The Consumer Product Safety Commission (CPSC) has set its sights on a small Oklahoma company. Despite Leachco Inc.’s excellent safety record, the CPSC says its baby pillow is a safety hazard. But the bureau’s narrative is aggressive, and its actions violate the Constitution’s separation of powers at every step.
In 1988, Jamie and Clyde Leach started a business in their hometown of Ada, Oklahoma, making products to help parents with the challenges of raising infants and young children. Since then, Leachco Inc.’s product lines have expanded, earning the trust of countless expectant mothers, families and caregivers.
But the CPSC threatens the future of small business with a liability theory that, if adopted, could wreak havoc among product manufacturers, distributors and retailers.
To make a bad situation worse, the CPSC is pursuing its allegations entirely internally. CPSC commissioners voted to initiate administrative proceedings against Leachco; CPSC staff took the case to an Administrative Law Judge (ALJ); and the commissioners themselves will consider any appeal of the ALJ’s decision. Like administrative proceedings within the federal government, such an internal “trial” bridges the gap against regulated parties and denies them their due process rights to a fair hearing before a neutral tribunal.
The Leaches are fighting back – defending their business and their constitutional rights.
The product at issue is the Podster, a lounge chair that Jamie, a registered nurse, developed for caregivers to safely secure a baby. The Podster is not a crib and is not intended for sleeping – in fact, as the CPSC itself concedes, Leachco has always given express warnings and instructions that the Podster should only be used when a baby is awake and is being watched by an adult.
Leachco has sold over 180,000 Podsters since the product launched in 2009. The Leaches themselves, and thousands of other families, have used Podsters safely.
But the CPSC alleges that two infant deaths, one in 2015 and one in 2018, prove it’s dangerous. In both cases, users ignored Leachco’s warnings and common sense.
In one instance, daycare staff violated state law and the daycare’s own regulations when they placed a baby in a Podster inside a crib and left the baby unattended for a while. over an hour and a half. The daycare lost its license and closed as a result. The other baby had been placed in the Podster and then placed on an adult bed, between the baby’s adult parents, with bedding and pillows, to sleep together – contrary to Leachco’s warnings and instructions.
Both tragic cases reflect improper use of the Podster, not a defect in the product itself. These facts obviously do not matter to the CPSC, which demanded that Leachco recall the Podster. According to the CPSC, the Podster poses a “substantial risk of injury” because it is “reasonably foreseeable” that caregivers would ignore Leachco’s warnings and misuse the Podster.
According to this legal theory, all manufacturers and retailers would be liable for injury caused by negligence or even intentional consumer abuse of a safe product, even when the manufacturer provided warnings and instructions on safe use. . This reinvention of product liability – based on the agency’s own non-binding “guidance” – would stunt innovation and shut down many companies on spurious grounds.
Rather than presenting this legal theory to an independent judge and jury, the CPSC itself will decide whether the CPSC has proven its case. Basically, the agency can serve as prosecutor, trial judge, jury, and appellate judge — virtually guaranteeing a biased process.
Indeed, after CPSC Commissioners voted to approve administrative action against Leachco, Commissioner Rich Trumka Jr. warned, “When companies refuse to recall products deemed fatal by CPSC staff, they must expect an administrative complaint to follow soon.
It is only after this administrative test that Leachco will be able to appeal to a real court. And even then, Leachco’s rights are restricted because the agency’s final decisions must be treated with deference. As a result, the independence of the reviewing court is undermined and Leachco’s right to a hearing before an independent judge is impaired.
The Leach family fights back. Represented by the Pacific Legal Foundation, Leachco sued in federal court challenging the CPSC’s unconstitutional farce and forcing the agency to take its allegations to an independent tribunal, regardless of its factual and legal findings. .
If there is any “danger” in all of this, it is not Leachco’s product. These are the abusive tactics of the CPSC. If the agency has a case, it must prove it in front of a judge and jury.
Oliver Dunford is a lawyer at Pacific Legal Foundation, a nonprofit legal organization that defends the freedoms of Americans when they are threatened by government excesses and abuses. Follow him on Twitter @ojdunford.