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

CASE 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 is helping 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 asks the Court to review and vacate a recent CPSC Direct Final Rule (Rule), which incorporates by reference (and thus makes 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 does 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 charges $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 has been incorporated by reference must pay the purchase price ASTM sets—a deeply arbitrary and capricious policy that allows a private organization to hold a monopoly over access to a binding legal standard.

NCLA argues 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 violates 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.

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CASE STATUS: Active

CASE START DATE: February 20, 2020

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

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

CASE DOCUMENTS

February 18, 2021 | Order Transferring Case to the U.S. Court of Appeals for the District of Columbia
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October 13, 2020 | Petitioner’s Brief in Response to This Court’s October 2 Order
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October 2, 2020 | Order to Remove the Case From the Court’s Calendar for October 22, 2020 and Rescheduled Before Another Panel
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August 7, 2020 | Petitioner’s Reply Brief in the U.S. Court of Appeals for the Third Circuit
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July 24, 2020 | Brief of Amici Curiae American National Standards Institute; National Fire Protection Association, Inc.; American Society of Civil Engineers; American Society of Heating, Refrigerating, and Air Conditioning Engineers; International Association of Plumbing & Mechanical Officials; International Code Council; International Electrotechnical Commission; International Organization for Standardization; National Electrical Manufacturers Association; and North American Energy Standards Board in Support of Respondent and Denial of Petition for Review
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July 24, 2020 | Brief Amicus Curiae of American Society for Testing and Materials in Support of Respondent
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July 17, 2020 | Brief for Respondent on Petition for Review of a Direct Final Rule of the Consumer Product Safety Commission
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May 29, 2020 | Response to Plaintiff’s Motion for Leave to File Supplemental Appendix and Conditional Cross-motion to File Supplemental Material
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May 29, 2020 | Brief Amicus Curiae of Administrative Law Professors Cynthia Farina, Michael Herz, Nina Mendelson, Gillian Metzger, Alan Morrison, Todd Rakoff, Peter Shane, Sidney Shapiro, and Daniel Walters in Support of Neither Party
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May 18, 2020 | Petitioner’s Opening Brief
May 13, 2020 | Motion for Leave to File Supplemental Appendix
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PRESS RELEASES

February 24, 2021 | Watch: NCLA Case Video Reveals How CPSC Hides Safety Standards from Public Behind Paywall

Washington, DC (February 24, 2021) – A video released today by the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, reveals a mother’s fight to see the law. NCLA represents Lisa Milice in her petition to the U.S. Court of Appeals for the D.C. Circuit to require the Consumer Product Safety Commission (CPSC) to make the safety standards for infant bath seats freely available to the public. Government is supposed to be transparent, but CPSC is keeping consumers in the dark by allowing a third-party organization to hide the law behind a paywall.

Mrs. Milice was researching CPSC’s safety standards on its website before purchasing an infant bath seat when she hit a wall—a third party paywall—demanding she fork over $58 to get a copy of those safety rules. To see the safety standard, she would have to pay ASTM International, a private standard development organization, twice the cost of the infant bath seat she was looking to purchase.

CPSC cannot charge for access to the law because the law in its entirety belongs to the citizenry. Secret law also violates the rights secured by the First Amendment, which protects the right to petition the government, and the Due Process Clause, which requires that people have notice of their legal obligations. In hiding the law behind a paywall, CPSC violated the Commission’s own organic statute, the Freedom of Information Act, and the Administrative Procedure Act. These laws require that CPSC make its binding safety standards reasonably available to the public.

It’s astounding that Americans have to fight in court for their right to see the government’s binding regulations. NCLA is determined to make any legally binding standard freely accessible to the public.

Excerpts from the video: 

“The way our Republic is set up is the citizens are the government. So, when the government makes a law, they’re making it for the citizens. The government can’t keep the law from the citizens because the citizens are the government.” 

— Jared McClain, Litigation Counsel, NCLA 

“It may be easier for the administrative state to outsource the rule writing process to safety organizations and standard-writing organizations, but that doesn’t mean that they can hide the law from the rest of us.”  

— Mark Chenoweth, Executive Director & General Counsel, NCLA  

“I want to bring awareness to the general public that this information is held behind a paywall, and by partnering with NCLA—and I hope that by winning this case—we will be able to make those safety standards free to the public. It’s important because it’s the safety of our children at stake.”  

— Lisa Milice, NCLA client & petitioner in Lisa Milice v. Consumer Product Safety Commission  

For more information about this case visit here.

