Mark Chenoweth and John Vecchione welcome Kara Rollins to unpack her latest brief challenging the Consumer Product Safety Commission’s attempt to expand “durable infant products” regulations. They reveal how CPSC skipped statutory safeguards, stretched definitions, and ignored key data in its rush to regulate popular baby loungers—and why this case could rein in agency overreach.

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If you think that unwritten law doesn't affect you, think again. Whether you're a business owner or a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they're really restricting your liberty without the consent of the governed.

Mark Chenoweth

Welcome to Unwritten Law. It's Mark Chenowith with John Vecchione, and we are joined by our colleague Kara Rollins, who just filed a brief in a case that, you've been on. You've been on the CPSC for a while over this issue, Kara, but I think this reply brief, has some, some really good points in it that we need to go over.

Mark Chenoweth

This is the the Heros Technology case. Remind our audience what's going on in that case.

Kara Rollins

Mark Chenoweth

A shortcut.

Kara Rollins

A shortcut. Yeah, they don't have to do the same... Even in comparison to the APA, in order for the CPSC to pass a standard, they have a much higher threshold of things like data and evidence that they have to establish in order to regulate a product.

Mark Chenoweth

But here, Congress said, look for this list of products cribs, play yards, some some durable products, We want you to go ahead and things that are go regulate.

Kara Rollins

Yeah, if you look at the list, and there's 12 items in the list that Congress set out, we're talking plastic ...

Mark Chenoweth

The durable dozen.

Kara Rollins

The durable dozen. Oh, I like that! I'm going to use it. It's effectively wood, plastic, metal as like the main component that they're made out of. Well, as agencies are want to do, there's always this regulatory creep. They always want more power. Agencies, as I was call then Hungry Hungry Hippos, you know, or give a mouse a cookie. I mean, you can use a lot of child analogies here to say once they have power, they always want more because they want to justify their continued existence and their budgets to Congress.

Mark Chenoweth

Well, plus a shortcuts nice. Saves us a lot of work, and we get to the regulatory result we want.

Kara Rollins

Exactly. And so what they've done over time with this durable, you know, product standard or statute is they've just kind of kept adding to the list. And the first couple of adds kind of made sense, right? You regulate cribs, you regulate crib mattresses. You regulate infant carriers, which are things that carry infants, then all sort of subsets of that can get regulated.

Mark Chenoweth

Sling carriers. Right. Was the next thing they did.

Kara Rollins

Sling carriers were the next thing. You know, infant stools are on there and there's a couple others. But over time...

Mark Chenoweth

Infant stools probably are made out of wood or plastic.

Kara Rollins

Certainly the one in my home is. And so the over time though, it started getting we'll call it "squishier" because the products did get squishier.

And then this most recent one, they're called "infant support cushions." And if there's any parents listening, you're going to say, "I have never registered for an infant support cushion in my life. What the heck is it?" Because the product category didn't exist until the agency wanted to regulate it. So they take things like infant loungers.

Mark Chenoweth

But what's the product that our...

Kara Rollins.

Our product is the Snuggle Me Infant Lounger.

Mark Chenoweth

Snuggle Me Infant Lounger. So you might have heard of that, parents.

Kara Rollins

It's one of the more common infant loungers on the market.

Mark Chenoweth

Is the Boppy in this category as well?

Kara Rollins

Boppy in this category. And so these are products that, like even CPSC said, like, "They have utility and parents want them. They recognize that.

Mark Chenoweth

Parents do register for these things. And things are very popular.

Kara Rollins

Parents do register for these things. And things are very popular. I think in the case of the Snuggle Me, over a million have been sold in the past decade. And so, you know, they're popular. But as infant products are not, every product works for every child. And what CPSC went and did is, they looked at incidents and they said, "Well, we don't like that. There are certain types of hazards with these products."

Mark Chenoweth

And just so people understand the way that "incidents" work at the CPSC, because I used to read these overnight incident reports when I was, there is a the lawyer for one of the commissioners. An incident report just means that a product is associated with harm. It doesn't mean that the product caused the harm.

Kara Rollins

Yeah, so it could just be present in the room where the incident occurred.

Mark Chenoweth

So the example we often used was, you know: kids playing in the driveway with a ball. Ball gets away in the street, kid runs in the street, gets run over. The ball didn't cause the kid's death, but the ball was associated in that case with, with the would have been associated with the incident.

