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.

Mark Chenoweth: If you think that unwritten law doesn't affect you, think again. Whether you're a business owner, 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. Welcome to Unwritten Law. It’s Mark Chenoweth with John Vecchione and we are joined by our colleague, Kara Rollins, who just filed a brief in a case. You’ve been on the CPSC for a while over this issue, Kara, but I think this reply brief has some really good points in it that we need to go over. This is the Heroes Technology case. Remind our audience what’s going on in that case.

Mark Chenoweth: A shortcut?

Kara Rollins: A shortcut. Yeah. Even in comparison to the APA, in order for the CPSE 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: And here, Congress said, “Look, for this list of products, cribs, play yards, some durable products, we want you to go ahead and –

Kara Rollins: Baby bathtubs…

Mark Chenoweth: – don’t regulate.”

Kara Rollins: If you look at the list, and there’s 12 items on the list that Congress set out, we’re talking –

Mark Chenoweth: The “durable dozen.”

Kara Rollins: – the “durable dozen.” Oh, I like that. I’m gonna use it. It’s effectively –

Mark Chenoweth: You can have that.

Kara Rollins: – wood, plastic, metal as the main component that they're made out of. Well, as agencies are wont to do, there's always this regulatory creep. They always want more power. Agencies, I always call them “Hungry, Hungry Hippos” or “give a mouse a cookie.” You can use a lot of child analogies here to say, “Once they have power they always want more because they wanna justify their continued existence and their budgets to Congress.”

Mark Chenoweth: Well, plus, a shortcut’s nice.

Kara Rollins: A shortcut’s nice.

Mark Chenoweth: “It saves us a lot of work and we get to –

Kara Rollins: Right.

Mark Chenoweth: the regulatory result we want.”

Kara Rollins: Exactly. And so, what they’ve done over time with this durable 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 regular 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. Infant stools are on there, and there's a couple others…

Mark Chenoweth: Infant stools probably are made out of wood or plastic….

Kara Rollins: Certainly the one in my home is. Over time though it started getting, we’ll call it, squishier because the products did get squishier. And in this most recent one, they're called “infant support cushions.” And if there's any parents listening, you're gonna say, “I have never registered for an infant support cushion in my entire life. What the heck is it?” because the product category didn't exist until the agency wanted to regulate it. So, they take things infant loungers…

Mark Chenoweth: But what's the product…?

Kara Rollins: Our product is the Snuggle Me Infant Lounger.

Kara Rollins: And 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’s in the category. And so, these are products that even CPSE said they have utility if parents want them. They’ve recognized that…

Mark Chenoweth: Parents do register for these things.

Kara Rollins: They do register for these things. They're very popular. I think in the case of the Snuggle Me, over a million have been sold in the past decade. And so, they're popular, but as infant products are, not every product works for every child. And what CPSE wanted 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 CPSE because I used to read these overnight incident reports when I was there as 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: It could just be present in –

Mark Chenoweth: Present.

Kara Rollins: – the room where the incident occurred.

Mark Chenoweth: So, the example we often used was kids playing in the driveway with the 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, in that case, would have been associated with the incident.

Kara Rollins: And so, one things that come 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 No. 1 sort of protection again SIDS; that’s “Alone, Back, Crib.” Anything that removes from those three, like adding a blanket or having a 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 CPSE recognized, if almost every instance it is a product being misused in an unsafe sleep environment, often with multiple unsafe sleep factors involved.

And yet they say that that justifies the need to regulate these products, and this is where it starts getting a little bit wonky but interesting, because they maybe misused an infant’s sleep environments in the future. The problem, this is something we raise in our opening brief and they completely ignored, is that the commission already regulated infant sleep products. They did that two or three 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. It may also tell us whether, 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, 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 a pillow he’s in a lot more danger…

Kara Rollins: And I think the unfortunate thing is that the reason the ABC’s of 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 suggest redesigning it because it’s asinine, 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, and this goes to the asinine redesign, is they say, “Well, these products should have lowered side walls because if a parent looks at it, they’ll see the lowered side walls and they’ll know not to put it up high.” They never studied that.

John Vecchione: Right.

Kara Rollins: There's no justification for it…

Mark Chenoweth: Pure supposition.

Kara Rollins: Pure supposition, and that is the absolute classic case of arbitrary and capricious decision-making.

John Vecchione: And 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 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, and this is a reply brief, right, is how many things the government didn't talk about. But we haven’t gotten to the thing that I really enjoy which is the durable question.

Kara Rollins: This is like the real cracks, 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 statue was promulgated. And we went back. I went to the Library of Congress. I pulled a whole bunch of dictionaries, thesauruses. I can’t pronounce that with my Jersey accent. And I never took Latin despite going to Catholic school.

Mark Chenoweth: That's impressive.