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document 

August 7, 2020 | NCLA Brief Responds to CPSC and ASTM Excuses for Keeping Consumers in the Dark on Safety

Washington, DC (August 7, 2020) – “Buyer Beware” takes on a whole new meaning if you wish to see the U.S. Consumer Product Safety Commission’s (CPSC) safety standards for a product before purchasing it. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, today filed a reply to the government’s brief in the case of Lisa Milice v. U.S. Consumer Product Safety Commission, taking the CPSC to task over the practice of keeping its standards hidden behind a private paywall.

NCLA client and new mom Lisa Milice is asking the U.S. Court of Appeals for the Third Circuit to require CPSC to meet its legal duty to provide the public free and guaranteed access to CPSC’s binding product safety standards. Ms. Milice, who was looking to purchase an infant bath seat, asked CPSC to let her see a copy of its safety standard for infant bath seats. The Commission advised Milice that she would have to purchase a copy of the standard through ASTM, a private organization that specializes in creating safety standards, for $56.00—about twice the cost of an infant bath seat (which costs approximately $30.00).

CPSC defends its practice by claiming it has no choice but to hide the law from the public because it must respect ASTM’s copyright above all else. However, a third party’s copyright interests do not in any way justify the Commission’s violating the constitutional rights of consumers. NCLA argues 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.

In response to NCLA’s lawsuit, ASTM has indicated its willingness to voluntarily make a read-only version of the standard available for free on its own website. But there is currently no legal mechanism to compel the company to provide access to its standards freely—or at all on the government’s behalf. In fact, ASTM can ignore or exclude participants, remove its standards from its website, or even increase its prices exponentially—all without legal recourse.

Hiding the law behind a paywall violates due process. Ms. Milice asks this Court to order CPSC to make any binding standards permanently accessible to the public for free.

NCLA released the following statements:

“Ms. Milice does not have—and should not have—an interest in how CPSC and ASTM resolve their copyright dispute. If the agency created such a conundrum by outsourcing its functions to a private entity, it is exclusively the government’s responsibility to fix the problem without violating citizens’ rights. Secret law does more than undermine consumer choice and violate the Freedom of Information Act (FOIA), it also violates the Constitution.”

— Caleb Kruckenberg, Litigation Counsel, NCLA

“It’s astounding to see our U.S. government stand up in court and tell a concerned citizen that she has no right to see the law unless she pays a private party for access to it. Most people can feel in their gut that the right thing to do here is to allow free access to these safety standards, so that Ms. Milice and other consumers can decide how best to keep their infants safe from harm.”

— Jared McClain, Staff Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

May 18, 2020 | NCLA Asks Third Circuit to Put an End to CPSC’s Unconstitutional Pay-Per-View Law Scheme

Washington, DC (May 18, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group filed an opening brief today 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 is helping 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 asks the Court to review and vacate a recent CPSC Direct Final Rule (Rule), which incorporates by reference (and thus makes 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 does 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 charges $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 has been incorporated by reference must pay the purchase price ASTM sets—a deeply arbitrary and capricious policy that allows a private organization to hold a monopoly over access to a binding legal standard.

NCLA argues 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 violates 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.

CPSC’s scheme infringes due process of law that requires that people have notice of their legal obligations. It also violates the First Amendment, which protects the right to petition the government, which one cannot do with regard to the infant bath seats rule without knowing what it contains.

By refusing to publish the safety standard that the Rule incorporates, CPSC has de facto created a pay-per-law service run by a private monopolist. This attempt to privatize ownership of the law is contrary to our basic form of government.

NCLA’s brief asks the Third Circuit to vacate the Rule, order CPSC to make any binding standard freely accessible to the public whenever CPSC prepares to promulgate a new rule, and order CPSC to make any final rule that CPSC adopts available for free on a permanent basis.

NCLA released the following statements:

“Hiding the law from the public so that they have no idea how to comply with it or how it might protect them is something we expect from dictators, not our own government. CPSC’s legal paywall is an affront to the constitution.”

Caleb Kruckenberg, Litigation Counsel, NCLA

“All you need to decide this case are the first three words of the Constitution’s Preamble: ‘We the People.’ The people are the government; we own the laws. CPSC has no constitutional authority to let some private organization sell our own laws back to us.”

Jared McClain, Staff Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Click here to download

OPINION

BLOGS

March 5, 2021 | The Real Cost of CPSC’s Hidden Law to New Parents by Kara Rollins

As I have recently found out, there are many things to worry about as a new or expecting parent. The joy of welcoming a new life into the world can easily be eclipsed by a wide range of concerns. Not to mention, the nearly herculean task of not following the siren call of an entire baby product industry that preys on parental anxiety.