Kara Rollins

Yeah. And so, so one of the things that comes out of this is that most of the incidents occur in unsafe infant sleep environments. And certainly for, again, the parents out there, particularly parents who have had kids recently, ABCs of Safe Sleep, are the number one sort of protection against it.

That's Alone, Back, Crib. Anything that removes from those three, like adding a blanket or having the child sleep not in a crib on their own, decreases the safety protections that those provide. If you look at all these incidents, and this is something CPSC recognized, in almost every instance, it is a product being misused in an unsafe sleep environment, often with multiple unsafe sleep factors involved.

Kara Rollins

And yet they say that that justifies the need to regulate these products because, and this is where it starts getting a little bit wonky, but interesting, because they may be misused in infant sleep environment in the future. The problem, and this is something we raised in our opening brief and they completely ignored, is that the commission already regulated infant sleep products.

Kara Rollins

They did that 2 or 3 years ago, and the commission never bothered to look at the data and see if by regulating infant sleep products and taking certain products off the market, did that reduce these incident rates of products like these being used in sleep environments?

Mark Chenoweth

And that might tell us two things. It might tell us whether the regulations that they did back then made a difference or not. And it also tell us whether those, if you're looking at the old data to suggest an incident and you're not looking at the new data, then how do you know whether the data has, helped or not?

John Vecchione

There is that. The other thing that it demonstrates, so let's, they regulated these a while ago. Part of the problem with our clients material is what do parents use if these aren't around? Right. They don't look at the absence. What if they just put them on a pillow? Right. You put the kid on the pillow, he's in a lot more danger.

Kara Rollins

And the unfortunate thing is that the reason the ABCs of safe sleep developed is because parents were putting their children in unsafe sleep environments for as long as beds have existed, parents have put children up on beds, which are high places, and babies unfortunately fall off of them. Removing the product from the market or creating a redesign. And we can get into the way the agency suggests redesigning it because it's asinine. Is is it doesn't fix the core problem.

Mark Chenoweth

Which is behavioral.

Kara Rollins

Behavioral. It's absolutely behavioral. And they didn't study the behavioral part. That's the interesting thing is and this goes to the the asinine redesign is they say, "Well, these products should have lowered sidewalls because if a parent looks at it, they'll see the lowered sidewalls and they'll know not to put it up high.

Kara Rollins

They never studied that.

Mark Chenoweth

right.

Kara Rollins

There's no justification for it. Pure supposition. Pure supposition. And that is like the absolute classic and arbitrary and capricious decision making.

John Vecchione

I don't even understand the argument, to tell you the truth, when I first read it, I'm like, "Are you crazy? There's no way I would look at that and think, 'Hmm. You know, that has lowered sides.'"

Mark Chenoweth

How do you even know it's lowered?

John Vecchione

I don't know.

Mark Chenoweth

Do you know what it looked like before?

John Vecchione

But what I find interesting about. And this is a reply brief, is how many things the government didn't talk about. But we haven't. We haven't gotten to the thing that I really enjoy, which is the durable question.

Kara Rollins

This is this is like the real crux, and this is the post Loper Bright / Relentless question is: You look at the statute and you define it using the words available at the time the statute was promulgated. And we went back, I went to the Library of Congress. I pulled a whole bunch of dictionaries and thesauruses. I can't pronounce that with my Jersey accent.

Kara Rollins

And I never took Latin, despite going to Catholic school.

Mark Chenoweth

And that's impressive.

Kara Rollins

Yeah. Made it. Is that we we went back and we looked and we said at the time that this was passed, "durable" just meant that something lasted for a long time without sort of depleting in its quality, right.? And, and at the same time, durable product, durable goods, non durable, all these terms were all sort of understood to have that same meaning. And so we went, and we looked at sort of durable goods. What's durabe good. Typically we exclude textiles but not exclusively. And there's all these other sort of ways that we came forward and we, I think in the opening brief, our definitional sort of description section is like 13 pages.

Kara Rollins

Their response is, "Well, they didn't use "durable good" in the statute and that's that."

John Vecchione

They use durable product, which they say is different.

Kara Rollins

They use durable product. And so my favorite is, and we do cite it. We cite it in the opening brief is Senator Klobuchar, who was a prime sponsor of these amendments, actually used on the Senate floor three times, durable goods. "What are durable goods?" she said.

They are things that every parent needs. They're in every nursery, cribs, car seats, you know, this type of thing. So it's, she listed them. And so there's this laughable element that they they seem to, their best argument they come up is that we're arguing a term of art when we're not. We're just saying this is what people know they are.

Mark Chenoweth

And they're saying these aren't synonyms, when everyone knows they're synonyms.

