of them will be listed on a UL certificate.  Staff notes that the missing pieces of information can be obtained through follow-up action by CPSC enforcement staff, but such action will cost the agency both time and money.

This exercise of enforcement discretion is substantially different from the previous enforcement discretion policy that the Commission adopted in 2016 for GCCs for adult wearing apparel.  In that case, the wearing apparel in question was already exempted from testing pursuant to the Commission’s own regulations; therefore, the Commission concluded that a GCC that simply noted an exemption from testing to the applicable safety requirements was not necessary to enforce those safety requirements.  Here, however, household refrigerators have not been exempted from the requirements of the RSA.  They are still by law subject to the testing requirements of the CPSIA, regardless of whether they have a UL mark.

Second, having reviewed staff’s analysis of the costs associated with complying with the GCC requirements, we cannot see any significant saving to the industry from the agency’s stopping our enforcement of this requirement.  Staff estimates that the cost of issuing and distributing a GCC per model would be roughly between $50-$100.  With all due respect, this cost is stunningly minor.  Even if we assume that a large manufacturer carries 100 models in inventory, that still would add up only to $10,000 for a firm with revenues in the hundreds of millions of dollars.  The only term to describe these costs is “chump change.”  We cannot justify dropping our enforcement authority over such minimal benefits.

Third and finally, we take issue with the process behind this action.  Given that the Commission has not put out for public comment the proposal not to enforce the GCC requirement for household refrigerators, the process for this action is simply too murky.  AHAM members might be aware of the Commission’s consideration of this request, but most members of the public will become aware only after the Commission’s implementation of this policy.  This does not strike us consistent with the Commission’s otherwise strong support of transparency in its actions.


Given the troubling precedent of dropping enforcement of our GCC requirements in spite of a clear Congressional mandate, we cannot support the Commission’s decision to issue this statement of policy.

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