No Stay of Enforcement of Tracking Labels Provision Issued

The two sitting commissioners of the Consumer Product Safety Commission split their vote Wednesday when considering an industry request for an emergency stay of enforcement of the tracking label requirement in Section 103 of the Consumer Product Safety Improvement Act of 2008. Acting Chairman Nancy Nord voted in favor of granting the emergency stay request and Commissioner Thomas H. Moore voted to deny the request. Without a consensus vote, the stay cannot be implemented.

On March 24, 2009, the Consumer Product Safety Commission Coalition of the National Association of Manufacturers ("NAM") submitted a letter in support of its request for an emergency stay of the tracking label requirement. NAM expressed concern that there would be inadequate time to implement this provision and its anticipated tracking label regulatory requirements if issued by the Commission by August 14, 2009.

Acting Chairman Nord agreed with NAM's concern stating: "[T]he law does not give us appropriate lead time nor does it give us flexibility to impose the requirements by product class and prioritize in an order based on importance." She also questioned whether "the application of the tracking label provisions across the board to all companies will improve recall effectiveness to such an extent as to justify the potential significant disruption and adverse impact on manufacturers, especially smaller companies."

Commissioner Moore voted to deny the request on the grounds that such a stay would effectively delay the implementation of a statutory provision, which the Commission does not have the authority to do. In addition, Commissioner Moore noted that "Section 103 does not require the Commission to adopt regulations as an aid to compliance. It is a relatively brief section, but it does, like so many provisions of our laws, require manufacturers to exercise sound judgment in meeting its requirements." He suggested that the Commission will act reasonably with manufacturers whose tracking labels "have the information required by the statute and [who] do not take a cavalier approach to the 'to the extent practicable' language in the statute." Finally, Commissioner Moore stated that, should the Commission issue a regulation pertaining to requirements for tracking labels, such regulation would be prospective and provide adequate lead time to comply.