John

Right. And as Kara said, and it is the consumer "products" commission, in other words, so they call them durable products.

Mark Chenoweth

Consumer Products Safety Commission, Yeah.

Kara Rollins

Yeah, I mean, Consumer Goods Safety Commission just doesn't have the same ring to it. So, you know, there is just this like really odd thing in their argument. But the fact of the matter is I think they're trying everything in their power to not lose on the statutory construction argument, because that puts pretty much, it puts a lot of what they've done in recent years, and certainly a lot of what they want to do, it takes that away. But guess what? What Congress intended as what Congress intended. So it has no no bearing on what the agency hopes to do.

Mark Chenoweth

That's what I love about this case, Kara, is this is a to me, this is a classic example of why we needed to get rid of "Chevron," because Congress had made itself pretty clear what it wanted the regulatory shortcut to entail.

Mark Chenoweth

The agency clearly tried to expand that in order to empower itself. And now the court is in a position to say, "No, you don't. Get back in your lane. Congress was clear here. You don't get deference. The statute means what the statute means. You have to, if you're going to, you can regulate this product if you want to, but you have to do it through the standard process, not the shortcut."

Kara Rollins

And that's the key thing. These products could be regulated through the other process.

Mark Chenoweth

Well, maybe if they can satisfy, they have to do data and they have to look.

Kara Rollins

The government calls that a more constrained process, suggesting, "Oh, woe is us. It takes more work to make sure that babies are safe." I mean, every parent should be a little bit alarmed that the people in charge of making sure products are safe for your babies, are taking the easy way out.

I mean, that's certainly what I'm left with as a young mom. But I do think that there are just these these oddities about it. But one of the oddities about is also the timing of the rule. This rule was initially proposed in, I think, January of last year. Looper Bright / Relentless gets decided in June and they finalize it in early November, late October, right before the election. I mean, if I ever found a case where I think maybe the agency should have went back and looked post Loper Bright if they were still okay, this is it. Now, the more curious thing, and I think we've talked about this...

Mark Chenoweth

Paging Chairman Feldman. Paging Chairman Feldman.

Kara Rollins

Paging whoever DOJ is in charge of looking at executive orders regarding post Loper Bright, because this is the other point:

Kara Rollins

Since then, President Trump has signed an executive order saying you need to rely on the best reading of the statute. And obviously that's not necessarily going back in time, but agencies should probably be looking at what's on their books and saying, is this the best reading of the statute? I have not been impressed by the fact that CPSC continues to defend this rule, nor its statutory interpretation. Now, we may ultimately be wrong when we get to court.

Mark Chenoweth

I don't think so. I like your chances.

Kara Rollins

I like my chances, too.

John Vecchione

Something we're not mentioning, that the court has put it on for early argument.

Kara Rollins

Yes.

John Vecchione

I mean we filed the reply, what, Friday? And the oral argument is November 7th.

Kara Rollins

Yeah. These are these are heard on these types of cases are heard an expert in the process, which is good for the client.

Kara Rollins

Because obviously they've, they've developed and redesigned a new product that is rule compliant but surprise surprise. That's not what the parents want. They don't want this redesigned product that doesn't do what the initial product does. And, you know, I think that that's sort of the real outcome is, you know, one side, CPSC says, "Well, we recognize that these things have utility," and then they proceed to design a rule that takes out all the utility for the parents.

Kara Rollins

I mean, there's there's a real sort of consumer choice problem going on here, too, that they don't really care about what consumers want. They don't care about what parents want, and they don't care what the law says.

Mark Chenoweth

This just takes me back to these meetings we used to have at the CPSC. We called them the fishbowl meetings because they were in a glass-sided conference room.

Mark Chenoweth

And it was all of the, you know, all of the, attorneys that worked for the commissioners. The commissioners weren't allowed to meet together because that was against the Sunshine Rule. So we were all deputized by our commissioners to have these these meetings. And I remember particularly we had a meeting with one of the bureaucrats at the agency, and I remember his name, but I'll just say, this twerp was making the argument that the word "play," in the, in the statute, and we were, I think we were regulating, a toy regulation.

Kara Rollins

Yeah. I was going to say, that's in the toy, yeah.

Mark Chenoweth

And and he said, "Well, play is a very broad meaning. Play could include soldiers on the battlefield wearing uniforms could be considered to be playing." And I blew a gasket. I said, "No, that is not play. That is definitely not play. So go back to the drawing board. We're not signing off on any sort of definition of play that's that broad."

