An interesting and potentially very important case not only in CPSC world but for thousands of statutes and regulations is pending in a federal court of appeals. On May 18th, a civil rights group filed its opening brief against the Consumer Product Safety Commission in the 3rd Circuit case Milice v. CPSC, Docket. No. 20-01373 (3d Cir. Feb 20, 2020).
The New Civil Liberties Alliance (NCLA) is a group opposing the “unconstitutional administrative state within our U.S. government.” It is headed by former CPSC staffer Mark Chenoweth.
NCLA, representing a new mother, brought the suit challenging the validity of the Commission’s safety standards for certain children’s products. The NCLA argues that the Commission’s recent rule establishing safety standards for infant bath seats (including baby bath rings) is unlawful because the complete safety standards are allegedly available only by paying a private third-party, ASTM International (“ASTM”), for access.
The Cost of a Safety Standard Incorporated Into Law
ASTM is a well-recognized independent organization that develops consensus-based standards for a wide range of industries, including many children’s products. These standards are voluntary, however government agencies such as the CPSC regularly create rules requiring compliance with ASTM standards. The CPSC has adopted as mandatory ASTM standards for a variety of products, including toys (ASTM F963) and full size cribs (ASTM F1169).
In 2019, ASTM updated its safety specifications for infant bath seats, ASTM F1967-19. The standard updates labeling, product performance, and safety testing requirements. The CPSC subsequently promulgated an agency rule, 84 FR 49435, which adopted the ASTM update and made the new standard legally binding on manufacturers.
The Commission’s rule incorporates the standard by reference, meaning rather than publish the entire ASTM F1967-19, the Federal Register notice summarizes the significant changes from the prior standard. Consumers who want to know the specifics of the safety standard allegedly must purchase it from ASTM for $56.00.
Use of consensus standards is strongly encouraged, even effectively required, by numerous federal laws, including the Consumer Product Safety Act (CPSA), 15 U.S.C. §§ 2051 et seq. Incorporation of material by reference is expressly authorized by the Freedom of Information Act, but incorporated material must be “reasonably available to the class of persons affected thereby.” See 5 U.S.C. § 552(a). The NCLA argues that the safety standard is not “reasonably available” to interested consumers unless it is available for free. Petitioner’s opening brief describes the CPSC’s rulemaking as a “pay-per-law” process which, under the CPSA and the Administrative Procedure Act, 5 U.S.C. §§ et seq, contravenes the agency’s notice-and-comment requirements by making public comment and compliance with the CPSC requirement impossible without paying for the standard. Additionally, the NCLA argues that the rule is unconstitutional, as it violates a basic principle drawn from the First and Fifth Amendments requiring laws to be freely accessible to the public.
Recent Access to the Law Cases
This NCLA suit is a variation on several other cases challenging incorporation by reference or restricting copying and distribution of important legal guidance. Earlier this year, the U.S. Supreme Court decided Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020), a copyright infringement suit in which the state of Georgia sued an organization for the unauthorized distribution of its annotated state code. The annotations were drafted by a third-party publisher in collaboration with the Georgia state legal code committee under an arrangement which gave the publisher exclusive copyright to the annotated code.
The Supreme Court held in favor of the alleged infringer. The 5-4 majority opinion found the publisher’s annotations were not copyrightable because they were considered authored by the state committee, an arm of the legislature. According to the “government edicts doctrine,” copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties, regardless of whether the work is legally binding. For more about this decision, including the dissent, see our ML Insights coverage of the case here.
In 2018, the D.C. Court of Appeals decided a copyright infringement suit brought by ASTM and two other major standard-setting organizations against a defendant that copied and distributed hundreds of standards, some of which were incorporated by reference into statutes. See Am. Soc’y for Testing & Materials, et al. v. Public.Resource.Org, Inc., 896 F.3d 437 (D.C. Cir. 2018). The court reversed the district court and essentially held for the defendant. It limited its opinion to the copyright issue of fair use, although the court acknowledged its “serious constitutional concern” with private ownership of a legal obligation. In a concurring opinion, Judge Katsas wrote that “access to the law cannot be conditioned on the consent of a private party, just as it cannot be conditioned on the ability to read fine print posted on high walls.” See 896 F.3d at 458 (D.C. Cir. 2018) (Katsas, J., concurring).
Conclusion
This lawsuit could have been brought against dozens of federal agencies which use the incorporation by reference approach, often due to statutory mandate. However one feels about the legal and policy issues it presents, a loss by CPSC would challenge a highly effective statutorily and pragmatically driven system of extensive reliance on consensus standards without which CPSC could not possibly cover the enormous number of product types under its jurisdiction. (As an aside, this case involves a voluntary standard turned mandatory. One wonders the outcome of such a suit in a compliance enforcement matter, for example, where a voluntary standard that has not been adopted as mandatory, but the agency nevertheless enforces it as such (for example, the ASTM F2057-19 standard for furniture stability)).
We note that although ASTM has not yet made an appearance in the case (perhaps through an amicus?), the organization has a virtual “reading room” on its website where it states all of its standards incorporated by reference into a U.S. regulation are available for free for reading only (no downloading or printing). Additionally, in response to the COVID-19 emergency, ASTM is providing free public access to “important standards used in the production and testing of personal protective equipment.”
Obviously, the Third Circuit’s decision will have a major impact on rules incorporated by reference across the entire spectrum of agency administration and government regulation.
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