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.

Join the new civil liberties movement. Protect Americans from the Administrative State!

CASE STATUS: Active

CASE START DATE: February 20, 2020

DECIDING COURT: N/A

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

CASE DOCUMENTS

August 7, 2020 | Petitioner’s Reply Brief
Click here to read the full document.
May 18, 2020 | Petitioner’s Opening Brief
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
Click here to read the full document.

PRESS RELEASES

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

MEDIA MENTIONS