NAT. ORN. & EL. LT. XMAS ASS'N v. CON. PROD. SAF. COMM'N

• Citation: 526 F.2d 1368
• Decision Date: 10 December 1975
• Docket Number: Docket 75-6122.,No. 619,619
• Parties: NATIONAL ORNAMENT & ELECTRIC LIGHT CHRISTMAS ASSOCIATION, INC., et al., Appellees, v. CONSUMER PRODUCT SAFETY COMMISSION et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

526 F.2d 1368

NATIONAL ORNAMENT & ELECTRIC LIGHT CHRISTMAS ASSOCIATION, INC., et al., Appellees, v. CONSUMER PRODUCT SAFETY COMMISSION et al., Appellants.

No. 619, Docket 75-6122.

United States Court of Appeals Second Circuit.

Argued December 2, 1975.

Decided December 10, 1975.

Richard P. Caro, Asst. U.S. Atty. (David G. Trager, U.S. Atty., E. D. N. Y.; Josephine King, Asst. U.S. Atty., and Norman Barnett, Consumer Product Safety Comm., of counsel), for appellants.

Aaron Locker, New York City (Aberman, Greene & Locker, and David Greene, New York City, of counsel), for appellees.

Before LUMBARD, FRIENDLY and MULLIGAN, Circuit Judges.

FRIENDLY, Circuit Judge:

In this action in the District Court for the Eastern District of New York, wherein federal jurisdiction was predicated on 28 U.S.C. §§ 1331 and 1337, a trade association of manufacturers and distributors of Christmas light decorations, and a number of such manufacturers and distributors, sought declaratory and injunctive relief with respect to the conduct by the Consumer Product Safety Commission (CPSC or the Commission) of what, by Order 9010.83, dated November 5, 1975, it had designated as a "Consumer Deputy Program — Retail Survey of Christmas Decorative Lights" (the Program). The complaint, accompanied by a request for a temporary restraining order and a preliminary injunction, was filed on November 10, 1975, the very day on which the Program was to become effective. After hearing argument, Chief Judge Mishler, who was in the midst of a trial, granted, on November 12, the preliminary injunction with respect to three proposed screening methods designed to discover defects not apparent on visual examination but denied it as to two methods relating to defects that were apparent. The Commission appealed. Another panel of this court denied a stay but, because the program was to be conducted during the Christmas season, set an exceedingly expedited schedule. After hearing argument on December 2, 1975, we entered an order in which we reversed the injunction, directed that the mandate issue forthwith, and stated that an opinion would follow.

The Commission has enlisted the aid of a number of citizens whose concern with consumer product safety has prompted them to enroll as "Consumer Deputies" in order to assist the Commission in carrying out the difficult tasks with which Congress has entrusted it. The purpose of this Program, as stated in the order, was to utilize these deputies to supplement CPSC's inspection efforts with "surveys of retail outlets for Christmas decorative lights which have been identified as containing defects which may present substantial hazards as defined in Section 15(a) of the Consumer Product Safety Act."¹

The Commission's order went on to recite as background that in past Christmas seasons it had received numerous reports of electrical shock and fire or potential fire incidents from defective Christmas lights; that manufacturers, importers, and retailers had been notified of potential hazards and urged to inspect existing stocks; and that the Program was intended further to alert retailers to potential hazards of Christmas lights and to methods for checking their own stock for them. The objectives of the Program were stated to be:

a. To ascertain whether retailers are aware of possible hazards with Christmas decorative lights in their stock.

b. To inform retailers of the potential hazards of Christmas decorative lights and of methods for checking lights in stock for these hazards.

c. To provide feedback as to the types and volume of Christmas decorative lights seen at the retail level as compared to those identified by the field survey of manufacturers.

d. To make the public aware of potential hazards of certain Christmas decorative lights through publicity of this program.

The method of operation, as set forth in the Order and Appendices, was this: The deputies, who were to receive prescribed training, were instructed that they had no authority beyond that of any consumer and must not describe themselves as employees of CPSC. Armed with an illustrated booklet titled "What Can You Do Now and How Should You Do It?" and with a set of lights that had been arranged to reveal the hazards, they were to enter stores engaged in the sale of Christmas lights and state that they were there to explain potential hazards and to demonstrate methods for the retailer's checking of his lights. If the retailer permitted, they were to demonstrate these methods, five in number, with the set of defective lights that had been supplied them, and were to survey the lights in stock on shelves and fill out a report to the Commission identifying them. However, they were not themselves to examine the lights for defects. The deputies were also instructed that, before leaving, they were to ask the retailer whether he intended to inspect the lights, suggest that any lights found on such an inspection to have hazards be removed, and notify him that information on their survey would be turned over to CPSC and that an official follow-up might result. The report forms furnished to the deputies to fill out were to include the items described in the margin.² At the end of the Program each deputy was to prepare a final report to the Commission which would summarize the individual reports and comment on various aspects of the Program.

After the hearing, but before the issuance of the decision here on review, the Commission modified its directives to meet some of the objections that had been raised. The new instructions provided, in part, that "No Deputy shall in any manner advise a retailer to remove any item from inventory for any reason." In addition, deputies were provided with a new Letter of Introduction, to be given to the retailer, which stated:

The Commission's purpose in conducting this program is purely informational to assist it in promoting product safety by sharing its knowledge of certain potential defects which have been found in Christmas tree lights through past Commission surveys. The Commission has not, as of this date, undertaken any regulatory or legal action against any manufacturer, distributor, importer or private labeler of Christmas tree lights other than to inform them of the potential hazards which have been identified and to request that they take voluntary action to insure that their products do not contain any such defects.

Whatever may have been the case earlier, a subject on which we express no opinion, the Program as revised appears on its face to be entirely proper. Section 15(b)(2) of the Act requires, inter alia, that every retailer of a consumer product distributed in commerce "who obtains information which reasonably supports the conclusion that such product . . . contains a defect which could create a substantial product hazard described in subsection (a)(2)"³ shall immediately inform the Commission of such defect unless he has actual knowledge that the Commission has been adequately informed. The objective of the Program was to insure that retailers would not remain supine until defects came to their attention as the result of a consumer complaint or an accident, but would be encouraged to engage in inspection before sale. Thus, deputies were instructed to give retailers, along with the booklet outlining the five tests, a copy of "Fact Sheet No. 32," which stated in part:

Business has a responsibility to report to the Commission any product defect which could create a substantial risk of injury to consumers.

The Consumer Product Safety Act states that manufacturers, importers, distributors, and retailers must immediately inform the Commission if any product . . . contains a defect that could create a substantial product hazard.

The "Fact Sheet" also detailed the procedure to be used in reporting a potential hazard, and a telephone number to call in order to give an immediate notification. Particularly in light of the findings and purposes of the Act as declared in § 2, the authorization to the Commission in § 5 to develop product safety information, and the directive in § 6(c) that it "shall communicate to each manufacturer of a consumer product, insofar as may be practicable, information as to any significant risk of injury associated with such product," the Program was legal, indeed laudable, unless some other provision of the Act forbade.

The district judge, acting under acute pressure of time, concluded that § 7, dealing with...