Defending People

the tao of criminal-defense trial lawyering

CPSIA">Criminal Liability Under the CPSIA

Fol­low­ing Wal­ter Olson’s (Over­lawyered) posts about the Con­sumer Prod­uct Safety Improve­ment Act of 2008, I thought I’d check out the crim­i­nal penal­ties for vio­la­tion of the CPSIA.

Con­trast this:

Any per­son who know­ingly and will­fully vio­lates sec­tion 2068 of this title after hav­ing received notice of non­com­pli­ance from the Com­mis­sion shall be fined not more than $50,000 or be impris­oned not more than one year, or both.

(15 USC §2070 before its amend­ment by Sec­tion 217 of the CPSIA)

and this:

Vio­la­tion of sec­tion 2068 of this title is pun­ish­able by— (1) impris­on­ment for not more than 5 years for a know­ing and will­ful vio­la­tion of that sec­tion; (2) a fine deter­mined under sec­tion 3571 of title 18, United States Code; or (3) both.

(15 USC §2070 as amended by Sec­tion 217 of the CPSIA).

Vio­la­tions of Sec­tion 2068 are now pun­ish­able by up to five years in prison, instead of one year, and a fine of up to $250,000 (sec­tion 3571’s max­i­mum felony fine), instead of $50,000; a per­son need not have received notice of non­com­pli­ance before crim­i­nal penal­ties apply; and there is now strict lia­bil­ity under sec­tion 2068 — vio­la­tions that are not will­ful and know­ing may result in huge fines.

So what sort of con­duct will invite a pos­si­ble 5-year prison sen­tence if engaged in know­ingly and will­fully, or a fine otherwise?

Here’s how sec­tion 2068 will look after amendment:

(a)Des­ig­na­tion

It shall be unlaw­ful for any per­son to—
(1) sell, offer for sale, man­u­fac­ture for sale, dis­trib­ute in com­merce, or import into the United States any con­sumer prod­uct, or other prod­uct or sub­stance that is reg­u­lated under this Act or any other Act enforced by the Com­mis­sion, that is not in con­for­mity with an applic­a­ble con­sumer prod­uct safety rule under this Act, or any sim­i­lar rule, reg­u­la­tion, stan­dard, or ban under any other Act enforced by the Commission;

(2) sell, offer for sale, man­u­fac­ture for sale, dis­trib­ute in com­merce, or import into the United States any con­sumer prod­uct, or other prod­uct or sub­stance that is—

(B) sub­ject to vol­un­tary cor­rec­tive action taken by the man­u­fac­turer, in con­sul­ta­tion with the Com­mis­sion, of which action the Com­mis­sion has noti­fied the pub­lic or if the seller, dis­trib­u­tor, or man­u­fac­turer knew or should have known of such vol­un­tary cor­rec­tive action;

(C) sub­ject to an order issued under sec­tion 12 or 15 of this Act; or

(D) a banned haz­ardous sub­stance within the mean­ing of sec­tion 2(q)(1) of the Fed­eral Haz­ardous Sub­stances Act (15 U.S.C. 1261(q)(1));

(3) fail or refuse to per­mit access to or copy­ing of records, or fail or refuse to estab­lish or main­tain records, or fail or refuse to make reports or pro­vide infor­ma­tion, or fail or refuse to per­mit entry or inspec­tion, as required under this chap­ter or rule thereunder;

(4) fail to fur­nish infor­ma­tion required by sec­tion 2064(b) of this title;

(5) fail to com­ply with an order issued under sec­tion 2064(c) or (d) of this title (relat­ing to noti­fi­ca­tion, to repair, replace­ment, and refund, and to pro­hib­ited acts);
(6) fail to fur­nish a cer­tifi­cate required by this Act or any other Act enforced by the Com­mis­sion, or to issue a false cer­tifi­cate if such per­son in the exer­cise of due care has rea­son to know that the cer­tifi­cate is false or mis­lead­ing in any mate­r­ial respect; or to fail to com­ply with any require­ment of sec­tion 14 (includ­ing the require­ment for track­ing labels) or any rule or reg­u­la­tion under such sec­tion;

(7) fail to com­ply with any rule under sec­tion 2058(g)(2) of this title (relat­ing to stock­pil­ing); [1]

(8) fail to com­ply with any rule under sec­tion 2076(e) of this title (relat­ing to pro­vi­sion of per­for­mance and tech­ni­cal data); [1]

(9) fail to com­ply with any rule or require­ment under sec­tion 2082 of this title (relat­ing to label­ing and test­ing of cel­lu­lose insu­la­tion);[1]

(10)fail to file a state­ment with the Com­mis­sion pur­suant to sec­tion 2067(b) of this title;[1]

(11)fail to fur­nish infor­ma­tion required by sec­tion 2084 of this title.

(b) Excep­tion
Para­graphs (1) and (2) of sub­sec­tion (a) of this sec­tion shall not apply to any per­son

(1) who holds a cer­tifi­cate issued in accor­dance with sec­tion
2063(a) of this title to the effect that such con­sumer prod­uct con­forms to all
applic­a­ble con­sumer prod­uct safety rules, unless such per­son knows that
such con­sumer prod­uct does not con­form, or
(2) who relies in good faith on the rep­re­sen­ta­tion of the man­u­fac­turer or a dis­trib­u­tor of such prod­uct that the prod­uct is not sub­ject to an applic­a­ble prod­uct safety rule.