Kara Rollins

Were they regulating howitzers? What were they doing?

Mark Chenoweth

It just goes to your point that they're trying to broaden these definitions as much as possible. And so if they can get "durable" to to be broader and broader than they get to go through this shortcut. But but I love your point, Kara. They're supposed to be in the business of safety and they shouldn't be taking shortcuts that interfere with determining whether what they're doing is going to promote safety or not. And I don't think the changes made to this product do promote safety.

Kara Rollins

No, I think that that's absolutely accurate, because the only entity that bothered to look at whether or not reducing the height of sidewalls created problems like, I don't know, more babies will roll out of the product and fall off of things, which is a stated justification for the rule was our client.

Kara Rollins

They created a prototype, noncommercial prototype, based on the proposed rules constraints, and they studied it with actual infants. And they said, "Look, they're they're falling out of the product." And we can assume that that's true. Again, CPSC ignores that, and they proceed to go back on their, "Well, parents are going to look at this and know not to put it in high places. So maybe it doesn't matter if the baby falls out." I think, you know, I can't I can't quite follow some of their logic because as somebody, and again, I, we actually have this product for my son. So that's the other problems are coming up against a buzzsaw with me because I think it's a wonderful product. But it's just sort of, you know, maybe CPSC needs more, I don't know, real parents?

Mark Chenoweth

Or more snuggling?

Kara Rollins

More snuggling, maybe. Or common sense.

Mark Chenoweth

Yeah. It's in short supply sometimes.

Kara Rollins

And going back to the safety point, and this goes to the common sense aspect. One of the things that would happen under the standard process is that there would be deference given to the voluntary standards process, which is where manufacturers, the CPSC, interested parties like the American Academy of Pediatrics, run of the mill, every day parents ,who use these products and come together, and help design voluntary standards that take into account things like a product's use and end design. And this process just shortcuts them. They you don't have to worry that there is a voluntary process. And in fact, when this rule was finalized, just before was finalized, CPSC went to that group and said, "We want you to effectively adopt this rule as is as your voluntary standard." Even though it...

Mark Chenoweth

It didn't go through the process.

Kara Rollins

And what happened after that? The voluntary standards group disbanded. So they stopped doing the work to make sure these products were safe because CPSC effectively pushed them to that limit.

Mark Chenoweth

Well, it sounds like CPSC was trying to strongarm them to adopt something outside the norms of the process, which is a problem, as well. That's not an issue in this litigation, but are there any other issues that that we should cover, that are in the litigation?

Mark Chenoweth

Or have we have we really hit all the top, top ones?

Kara Rollins

Well, I think we certainly talked about it. I think that, you know, there's just a lot of these really wacky sort of analyzes there, certainly on the data.

Kara Rollins

I think the one thing that we miss in the data is, when you actually look at the data, there's overlap between the way they describe the data set they used for the infant sleep products rule and this rule. We said that in the opening brief, they didn't respond to it. The other thing I went back...

John Vecchione

So what does that do?

Kara Rollins

So what does that do? That means that it that when they say X number of incidents happened that might not actually, the justification is wrong. Because what they said was, "Well, infant sleep products rule, those are completely different. We didn't need to consider what happened there." But if the underlying data considered what happened there and counted products that fell under the other rule, they have a significant problem.

Kara Rollins

And we point this out in the reply. There is at least one product that we identify that had two incidents where infants were tragically lost. That was part of the justification for this rule that were later declared infant sleep products under the infant sleep product rule. A warning was issued. And when was that warning issued? Mere months before this rule was finalized.

Kara Rollins

That should have been backed out of the data. And it wasn't.

Mark Chenoweth

Right. So they're claiming they're trying to use the same data to regulate two different product categories without disaggregating the data. Right? So that's...

Kara Rollins

But then also saying, "Oh, well, it doesn't matter." Without sort of realizing that they had used the same incidents.

Mark Chenoweth

And without looking at new data to see, okay, now that the sleep rule has been in effect, do we have new data showing that this other product category that we made up is continuing to have problems or not, and they just never did that work?

Kara Rollins

Yeah.

Mark Chenoweth

Well, like I said, Kara, I like your chances. This is a wonderful case. I think it's a wonderful example of of John, why your great work and Kara's work and relentless, was so important, and I'm glad to see that, that or oral argument will be coming in November. I'm sure we'll hear about, this case some more down the road.

Kara Rollins

Happy to be back on.

Mark Chenoweth

You've been listening to Unwritten Law.

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