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

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.

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.