CPSIA - Rereading the Phthalates Decision

As my head continues to spin from the CPSC's new "anthing goes" notion of their "enforcement discretion", I had occasion to reread the decision in the phthalates case. In that case, the CPSC apparently cited 15 USC §2058 to justify its conclusion that the phthalates ban should be interpreted to apply prospectively. The court pointed out that Section 2058 only applies to rules promulgated by the CPSC, NOT by Congress. The ruling states: "Finally, section 2058 provides that the CPSC 'may by rule amend or revoke' any consumer product safety standard. Id. §2058(h). None of [the Section 2058] provisions could apply to a consumer product safety standard mandated by Congress. . . . And absent express Congressional authorization, the CPSC does not have the power to override Congress and revoke or amend the phthalate ban through a rulemaking."

Apparently, the Southern District of New York doesn't know about the mysterious power of the CPSC to exercise "enforcement discretion"!

The court had other things to say on this subject: "In the CPSIA, Congress made it unlawful for any person to 'offer for sale' or 'distribute in commerce' children's products containing phthalates after the effective date. . . . The CPSC decision purports to allow exactly that. The specific phthalate ban in the law must control; otherwise, Congress' express prohibition on sale or distribution in commerce would have no meaning." Where have I heard that before???

Side note: Dearest Senators, you may be interested to know that the law of the land applies to you, too. While in your letter, you float the wishful thought that the CPSC may exercise its "discretion" to override the parts of your terrible law that you have come to regret, but, ahem, the laws that govern us all, even you, prevents the CPSC from saving you. You have to do the dirty work of changing the law yourself to avoid the terrible result you have wrought. And, in a delicious irony, your pals the consumer groups, helped make the law which compels you to act. For once, I applaud the assistance of the consumer groups!

Read in light of the ATV "enforcement discretion" decision, the phthalates court decision is downright humorous. Consider this footnote: "The Supreme Court has also noted that Congress 'does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions - it does not, one might say, hide elephants in mouseholes.' . . . 'The language of the statute may not be distorted under the guise of construction, or so limited by construction as to defeat the manifest intent of Congress.'" You have GOT to be kidding! And what if Congress changes its mind after it does something dumb? Can it send a letter and retroactively reset its intent to justify some different outcome . . . or must it tediously go through that awful legislative process with all that embarrassing visibility, debate and so on to fix it? A letter would be quicker, of course.

I find it fascinating that the CPSC used arguments in the phthalates case that the retroactivity of the lead standards was different (and unyielding): "The CPSC argues that Congress should have designed products with phthalates as 'banned hazardous substances' [under the FHSA] if it wanted the ban to operate 'retroactively'". Presumably, the CPSC arguments were crafted before the discovery of "enforcement discretion". Had only the CPSC presented arguments to the court that it was exercising "enforcement discretion" on the retroactivity of the phthalates ban, it would have . . . been laughed out of court?

One last thing: it's probably worth a quick re-read of Cheryl Falvey's famous September 12, 2008 opinion letter on the retroactive effect of the lead standards. I hope the CPSC takes care to distinguish the reasoning in this letter and the court case above to help us all understand how the rules of the game are being administered rationally and predictably. I think that would realy help us all.