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CPSC Presses Onward With Equity Action Plan – Product Liability & Safety


In late spring, the Consumer Product Safety Commission (CPSC)
held a roundtable for interested stakeholders to discuss the Equity
Action Plan it issued on January 20, 2022.1 In hosting
the public forum, the CPSC sought to “give the public an
opportunity to discuss steps the agency can take to better address
existing racial disparities in injury rates and deaths caused by
certain consumer products.”2 The CPSC used the
roundtable to solicit first impressions and feedback on its Equity
Action Plan, discussing how to reach underserved communities,
communication and education strategies, and potential policy
changes with interested parties.

Industry participants should pay close attention as the
CPSC’s — and other federal agencies’ — equity
policies and initiatives take shape, especially considering that an
area of focus is targeted enforcement actions and investigations.
Any actions these agencies take to implement their equity action
plans are likely to affect how manufacturers, distributors, and
retailers interact with consumers in underserved populations and
might give rise to new litigation risks.

Executive Order 13985

On January 20, 2021, the president signed Executive Order 13985,
Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government.3 The executive order
tasks the federal government with pursuing “a comprehensive
approach to advancing equity for all, including people of color and
others who have been historically underserved, marginalized, and
adversely affected by persistent poverty and
inequality.”4

To achieve this comprehensive approach, the executive order
empowers the White House Domestic Policy Council to coordinate
efforts across the federal government and to ensure such efforts
are made in partnership with the directors of the National Security
Council and the National Economic Council.5 The
executive order commissions the creation of an Interagency Working
Group on Equitable Data to gather the data necessary to measure and
advance equity.6 The executive order also instructs the
director of the Office of Management and Budget to work with heads
of agencies to “study methods for assessing whether agency
policies and actions create or exacerbate barriers to full and
equal participation by all eligible individuals.”7
Such study may include the implementation of pilot programs to test
model assessment tools.8

The CPSC’s Equity Action Plan

In response to Executive Order 13985, the CPSC’s Equity
Action Plan summarizes its early equity-related accomplishments and
identifies four barriers to achieving more equitable public health
outcomes from a product safety perspective: 1) outreach to address
higher injury rates among Black Americans, 2) improving data
quality, 3) standards and research, and 4) targeted enforcement and
investigations.

The plan’s executive summary notes that agency injury
statistics already show racial disparities in injury and death
rates caused by carbon monoxide poisoning, residential fires, and
pool drownings among minority families.9 Thus, the plan
outlines agency efforts to identify further disparities with
respect to other hazards and to implement agency-wide training,
public education, data improvements, staff changes, standards
development, research projects, and — most immediately
important for industry — targeted enforcement and
investigation actions.10

As to targeted enforcement and investigations, the plan
describes the CPSC’s intention to use zip code census data to
surveil targeted areas, collecting samples of potentially hazardous
consumer products and removing banned or recalled
products.11 The CPSC also notes efforts to target
“low-value, high-risk” imported products that are likely
to be sold in areas with underserved populations.12 The
stated goal of such actions is to remove noncompliant and illegal
products from the market, thereby reducing injuries within at-risk
populations.13

The CPSC is one of over 90 federal agencies that submitted
equity action plans in response to Executive Order
13985.14 Other independent agencies that voluntarily
participated include the Federal Communications Commission, Federal
Trade Commission, National Transportation Safety Board, and
Occupational Safety and Heath Review Commission.15
Similar to the CPSC, these agency plans summarize equity-related
accomplishments and identify three-to-five barriers to equitable
outcomes, proposing action items to address those barriers. Many of
these plans propose targeted enforcement actions and
investigations.

Equity Action Plans Will Have an Impact

Interagency collaboration and coordination are likely to
increase as agencies like the CPSC work to implement their
respective action plans. With multiple agencies focused on the same
or similar goals, there could be several regulators knocking on the
same doors. With targeted enforcement actions and investigations
also comes the potential for litigation.

At a minimum, industry participants should know the agencies
with purview over the various aspects of their business. To stay
better informed, industry participants should pay attention and
participate in the conversations those agencies orchestrate and
understand the practical implications of the equity initiatives
those agencies ultimately decide to undertake based on those
conversations. For example, while the CPSC’s May 25th
roundtable largely focused on communication and education
strategies for underserved communities, participant Charon McNabb
— co-founder of the National Carbon Monoxide Awareness
Association — expressed that the onus for failing consumer
products, specifically home appliances, should fall on those who
design, manufacture, and sell the products, not on consumers. Other
participants echoed this sentiment and encouraged the agency to
incentivize and monitor the modernization of safety technologies.
Thus, while the CPSC’s Equity Action Plan is predictably going
to result in changes to communication and education strategies, it
may also produce results that the unwary never expected.

Footnotes

1. CPSC Equity Action Plan, https://www.cpsc.gov/About-CPSC/CPSC-Equity-Action-Plan.

2. “CPSC Announces Stakeholder Roundtable on May 25,
2022 to Hear from Public on New Equity Action Plan; Joins Over
Ninety Federal Agencies Releasing Equity Action Plans (Apr. 14,
2022), https://www.cpsc.gov/Newsroom/News-Releases/2022/CPSC-Announces-Stakeholder-Roundtable-on-May-25-2022-to-Hear-from-Public-on-New-Equity-Action-Plan-Joins-Over-Ninety-Federal-Agencies-Releasing-Equity-Action-Plans.

3. E.O. 13985 (Jan. 20, 2021), https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government.

4. Id. § 1.

5. Id. § 3.

6. Id. § 9.

7. Id. § 4.

8. Id.

9. CPSC Equity Action Plan at 1, https://www.cpsc.gov/About-CPSC/CPSC-Equity-Action-Plan.

10. Id.

11. Id. at 10-12.

12. Id.

13. Id.

14. General Services Administration & the Office of
Management and Budget, “Advancing an Equitable
Government” (last visited May 1, 2022), https://www.performance.gov/equity/#action-plans.

15. Id.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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