We appreciate the opportunity to comment on the Request for Information on Reducing Regulatory Burdens. Pacific Legal Foundation (PLF) is a national nonprofit law firm that defends Americans’ liberties against government overreach and abuse. Toward that end, PLF performs public policy analysis to empirically determine the effects of laws and regulations that are the subject of PLF litigation. This comment is founded in such analysis and is designed to aid the Consumer Product Safety Commission (CPSC) as it considers reducing regulatory burdens. It does not seek to serve any interest group or affected party, and its ideas do not represent official positions of PLF.

As a result of broad delegations of authority granted by Congress to the CPSC, the CPSC has vast discretion to decide exactly what level of risk is acceptable and what products are risky. As a result, much of the CPSC’s enforcement is highly selective and arbitrary. The CPSC lacks objective standards and clear definitions for terms that are at the heart of its actions, such as “unreasonable risks” and “product defect.” This leads to the CPSC’s attempting to eliminate any risk whatsoever, even (alleged) risk from nondefective products.

This public comment aims to (1) describe the CPSC’s approach and the consequences that arise without clear objective standards to guide enforcement and (2) highlight potentially problematic regulations that are the result of broad grants of rulemaking authority without detailed specificity as potential reduction targets.

Interpretive Rules

When the CPSC initiates administrative action to recall a product, it has to establish that the product in question has a “product defect” that “because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise[,] creates a substantial risk of injury to the public.”¹15 U.S.C. § 2064(a)(2). Because the Consumer Product Safety Act does not define terms such as “product defect,” the CPSC has issued interpretive rules.²16 C.F.R. § 1115.4. Interpretive rules are ostensibly not binding on the public,³Perez v. Mortgage Bankers Association, 572 U.S. 92, 97 (2015). yet in administrative proceedings used to determine product defects, these interpretive rules are treated as binding. These rules identify factors that the CPSC may or may not consider in its defect analysis, and they allow the CPSC to consider any “other factors” the CPSC itself deems “relevant to the determination.”⁴16 C.F.R. § 1115.4(e).

The CPSC thus claims broad discretion to determine whether a product is defective and presents a substantial product hazard. Traditionally, product defects are the result of design, manufacturing, or a lack of warnings.⁵Black’s Law Dictionary, 11th ed., s.v. “Product Defect”; “Intentional Harm to Persons,” in A Concise Restatement of Torts, 3rd ed. (Philadelphia, PA: American Law Institute, 1998). But the CPSC can claim through its interpretive rules that a product is defective because it is “reasonably foreseeable” that people might misuse it, even if the CPSC never identifies any objective design, manufacturing, or warning defect with the product itself.⁶“Small Family Business Battles Arbitrary Prosecution for Baby Pillow,” Pacific Legal Foundation, accessed July 18, 2025, https://pacificlegal.org/case/cpsc-due-process-leachco/. In other words, product defects can include no defects at all—just the potential for or evidence of misuse alone, as defined by the CPSC’s interpretive rules.

However, the CPSC does not apply these rules consistently, especially when it comes to infant nursery products. On the contrary, the CPSC considers some products (e.g., cribs and flat mattresses) safe for sleep, even though those products are often misused.

According to the CPSC’s own annual reports, most product-related infant injuries and deaths are caused by consumer misuse.⁷Mitchell Scacchi, Megan Jenkins, and Oliver Dunford, Paternalism and Product Safety: The Consumer Product Safety Commission’s Approach toward Infant Nursery Products (Sacramento, CA: Pacific Legal Foundation, 2025); “Toys and Children Products,” Consumer Product Safety Commission, accessed July 18, 2025, https://www.cpsc.gov/Research–Statistics/Toys-and-Childrens-Products. From 2002 to 2021, misuse of cribs was responsible for 82 percent of crib-related deaths annually, compared with 18 percent, on average, caused by crib defects. Each of the last four CPSC reports shows that crib defects accounted for less than 10 percent of crib-related deaths, whereas misuse accounted for more than 90 percent. These same patterns are observed with other categories of infant nursery products as well. The majority of infant deaths associated with bassinets and cradles, playpens and play yards, and infant carriers and car seat carriers are caused by people misusing them, not by failures of the products themselves.

These facts, coupled with the CPSC’s actions to eliminate all risk for other products, lead to an incoherent approach. The CPSC targets products for the same infant sleep-hazard patterns that it observes for more ubiquitous products, such as cribs, bassinets, and carriers.⁸“Small Family Business Battles Arbitrary Prosecution for Baby Pillow.” As a result, the CPSC attempts to eliminate any risk from certain nondefective products by removing them from the market, despite the Consumer Product Safety Act’s authorization to protect people from “unreasonable risks.”⁹15 U.S.C. § 2051(b)(1).