Kara Rollins: I made it. We went back and we looked and we said, “At the time that this was past, “durable” just meant that something lasted for a long time without sort of depleting in its quality,”” right? 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 sort of durable goods. “What’s a durable good?” Typically, we exclude textiles but not exclusively, and there's all these other sort of ways that we came forward. I think of the opening brief. Our definitional sort of description section is like 13 pages. 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 used “durable product.” And so, my favorite is, and we do 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’re things that every parent needs. They're in every nursery. They're cribs, car seats,” this type of thing. So, she listed them. And so, there's this laughable element that their best argument that they can come up with is that we’re arguing a term of art when we’re not. We’re just saying “This is what –

Kara Rollins: – people know they are.”

Mark Chenoweth: And they're saying these aren’t synonyms –

John Vecchione: Right.

Mark Chenoweth: – when everyone knows they're synonyms.

John Vecchione: Right. And as Kara said, and it is the Consumer Products Commission, in other words.

Mark Chenoweth: Right.

John Vecchione: So, they call them “durable products.”

Mark Chenoweth: Consumer Product Safety Commission.

Kara Rollins: Consumer Goods Safety Commission just doesn’t have the same ring to it. So, there is just this 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, a lot of what they’ve done in recent years, and certainly a lot of what they wanna do, it takes that away. But guess what? What Congress intended is what Congress intended. So, it has no bearing on what the agency hopes to do.

Mark Chenoweth: It’s what I love about this case, Kara, is, 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. 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 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. 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.” Every parent should be a little bit alarmed at, the people in charge of making sure products are safe for your babies are taking the easy way out. That’s certainly what I’m left with as a young mom. But I do think that there are just these oddities about it. But one of the oddities about it is also the timing of the rule. This rule was initially proposed in, I think, January of last year. Loper Bright, Relentless gets decided in June and the finalize it in early November, late October, right before the election.

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 before…

Mark Chenoweth: Paging Chairman Feldman. Paging Chairman Feldman.

Kara Rollins: Paging whoever at DOJ is in charge of looking at executive orders regarding post Loper Bright because this is the other point. 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: But something we’re not mentioning. The Court has put it on for early argument. We filed the reply, what, Friday? Our argument is November seventh.

Kara Rollins: Yeah, these types of cases are heard in an expedited process which was good for the client because obviously 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 I think that that's sort of the real outcome is, 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. 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 he CPSC. We called them “the fishbowl meetings” because they were in a glass-sided conference room. And it was 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 meetings. And I remember particularly we had a meeting with one of the bureaucrats at the agency. I think we were regulating a toy. And I remember his name, but I’ll just say “this twerp” was making the argument that the word “Play” in the statute, he said, “is a very broad meaning. Soldiers on the battlefield wearing uniforms could 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….”

Mark Chenoweth: Well, 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 be broader and broader, then they get to go through this shortcut. 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 gonna 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 [inaudible] side walls created problems like, I don’t know, more babies will roll out of the product and fall off of things, which was a stated justification for the role, was our client. They created a non-commercial prototype based on the proposed rules’ constraints and they studied it with actual infant, and they said, “Look, 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 gonna look at this and know not to put it in high places.” So, maybe it doesn’t matter if the baby falls out.

I can't quite follow some of their logic. And again, we actually had this product for my son. So, that's the other problem is they're coming up against a buzzsaw with me because I think it’s a wonderful product. 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: 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 standard process, which is where manufacturers, the CPSC, interested parties at the American Academy of Pediatrics, run-of-the-mill, everyday parents who use these products and come together and help design voluntary standards that take into account things like a product’s use and design. And this process just shortcuts them. You don’t have to worry that there is a voluntary process. And in fact, just before this rule 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 was completely unlike it.

Mark Chenoweth: Didn't go through the process.

Kara Rollins: It didn't go through the process. Unlike it. 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 length.

Mark Chenoweth: Well, it sounds like CPSC was trying to strong arm them to adopt something outside the norms of the process which is –

Kara Rollins: Absolutely.

Kara Rollins: I think we certainly talked about it. I think that there's just a lot of these really wacky sort of analyses there, certainly on the data. I think the one thing that we missed on 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…

John Vecchione: What does that do?

Kara Rollins: What does that do? That means that when they say X number of incidents happened, 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. And we point this out in the reply. There is at least one product that we identified 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. That should have been backed out of the data and it wasn’t.

Mark Chenoweth: Right. So, they're trying to use the same data to regulate two different product categories without disaggregating the data, right?

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. Well, like I said, Kara, I like your chances. This is a wonderful case. I think it’s a wonderful example of, John, why your great work and Kara’s work and Relentless is so important and I’m glad to see that oral argument will be coming in November. I’m sure we will 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. As we like to say here at NCLA, let judges judge. Let legislators legislate, and stop bureaucrats from doing either.

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Duration: 20 minutes