At the end of the day, for many new and expecting parents like myself, there is one concern we go back to. “Is this safe for my child?”

I incorrectly assumed that the answer to that question was a simple “yes” or “no.” But the answer is more complicated than that. The Consumer Product Safety Commission (CPSC) has mandatory safety rules and standards for some 25 so-called durable infant and toddler products, which include everything from cribs to infant carriers.

But these safety standards—despite being the law—are not readily accessible as they are locked behind a paywall of a private organization, ASTM International. How can the law be hidden? More easily than you can imagine. The CPSC and other agencies use a regulatory practice called “incorporation by reference” that allegedly permits an agency to outsource the development of standards to be incorporated into a final rule or regulation.

NCLA is currently challenging CPSC’s use of incorporation by reference on behalf of our client, Lisa Milice, who like me, just wanted to know if the product she was purchasing for her baby was safe. Last week, I eagerly watched NCLA’s “Hiding Behind a Paywall” Lunch & Law where my colleague, Jared McClain, spoke with Professor Nina Mendelson of the University of Michigan Law School and Adina Rosenbaum of Public Citizen Litigation Group about the Milice case and the problems that arise when the government puts laws and regulations behind a paywall.

Later that night, as my husband and I unpacked our convertible bassinet and travel crib, I was greeted with some now-familiar words: “This product complies with ASTM F2194-13” and “This product complies with ASTM F406-19.” Turns out our combination bassinet and crib was not one, but two durable infant products. I checked the cost to view the standards, $151 for both or roughly the average price of this type of product. Thank goodness I did not buy the combination bassinet, pack-and-play, and changing station. It would be three durable infant products and cost $209 to view all standards that apply—more than the product itself.

This got me thinking, how much would it cost to view all the durable infant and toddler product standards—which, again, are the law—that may impact my purchasing decisions over the first years of my child’s life? As the chart below shows, $1,598.

 

 

The total cost to view the all 25 standards is two to three times more than the cost of diapers for a year, nearly twice the national average cost for a month of daycare, or about 12% of the total cost of raising a child in their first year.

And the calculation above does not include many items parents purchase that also incorporate standards by reference—infant toys and pacifiers to name a couple. For instance, pacifiers are subject to both the U.S. Toy Standard and standards regarding levels of certain carcinogens in rubber pacifiers. The latter of which is incorporated by reference in the U.S. Toy Standard, or as I prefer to think of it, incorporation by inception. As with the others, these standards for pacifiers do not come cheap either, running $157 total for the two or roughly 26 times the cost of a rubber pacifier. Moreover, it is not even clear that the carcinogen standard is still in effect, as ASTM’s standard was withdrawn in 2020. But there is no way to check this without purchasing and reviewing the standards.

The price to access the law is too high. But as NCLA argued in its opening brief in the Milice case, the CPSC’s failure to make certain standards freely accessible to the public also violates the Constitution of the United States, the CPSC’s organic statute (i.e., the statute that created the CPSC), and the Freedom of Information Act. The public has a right to know what the law is, and consumers make better purchasing decisions when they know what standards apply. Right now, the CPSC is stopping either from happening. As Chief Justice Roberts recently declared, “no one can own the law.” It is time for the courts to recognize that principle for CPSC’s standards as well.

February 19, 2021 | One Mother’s Fight to See the Law by Jared McClain

When mother-to-be Lisa Milice was researching nursery products to buy for her first child, she ran into a paywall. The problem was that, although the U.S. Consumer Product Safety Commission adopts binding safety standards for infant and nursery products, consumers cannot actually see those standards. CPSC incorporates by reference a standard set by a private organization like ASTM International.  For the right to view the binding law, interested persons must purchase a copy of the law directly from ASTM.

Although any price to see the law is too high—just ask lawyers and journalists how quickly PACER’s 10 cents per page adds up for court filings—the price to see safety standards often exceeds the price of the products regulated by those safety standards. Take Lisa’s case, for instance. She was looking to buy a bath seat from Pottery Barn for about $35. A copy of the safety standard that applies to that bath seat costs $58. The only alternative to paying $58 is to drive, fly, or otherwise travel to Bethesda, Maryland, to CPSC’s “reading room,” which CPSC assures us really exists and is not, in fact, a figment of CPSC’s imagination. Once in the reading room, consumers must read, and apparently memorize—not photograph or copy—a copy of the standard.