(12) sell, offer for sale, dis­trib­ute in com­merce, or import into the
United States any con­sumer prod­uct bear­ing a reg­is­tered safety
cer­ti­fi­ca­tion mark owned by an accred­ited con­for­mity assess­ment body,
which mark is known, or should have been known, by such per­son to be
used in a man­ner unau­tho­rized by the owner of that cer­ti­fi­ca­tion mark;

(13) mis­rep­re­sent to any offi­cer or employee of the Com­mis­sion the
scope of con­sumer prod­ucts sub­ject to an action required under sec­tion
12 or 15, or to make a mate­r­ial mis­rep­re­sen­ta­tion to such an offi­cer or
employee in the course of an inves­ti­ga­tion under this Act or any other
Act enforced by the Com­mis­sion; or

(14) exer­cise, or attempt to exer­cise, undue influ­ence on a third
party con­for­mity assess­ment body (as defined in sec­tion 14(f)(2)) with
respect to the test­ing, or report­ing of the results of test­ing, of any
prod­uct for com­pli­ance under this Act or any other Act enforced by the
Commission.

(15) export from the United States for pur­pose of sale any con­sumer
prod­uct, or other prod­uct or sub­stance reg­u­lated by the Com­mis­sion
(other than a con­sumer prod­uct or sub­stance, the export of which is
per­mit­ted by the Sec­re­tary of the Trea­sury pur­suant to sec­tion 17(e))
that—

(A) is sub­ject to an order issued under sec­tion 12 or 15 of this Act
or is a banned haz­ardous sub­stance within the mean­ing of sec­tion
2(q)(1) of the Fed­eral Haz­ardous Sub­stances Act (15 U.S.C. 1261(q)(1));
or

(B) is sub­ject to a vol­un­tary cor­rec­tive action taken by the
man­u­fac­turer, in con­sul­ta­tion with the Com­mis­sion, of which action the
Com­mis­sion has noti­fied the pub­lic; or

(16) vio­late an order of the Com­mis­sion issued under sec­tion 18(c).

Yes, I know that (12)-(16) should prob­a­bly come before (c), and there prob­a­bly should be a (2)(A). Don’t like it? Write your congressperson.

[Update: While the CPSC has decided to forgo enforc­ing the CPSIA, the CPSC is not the agency that decides whether to pros­e­cute felonies.]

Share

Tags:


This entry was posted by on Friday, January 30th, 2009 at 10:25 pm and is filed under federal criminal defense. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

About The Author

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.

Comments

5 Responses to “Criminal Liability Under the CPSIA”

  1. CPSIA stay II says:
    31 January 2009 at 9:32 am

    […] falls short of solv­ing the CPSIA prob­lem, while leav­ing prod­uct mak­ers and retail­ers exposed in seri­ous legal ways over the next twelve months as well as […]

    Reply
  2. Handmade Toy Alliance wins a stay « Off the Kuff says:
    7 February 2009 at 7:44 am

    […] to all this. And finally, where there’s crime there’s defense attor­neys, and so we have Mark Ben­nett exam­in­ing the crim­i­nal lia­bil­i­ties under the CPSIA. May it never come to that for the HTA’s […]

    Reply
  3. CPSIA chronicles, February 27 says:
    27 February 2009 at 10:50 am

    […] not in com­pli­ance and ‘poi­son­ing’ our chil­dren with lead. Are these stores not fac­ing strict lia­bil­ity and risk­ing felony crim­i­nal lia­bil­ity includ­ing 5 years in prison and $250,000 fine… The stay by the CPSC doesn’t help the pen-makers or sell­ers, because they’re in knowing […]

    Reply
  4. CPSIA “people’s hearing” in D.C. April 1, and other protests says:
    16 March 2009 at 9:37 am

    […] In the pow­er­sports world, Deal­erNews reports that on March 19 — that’s this com­ing Thurs­day — “Cal­i­for­nia motor­cy­cle dealer and indus­try icon Mal­colm Smith says he plans to sell kid’s ATVs and motor­cy­cles to con­sumers” in defi­ance of the law. No word yet on whether or not PIRG or Pub­lic Cit­i­zen will try to have him arrested, but the penal­ties for will­ful vio­la­tion of the law include five-year prison sen­tences as well as pro­hib­i­tive fines. […]

    Reply
  5. Shopfloor » Blog Archive » CPSIA Update: Bringing the Hearing to Congress says:
    16 March 2009 at 6:40 pm

    […] Hat tip, Wal­ter Olson at Over­lawyered, who notes other CPSCIA devel­op­ments: In the pow­er­sports world, Deal­erNews reports that on March 19 — that’s this com­ing Thurs­day — “Cal­i­for­nia motor­cy­cle dealer and indus­try icon Mal­colm Smith says he plans to sell kid’s ATVs and motor­cy­cles to con­sumers” in defi­ance of the law. No word yet on whether or not PIRG or Pub­lic Cit­i­zen will try to have him arrested, but the penal­ties for will­ful vio­la­tion of the law include five-year prison sen­tences as well as pro­hib­i­tive fines. […]

    Reply

Leave a non-anonymous Reply

«     »