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Milice v. Consumer Product Safety Commission

CASE: Lisa Milice v. U.S. Consumer Product Safety Commission

STATUS: Closed

NCLA ROLE: Counsel

COURTS HEARD IN: 3rd Cir., D.C. Cir.

ORIGINAL COURT: U.S. Court of Appeals for the Third Circuit

DECIDING COURT: U.S. Court of Appeals for the District of Columbia Circuit

OPENED: February 20, 2020

AGENCIES: Consumer Product Safety Commission


Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Did we achieve our litigation objective? No. Lisa Milice still must pay to access CPSC’s Safety Standard for Infant Bath Seats.

Court Outcome: Although NCLA argued that the government cannot charge citizens for access to the law, a three-judge panel denied Milice’s ability to challenge the rule because she had not first filed an adverse comment with the agency

Larger Impact: The Constitution requires that Americans have cost-free access to the law. Nonetheless, CPSC is continuing to charge for access to the safety standards, forcing Americans to pay to see a law they must obey.

Summary: NCLA filed an opening brief in the U.S. Court of Appeals for the Third Circuit on behalf of client Lisa Milice against the U.S. Consumer Product Safety Commission (CPSC). NCLA helped Milice, a new mother, challenge CPSC’s practice of keeping consumer product safety standards hidden behind a private paywallLegal scholar Peter L. Strauss, the Betts Professor Emeritus of Law at Columbia Law School, joined NCLA on the brief.

The brief asked the Court to review and vacate a recent CPSC Direct Final Rule (Rule) incorporating by reference (and thus making mandatory) a voluntary safety standard for infant bath seats.

Milice, a potential infant bath seat purchaser, asked CPSC to let her see a copy of its Safety Standard for Infant Bath Seats. The Commission responded that it did not allow people to see the Rule and directed her to buy a copy from ASTM International, a private organization that specializes in creating safety standards. ASTM was charging $56.00 for a copy of the law—about twice the cost of an infant bath seat. According to CPSC, any person interested in viewing one of the Commission’s safety standards that had been incorporated by reference had to pay the purchase price ASTM sets—a deeply arbitrary and capricious policy allowing a private organization to hold a monopoly over access to a binding legal standard.

NCLA argued that CPSC (or any other government agency, for that matter) cannot charge for access to the law because citizens are the government and the authors of the law—and the law in its entirety belongs to the citizenry. CPSC’s failure to make a copy of the Rule freely accessible to the public violated the requirement in the Commission’s organic statute that CPSC must publish the text of its rules. The Commission’s scheme also violated the Freedom of Information Act and the Administrative Procedure Act’s guarantees that materials incorporated by reference into agency rules be reasonably available to the public.

Plaintiff Lisa Milice kisses her son


Petition for Panel Rehearing & Rehearing En Banc

August 16, 2021 | Read More

Opinion of the U.S. Court of Appeals for the District of Columbia Circuit

July 2, 2021 | Read More

Order Transferring Case to the U.S. Court of Appeals for the District of Columbia

February 18, 2021 | Read More

Petitioner’s Brief in Response to This Court’s October 2 Order

October 13, 2020 | Read More

Order to Remove the Case From the Court’s Calendar for October 22, 2020 and Rescheduled Before Another Panel

October 2, 2020 | Read More


NCLA Asks D.C. Circ. to Rehear Rules Behind Paywalls Case on Timing of Direct Final Rule Challenges

August 16, 2021 | Read More

Watch: NCLA Case Video Reveals How CPSC Hides Safety Standards from Public Behind Paywall

February 24, 2021 | Read More

NCLA Brief Responds to CPSC and ASTM Excuses for Keeping Consumers in the Dark on Safety

August 7, 2020 | Read More

NCLA Asks Third Circuit to Put an End to CPSC’s Unconstitutional Pay-Per-View Law Scheme

May 18, 2020 | Read More


CPSC manufacturing rules must be free to the public, D.C. Circuit told


May 12, 2023

Baby Bath Seats Inspire Court Fight on Safety-Standard Access

Courthouse News Service

February 7, 2023

CPSC manufacturing rules must be free to the public, D.C. Circuit told


February 7, 2023

Access, Copyright Fight Over Safety Standard Jumps to D.C. Cir.


February 7, 2023




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