The CPSC’s arbitrary standards result from its reliance on its own interpretive rules. The CPSC should jettison these current standardless rules and adopt objective rules that guide its enforcement actions, including clear definitions of “defect” and “unreasonable.” Without that, the CPSC can decide that a few instances of alleged misuse—the same patterns seen across all types of nursery products—are enough to render a product wholly defective, even without finding any objective flaws or defects.

Finding Potentially Unlawful Regulations

Another reasonable place to start when seeking to reduce regulatory burdens is the CPSC’s regulatory regime itself, especially rules that are most prone to legal challenge. These include regulations based on broad and constitutionally suspect delegations of authority from Congress. In these instances, the CPSC unlawfully makes policy decisions rather than merely filling in the details.

Beginning with the Consumer Product Safety Act, Congress has granted broad authority to the CPSC, and this authority has guided the CPSC’s actions and approach toward regulating consumer products. The CPSC’s use of interpretive rules to make policy decisions is a direct result of these kinds of broad congressional delegations. However, tracking and categorizing these delegations has become increasingly difficult owing to the breadth of such delegations and the subsequent growth of the Code of Federal Regulations (CFR).

The authority claimed by the CPSC can be seen in the findings of PLF’s forthcoming Nondelegation Project, which aims to connect specific statutory authorizations from Congress with the rules that agencies promulgate based on those authorizations.¹⁰This project was developed by Patrick McLaughlin, PhD, visiting research fellow at Pacific Legal Foundation and research fellow at the Hoover Institution. This project categorizes each congressional authorization as “general” or “specific,” as well as whether the contents of the relevant CFR parts are directly mandated, explicitly authorized, or otherwise related to those delegations. This categorization allows users to identify problematic delegations and their resulting regulations, information that could help prioritize regulatory reform.

This Nondelegation Project has identified 171 general delegations of authority by Congress (i.e., broad grants of rulemaking power without specificity) to the CPSC, or 29.5 percent of all delegations to the CPSC (excluding delegations under Title 5 of the US Code).¹¹Title 5 (U.S.C. §§ 101–13146) does not appear to contain agency- or topic-specific delegations but instead deals with the organization and administration of the federal government. Therefore, it is excluded from this analysis. These include 27 that are related but neither directly mandated nor explicitly authorized (see Table 1), 125 that are authorized but not mandated (see Table A1 in the appendix), and 19 that are directly mandated (see Table A2 in the appendix). These broad authorizations represent the authority cited for 36 CFR parts containing rules and regulations that together amount to 3,594 regulatory restrictions (words such as “shall,” “must,” and “may not”). The greater the number of restrictions, the more restrictive and burdensome the CFR part.

TABLE 1. General Delegations by Congress to the CPSC (Related but Neither Directly Mandated nor Explicitly Authorized)

The CPSC should review existing regulations to determine whether they exceed the CPSC’s statutory authority and whether they are based on congressional delegations in conflict with recent jurisprudence and the Constitution. Any regulations found in these parts of the CFR and promulgated based on these general congressional delegations could face judicial review under the nondelegation doctrine, as well as the major questions doctrine explicated in West Virginia v. Environmental Protection Agency.¹²Legal Information Institute, “Nondelegation Doctrine,” Cornell Law School, accessed July 21, 2025, https://www.law.cornell.edu/wex/nondelegation_doctrine; West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022). Regulations that are related but neither directly mandated nor explicitly authorized by the corresponding general delegation from Congress are especially vulnerable to review. The delegations and corresponding regulatory parts identified in Table 1 therefore present the quickest opportunities to reduce regulatory burdens.

Conclusion

The CPSC’s regulatory burdens on product manufacturers are in part a result of Congress’s broad delegation of authority to the CPSC. The CPSC can develop objective standards that inform its enforcement and regulatory actions and clearly define terms that motivate its actions instead of relying on fluid and legally questionable interpretive rules.

Additionally, the CPSC has assumed more authority than Congress provided, and Congress has delegated authority in contravention of the Constitution. The CPSC should therefore review the legality and necessity of rules that are the result of broad, general authorizations from Congress, especially those that are related but neither directly mandated nor explicitly authorized. These regulations are most susceptible to legal challenge and, thus, represent an expedient place for the CPSC to start when seeking to reduce its regulatory burdens.

Appendix

TABLE A1. General Delegations by Congress to the CPSC (Authorized but Not Mandated)

TABLE A2. General Delegations by Congress to the CPSC (Directly Mandated)