Criminal Liability Under the CPSIA

 Posted on January 30,2009 in Uncategorized

Following Walter Olson's (Overlawyered) posts about the Consumer Product Safety Improvement Act of 2008, I thought I'd check out the criminal penalties for violation of the CPSIA.

Contrast this:

Any person who knowingly and willfully violates section 2068 of this title after having received notice of noncompliance from the Commission shall be fined not more than $50,000 or be imprisoned not more than one year, or both.

(15 USC §2070 before its amendment by Section 217 of the CPSIA)

and this:

Violation of section 2068 of this title is punishable by- (1) imprisonment for not more than 5 years for a knowing and willful violation of that section; (2) a fine determined under section 3571 of title 18, United States Code; or (3) both.

(15 USC §2070 as amended by Section 217 of the CPSIA).

Violations of Section 2068 are now punishable by up to five years in prison, instead of one year, and a fine of up to $250,000 (section 3571's maximum felony fine), instead of $50,000; a person need not have received notice of noncompliance before criminal penalties apply; and there is now strict liability under section 2068 - violations that are not willful and knowing may result in huge fines.

So what sort of conduct will invite a possible 5-year prison sentence if engaged in knowingly and willfully, or a fine otherwise?

Here's how section 2068 will look after amendment:

(a)Designation It shall be unlawful for any person to- (1) sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States any consumer product, or other product or substance that is regulated under this Act or any other Act enforced by the Commission, that is not in conformity with an applicable consumer product safety rule under this Act, or any similar rule, regulation, standard, or ban under any other Act enforced by the Commission;

(2) sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States any consumer product, or other product or substance that is-

(B) subject to voluntary corrective action taken by the manufacturer, in consultation with the Commission, of which action the Commission has notified the public or if the seller, distributor, or manufacturer knew or should have known of such voluntary corrective action;

(C) subject to an order issued under section 12 or 15 of this Act; or

(D) a banned hazardous substance within the meaning of section 2(q)(1) of the Federal Hazardous Substances Act (15 U.S.C. 1261(q)(1));(3) fail or refuse to permit access to or copying of records, or fail or refuse to establish or maintain records, or fail or refuse to make reports or provide information, or fail or refuse to permit entry or inspection, as required under this chapter or rule thereunder;(4) fail to furnish information required by section 2064 (b) of this title;(5) fail to comply with an order issued under section 2064 (c) or (d) of this title (relating to notification, to repair, replacement, and refund, and to prohibited acts);(6) fail to furnish a certificate required by this Act or any other Act enforced by the Commission, or to issue a false certificate if such person in the exercise of due care has reason to know that the certificate is false or misleading in any material respect; or to fail to comply with any requirement of section 14 (including the requirement for tracking labels) or any rule or regulation under such section;(7) fail to comply with any rule under section 2058 (g)(2) of this title (relating to stockpiling); [1](8) fail to comply with any rule under section 2076 (e) of this title (relating to provision of performance and technical data); [1](9) fail to comply with any rule or requirement under section 2082 of this title (relating to labeling and testing of cellulose insulation);[1](10)fail to file a statement with the Commission pursuant to section 2067 (b) of this title;[1](11)fail to furnish information required by section 2084 of this title.(b) ExceptionParagraphs (1) and (2) of subsection (a) of this section shall not apply to any person(1) who holds a certificate issued in accordance with section2063 (a) of this title to the effect that such consumer product conforms to allapplicable consumer product safety rules, unless such person knows thatsuch consumer product does not conform, or(2) who relies in good faith on the representation of the manufacturer or a distributor of such product that the product is not subject to an applicable product safety rule.(12) sell, offer for sale, distribute in commerce, or import into theUnited States any consumer product bearing a registered safetycertification mark owned by an accredited conformity assessment body,which mark is known, or should have been known, by such person to beused in a manner unauthorized by the owner of that certification mark;

(13) misrepresent to any officer or employee of the Commission thescope of consumer products subject to an action required under section12 or 15, or to make a material misrepresentation to such an officer oremployee in the course of an investigation under this Act or any otherAct enforced by the Commission; or

(14) exercise, or attempt to exercise, undue influence on a thirdparty conformity assessment body (as defined in section 14(f)(2)) withrespect to the testing, or reporting of the results of testing, of anyproduct for compliance under this Act or any other Act enforced by theCommission.

(15) export from the United States for purpose of sale any consumerproduct, or other product or substance regulated by the Commission(other than a consumer product or substance, the export of which ispermitted by the Secretary of the Treasury pursuant to section 17(e))that-

(A) is subject to an order issued under section 12 or 15 of this Actor is a banned hazardous substance within the meaning of section2(q)(1) of the Federal Hazardous Substances Act (15 U.S.C. 1261(q)(1));or

(B) is subject to a voluntary corrective action taken by themanufacturer, in consultation with the Commission, of which action theCommission has notified the public; or

(16) violate an order of the Commission issued under section 18(c).

Yes, I know that (12)-(16) should probably come before (c), and there probably should be a (2)(A). Don't like it? Write your congressperson.

[Update: While the CPSC has decided to forgo enforcing the CPSIA, the CPSC is not the agency that decides whether to prosecute felonies.]