Clever Idea Co., Inc. v. CONSUMER PRODUCT SAFETY COM'N

• Decision Date: 04 December 1974
• Docket Number: No. 74 C 1638.,74 C 1638.
• Citation: 385 F. Supp. 688
• Parties: CLEVER IDEA COMPANY, INC., and Jet Industries, Inc., Plaintiffs, v. CONSUMER PRODUCT SAFETY COMMISSION et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

385 F. Supp. 688

CLEVER IDEA COMPANY, INC., and Jet Industries, Inc., Plaintiffs, v. CONSUMER PRODUCT SAFETY COMMISSION et al., Defendants.

No. 74 C 1638.

United States District Court, E. D. New York.

December 4, 1974.

Aberman, Greene & Locker, New York City, for plaintiffs.

David G. Trager, U. S. Atty., by Pamela C. McGuire, Asst. U. S. Atty., for defendants.

OPINION

PLATT, District Judge.

Plaintiffs seek a preliminary injunction against the defendants restraining them from the enforcement of Regulation 16 CFR 1500.18(a)(2) and defendants' banning Orders dated January 11, 1974 and August 23, 1974 issued thereunder and any other banning orders promulgated thereunder relating to plaintiffs' products.

On November 19, 1974, after hearing counsel for all parties, this Court issued a temporary restraining order granting plaintiffs the aforesaid relief pending its determination of this motion.

In their complaint for declaratory judgment and injunctive relief plaintiffs allege that the jurisdiction of this Court is based upon: (i) 28 U.S.C. § 1331(a) pertaining to civil actions arising under the Constitution, laws or treaties of the United States wherein the amount in controversy exceeds the sum or value of $10,000 exclusive of interest or costs and (ii) 28 U.S.C. § 1337 pertaining to civil actions arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.

The venue is proper, the plaintiffs claim, because one of the plaintiffs resides in this District and each defendant is an officer or employee of the United States or an agency thereof and no real property is involved in the action.

THE STATUTE

The statute involved is the Federal Hazardous Substances Act, 15 U.S.C. § 1261 et seq., and the regulation of the risks of injury thereunder has, with the enactment of the Consumer Product Safety Act on October 27, 1972, been transferred from the Secretary of H.E. W. to the defendant Commission herein.

Section 1261(f)(1)(D) of the Federal Hazardous Substances Act provides that:

"(f) The term `hazardous substance' means:

* * * * * *

"(D) Any toy or other article intended for use by children which the Secretary by regulation determines, in accordance with section 1262(e) of this title, presents an electrical, mechanical, or thermal hazard."

Section 1261(s) of such Act provides that:

"(s) An article may be determined to present a mechanical hazard if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness (1) from fracture, fragmentation, or disassembly of the article, (2) from propulsion of the article (or any part or accessory thereof), (3) from points or other protrusions, surfaces, edges, openings, or closures, (4) from moving parts, (5) from lack or insufficiency of controls to reduce or stop motion, (6) as a result of self-adhering characteristics of the article, (7) because the article (or any part or accessory thereof) may be aspirated or ingested, (8) because of instability, or (9) because of any other aspect of the article's design or manufacture."

Section 1262(e) of the Act provides that:

"(1) A determination by the Secretary that a toy or other article intended for use by children presents an electrical, mechanical, or thermal hazard shall be made by regulation in accordance with the procedures prescribed by section 553 (other than clause (B) of the last sentence of subsection (b) of such section) of Title 5 unless the Secretary elects the procedures prescribed by subsection (e) of section 371 of Title 21, in which event such subsection and subsections (f) and (g) of such section 371 of Title 21 shall apply to the making of such determination. If the Secretary makes such election, he shall publish that fact with the proposal required to be published under paragraph (1) of such subsection (e).

"(2) If, before or during a proceeding pursuant to paragraph (1) of this subsection, the Secretary finds that, because of an electrical, mechanical, or thermal hazard, distribution of the toy or other article involved presents an imminent hazard to the public health and he, by order published in the Federal Register, gives notice of such finding, such toy or other article shall be deemed to be a banned hazardous substance for purposes of this chapter until the proceeding has been completed. If not yet initiated when such order is published, such a proceeding shall be initiated as promptly as possible."

