The Hill: Why an Oklahoma family business is fighting the Consumer Product Safety Commission

October 31, 2022 | By OLIVER DUNFORD

The Consumer Product Safety Commission (CPSC) has set its sights on a small company in Oklahoma. Despite an excellent safety record by Leachco Inc., the CPSC claims its infant-lounging pillow is a safety hazard. But the bureau’s narrative is aggressive and its actions violate the Constitution’s separation of powers at every stage.

In 1988, Jamie and Clyde Leach started a business in their hometown of Ada, Okla., making products to help parents meet the challenges of raising infants and small children. Since then, Leachco Inc.’s product lines have expanded, earning the trust of countless expectant mothers, families and caregivers.

But the CPSC is threatening the small company’s future with a theory of liability that, if adopted, could create havoc among product manufacturers, distributors and retailers.

Making a bad situation worse, the CPSC is prosecuting its allegations entirely in-house. CPSC commissioners voted to initiate an administrative proceeding against Leachco; CPSC staff presented the case to an administrative law judge (ALJ); and the commissioners themselves will consider any appeal from the ALJ’s decision. Like administrative proceedings across the federal government, such an in-house “trial” stacks the deck against regulated parties and denies them their due process right to a fair hearing before a neutral court.

The Leaches are fighting back — defending their business and their constitutional rights.

The product at issue is the Podster, a lounger that Jamie, a registered nurse, developed for caregivers to secure an infant safely. The Podster is not a crib and is not designed for sleeping — in fact, as the CPSC itself concedes, Leachco has always given express warnings and instructions that the Podster must be used only when an infant is awake and an adult is supervising.

Leachco has sold more than 180,000 Podsters since the product was launched in 2009. The Leaches themselves, and thousands of other families, have used Podsters safely.

But the CPSC alleges that two infant deaths, one in 2015 and one in 2018, prove that it is unsafe. In both cases, the users disregarded Leachco’s warnings and common sense.

In one case, day care personnel violated state law and the day care’s own regulations when they placed an infant in a Podster inside a crib and left the infant unsupervised for over an hour and a half. The day care facility lost its license and closed as a result. The other infant had been placed in the Podster and then placed on an adult bed, between the infant’s adult parents, along with bedding and pillows, for co-sleeping — contrary to Leachco’s warnings and instructions.

Both tragic cases reflect misuse of the Podster, not any defect in the product itself. Those facts evidently don’t matter to the CPSC, which has demanded that Leachco recall the Podster. According to the CPSC, the Podster presents a “substantial risk of injury” because it’s “reasonably foreseeable” that caregivers might ignore Leachco’s warnings and misuse the Podster.

Under this legal theory, all manufacturers and retailers would be liable for injuries caused by consumers’ negligent or even intentional misuse of a safe product, even when the manufacturer provided warnings and instructions on safe use. This reimagining of product liability — based on the agency’s own non-binding “guidance” — would stunt innovation and shutter many businesses on spurious grounds.

Rather than presenting this legal theory to an independent judge and jury, the CPSC itself will decide whether the CPSC has proven its case. Basically, the agency gets to serve as prosecutor, trial judge, jury and appellate judge — which all but guarantees a biased process.

Indeed, after CPSC commissioners voted to approve the administrative action against Leachco, Commissioner Rich Trumka Jr. warned, “When companies refuse to recall products deemed deadly by CPSC staff, they should expect an administrative complaint to quickly follow.”

Only after this administrative ordeal can Leachco appeal to an actual court of law. And even then, Leachco’s rights are curtailed because final agency decisions must receive deferential treatment. As a result, the reviewing court’s independence is undermined and Leachco’s right to a hearing before an independent judge is thwarted.

The Leach family is fighting back. Represented by Pacific Legal Foundation, Leachco filed a lawsuit in federal court to challenge the CPSC’s unconstitutional judicial farce and force the agency to bring its allegations to an independent court, unburdened by its fact-finding and legal conclusions.

If there’s a “hazard” in all of this, it’s not Leachco’s product. It’s the CPSC’s abusive tactics. If the agency has a case, it must prove it in court before a judge and jury.

This op-ed was originally published at The Hill on October 31, 2022.