The Eastern District of Tennessee recently ruled that there is no private right of action under the Consumer Product Safety Act (CPSA) for an alleged violation of a voluntary product safety standard.[1] The ruling narrows the claims in a pending lawsuit about hoverboards and narrows potential CPSA exposure for all consumer product companies.
Consumer Product Safety Act
Enacted in 1972, the CPSA established the Consumer Product Safety Commission (CPSC) and gave CPSC the power to issue consumer product safety standards and rules. 15 U.S.C. §§ 2056, 2058. The CPSA creates a private right of action for “[a]ny person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission.” 15 U.S.C. § 2072(a). While the statute defines a “consumer product safety rule,” 15 U.S.C. § 2052(a)(6), it provides no clear guidance on what constitutes “any other rule or order issued by the Commission” in Section 2072(a).
Bruce v. Jet.com, Inc.
The plaintiffs in Bruce v. Jet.com, Inc. asserted a claim under the CPSA based on alleged violation of a voluntary product safety standard issued by a private safety organization. CPSC had urged companies in the hoverboard chain of distribution to comply with this voluntary safety standard in a 2016 letter. In the same letter, CPSC cautioned that hoverboards not meeting the voluntary safety standard “may present a substantial product hazard.”[2] The Bruce plaintiffs argued that this letter, with CPSC’s endorsement of the voluntary standard, serves as “any other rule or order.”
The court disagreed. It found that “[n]either the voluntary standards at issue nor the CPSC’s letter classify as ‘a consumer product safety rule, or other rule or order issued by the Commission.’”[3] Neither underwent the rulemaking procedure set out in the CPSA, and thus fall outside the limited private right of action permitted under the CPSA “To hold otherwise would circumvent the plain meaning of the statute and the CPSA’s own definitions.”[4]
The court dismissed the CPSA claim with prejudice, ridding Jet.com of that ground for liability in this case for good.
Industry Takeaway
The court’s decision provides welcome guidance on the scope of the CPSA’s private right of action. Although as a trial court order it provides only persuasive—not binding—authority, it helps limit the scope of private rights of action, particularly for voluntary standards where the applicability or mandatory nature of the standard is unclear.
[1] Bruce v. Jet.com, Inc., No. 2:19-CV-00175-DCLC, 2020 WL 5144692, at *5 (E.D. Tenn. Aug. 31, 2020).
[2] Id.at *3.
[3] Id. at *5 (quoting 15 U.S.C. § 2072(a)).
[4] Id.