The Public Can’t Participate in Rulemaking Without Access to the Proposed Rules

Some consumers may be so trustful of the government that feel content relying on safety standards they’ve never seen. The standards, to be fair, are often very technical in nature and could seem impenetrable to an untrained eye. But any trust in the government’s binding safety standards should come from the public nature of rulemaking process. Before CPSC can promulgate a new standard, the Administrative Procedure Act (APA) requires the agency to subject the standard to “notice and comment” rulemaking, a period during which the general public and affected manufacturers alike can critique the standard and offer feedback on the agency’s proposal. That rulemaking period, however, is useless unless the proposed standard available for viewing.

Lisa’s case is a helpful guide on this point too. When CPSC proposed the safety standard for bath seats, the new standard was a revision to the 2013 version of the same standard. Neither the 2013 nor the proposed update (from 2019) were available for public view. And Lisa’s case revealed that ASTM, the company who created the standard, sent CPSC a redline version showing the changes to the new standards. There were two problems with the redline, though. For one, much like the standards it compared, the redline was also not freely available to the public. And the other issue with the redline was that ASTM compared its 2019 standard to the 2017 version, which CPSC had never adopted into a binding rule. So, even if an interested person were to fork over $69 to ASTM to see the redlined version, it would tell them exactly nothing about how the 2019 version compared to the 2013 version that CPSC had made law.

Without any practical way to see the proposed ways in which the standard would change, affected persons were left to rely on CPSC’s summary, which was also useless. For example, CPSC summarized for the public that the new standard corrects “dimensioning errors” that existed in the 2013 standard. That summary tells affected persons next to nothing. We don’t know what those errors were, the magnitude or effect of the errors, or what the new dimensions are. Nor do we know what types of contacts with the tub led the bath seat to fail—only that some did, in fact, lead to failures. Sounds bad, but we just have to take CPSC’s word that the 2019 version corrects those problems the agency missed back in 2013. Maybe if the 2013 version wasn’t kept secret during (and after) the rulemaking process, those errors wouldn’t have persisted until 2019.

“No One Can Own the Law”

Beyond all the technical and practical problems with CPSC’s rulemaking, a broader issue remains at the heart of Lisa’s case and at the heart of our form of government. Although no court has yet addressed this precise issue, courts for centuries—and several more recently—have recognized that our constitutional republic requires the citizenry to have free access to the law. In a recent copyright case, Chief Justice Roberts declared for the Court that “no one can own the law.”

How, then, can CPSC grant ASTM a monopoly to charge for access to binding safety standards? Federal agencies and ASTM would answer that CPSC cannot publish the standards online because ASTM owns a copyright of the standard. But that answer evades the question. If the government wants to adopt a private standard into the public law, it becomes the government’s responsibility to make the law publicly available.

Secret law violates the Constitution in several ways. First, it is a structural issue. The government, after all, is the people, and it cannot keep the law secret from the people. Its decision to do so also violates personal liberties. Moreover, the First Amendment protects “free discussion of governmental affairs,” as well as freedom of the press and the right to petition the government. Each of these rights is diminished if the citizenry cannot access the law. And relatedly, due process requires free access to the law. Notice of the law’s contents is a core tenet of due process. Without access to the law, those affected by the law are denied notice of what the law requires. Another due-process right is to participate in the political process, which, again, is undermined without knowledge of what the law says. CPSC’s failure to provide public access to its binding safety standards violates all these constitutional rights.

Lisa Milice’s Day in Court

Back in March 2020, NCLA filed a petition on Lisa’s behalf in the U.S. Court of Appeals for the Third Circuit to review CPSC’s failure to provide access to its bath-seat rule, as was her right under 15 U.S.C. § 2060. She argued, in part, that the safety standard was not “reasonably available” as the Freedom of Information Act and APA require because CPSC requires everyone to drive to Bethesda to see the law. But in a cruelly ironic twist, the Third Circuit pulled her case from the oral-argument calendar just days before her hearing date, ruling that anyone who wants to challenge CPSC’s practice would have to travel to Washington, D.C. to do so. In what appears to be a misunderstanding of how the Consumer Product Safety Improvement Act affected the right to review safety standards, the Third Circuit ruled that only the U.S. Court of Appeals for the D.C. Circuit has jurisdiction to review challenges to CPSC’s secret safety standards. With the case now transferred to D.C. Circuit, Lisa still awaits her day in court to shine light on CPSC’s secret regulations. Now, she’ll just have to travel to D.C. to have her day in court. But at least she can finally make it to CPSC’s reading room while she’s in the area—if that reading room really exists.

MEDIA MENTIONS