The U.S. Court of Appeals for the Second Circuit (New York) in reversing a lower court decision, has given the U.S. Consumer Product Safety Commission the go-ahead to proceed with its Consumer Deputy retail survey of decorative Christmas lights. Under the program consumer volunteers will visit retail establishments and advise them of certain potential defects in Christmas decorative lights.
In a decision handed down December 10, the three judge appellate panel called the volunteer survey program "legal, indeed laudable" in the context of the Consumer Product Safety Act.
On November 10, the National Ornament and Electric Light Christmas Association, Inc. sought an injunction to prevent the CPSC from going ahead with the Consumer Deputy program scheduled to start that day. On November 12, after a hearing, Chief Judge Jacob Mishler of the U.S. District Court for the Eastern District of New York (Brooklyn) enjoined the Commission from carrying out certain parts of the program; specifically, CPSC was not permitted to disseminate three sections of a booklet intended as a guide for retailers containing information necessary for checking light sets for defects. Under the appellate ruling, that booklet, "What Can You Do Now and How Can You Do It?" may now be distributed as originally written.
According to the appellate decision written by Circuit Judge Henry J. Friendly, the Consumer Deputy program does not constitute regulation under the CPSA since the deputies, in their official instructions, do not require the retailers to do anything; "they merely supply a prod to retailers to acquire information of the sort the retailers would be obliged to transmit to the Commission if they obtained it without the prod." The decision goes on to say that offering this information to retailers so they may conduct their own stock inspection before sale, should provide "greater protection to the public."
An estimated 300 consumer deputies nationwide are presently involved in the survey which is intended to supplement official CPSC enforcement activities. In addition to providing retailers with a copy of the booklet, the deputies are also offering to demonstrate how to check lights using a model set of lights containing the defects and are also recording model types and style numbers of the lights sold in each store surveyed.
Copies of the appellate decision are available through the Office of the Secretary, Consumer Product Safety Commission, 10th Floor, 1750 K Street, N.W., Washington, D.C. 20207.
The U.S. Consumer Product Safety Commission (CPSC) is charged with protecting the public from unreasonable risks of injury or death associated with the use of thousands of types of consumer products. Deaths, injuries, and property damage from consumer product incidents cost the nation more than $1 trillion annually. CPSC’s work to ensure the safety of consumer products has contributed to a decline in the rate of deaths and injuries associated with consumer products over the past 40 years.
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