THE REGULATIONS

Pursuant to the aforesaid Act, and on or about December 17, 1970, the Commissioner of Food and Drugs, under authority of the Secretary of H.E.W., issued Regulation 21 CFR 191.9a(a)(3) which is now known as 16 CFR 1500.18 (a)(2) and which reads as follows:

"§ 191.9a. Banned toys and other banned articles intended for use by children

(a) Toys and other children's articles presenting mechanical hazards. Under the authority of section 2(f)(1)(D) of the act, and pursuant to provisions of section 3(e) of the act, the Commissioner has determined that the following types of toys or other articles intended for use by children present a mechanical hazard within the meaning of section 2(s) of the act because in normal use or when subjected to reasonably foreseeable damage or abuse, the design or manufacture presents an unreasonable risk of personal injury or illness: * * *

* * * * * *

"(2) Any toy having noisemaking components or attachments capable of being dislodged by the operating features of the toy or capable of being deliberately removed by a child, which toy has the potential for causing laceration, puncture wound injury, aspiration, ingestion or other injury."

THE FACTS

Plaintiff Clever Idea Company, Inc. ("Clever") is a New York corporation with its principal place of business at 117 Concord Street, Brooklyn, New York, and plaintiff Jet Industries, Inc. ("Jet") is a Connecticut corporation with its principal place of business at 114 Manhattan Street, Stamford, Connecticut.

Plaintiff Clever's president testified that Clever had been producing paper and blow-out horns with plastic mouthpieces for "almost 30 years" and that during such time Clever had never received any type of complaint nor had it ever been sued in any court for any claimed defects. During this period Clever distributed approximately two million of such mouthpieces per year for a total of approximately sixty million mouthpieces.

Plaintiff Jet's president testified that his company had been distributing approximately a quarter of a million mouthpieces per year for the past ten years and during such period they had never received a complaint with respect to any of such products.

The plaintiffs called two witnesses from the Bureau of Compliance, the defendants called a Director of the Division of Hazard Evaluation of the Consumer Products Safety Commission and all of them admitted that the government had never received a complaint with respect to any of plaintiffs' products and that they knew of no such complaint even after their investigations of the plaintiffs. One of the government employees was Ms. H. Elizabeth Jones about whom more is set forth below.

In the case of Clever, it has distributed a standard type of mouthpiece from the early 1950s up until January, 1974. In the latter month the Toy Manufacturers of America proposed a voluntary standard which called for the use of a new mouthpiece which is "tougher to bite through" with an increased rubber compound mixed with polystyrene and the plaintiff adopted such standard and has been distributing such "tougher" mouthpieces since said date.

According to the government employees who testified, the Regulations in question were first promulgated in December of 1970 and between such date and 1973 the Food and Drug Administration applied various tests, other than a bite test, to determine the safety of the toys and no adverse determinations were made with respect to plaintiffs' products.

About a year ago the Commission began using the so-called "bite test" in question herein. According to Mr. Van Houten, a Consumer Product Safety Commission Chemical Engineer, in approximately June of 1972 his supervisor, being "aware of a report that had been conducted by anthropologists", suggested that Mr. Van Houten devise a system to accomplish a bite test which he did and after curing various deficiencies therein developed "an improved bite test" which the Commission began using last year.

The government, however, frankly admits that it never told the plaintiffs or any other toy manufacturers that it was using the bite test and to date has never promulgated such test as an official test.

In and about December 1972 the Commission did publish certain proposed test methods for simulating use and abuse (37 FR 26120), which apparently include descriptions of the so-called "bite test" but such regulations have not, as yet, been promulgated or adopted.

In June of 1973, under the supervision of Ms. H. Elizabeth Jones (see supra) the plaintiff Clever's toys were subjected to a number of tests and apparently failed the proposed "bite test". For that reason Ms. Jones wrote a letter dated June 11, 1974 addressed to Clever in which she stated that the subject toys "present a mechanical hazard within the meaning of the Federal Hazardous Substances Act and Regulation 1500.18 (a)(2)" and that they have the potential for causing laceration, puncture wound injury, aspiration, ingestion or choking, in that the mouthpiece of each toy can be bitten through during normal use or reasonably foreseeable damage or abuse exposing small pieces and sharp edges. From this she concluded that they were "banned hazardous substances" under the Act.

The same conclusion based on the same reasons was given by Ms. Jones in banning similar toys distributed by the plaintiff Jet in her letter dated August 23, 1974.

Not only were plaintiffs' products thus...