Kaiser Aluminum & Chemical Corp. v. U.S. Consumer Product Safety Commission, 77-1874
| Decision Date | 27 March 1978 |
| Docket Number | No. 77-1874,77-1874 |
| Citation | 574 F.2d 178 |
| Parties | KAISER ALUMINUM AND CHEMICAL CORPORATION v. The UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Richard O. Simpson, Individually and in his capacity as a Commissioner of Consumer Product Safety Commission, Barbara Franklin, Individually and in her capacity as a Commissioner of Consumer Product Safety Commission, Lawrence Kushner, Individually and in his capacity as a Commissioner of Consumer Product Safety Commission, Constance Newman, Individually and in her capacity as a Commissioner of Consumer Product Safety Commission, R. David Pittle, Individually and in his capacity as a Commissioner of Consumer Product Safety Commission. Appeal of the UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
Charles S. Crompton, Jr., Potter, Anderson & Corroon, Wilmington, Del., Ronald J. Greene, Christopher R. Lipsett, Wilmer, Cutler & Pickering, Washington, D. C., Max Thelen, Jr., Fredric C. Nelson, Thelen, Marrin John H. Shenfield, Asst. Atty. Gen., Barry Grossman, Andrea Limmer, Attys., Dept. of Justice, Washington, D. C., Theodore J. Garrish, Gen. Counsel, Alan H. Schoem, Atty., Consumer Product Safety Comm'n, Washington, D. C., for appellants.
Johnson & Bridges, San Francisco, Cal., for Kaiser Aluminum & Chemical Corp.; Robert W. Turner, Dennis M. Day, Kaiser Aluminum and Chemical Corp., Oakland, Cal., of counsel.
Before GIBBONS and GARTH, Circuit Judges, and WEINER, * District Judge.
The Consumer Product Safety Commission (CPSC) appeals from a judgment of the district court which declares that the Consumer Product Safety Act, Pub.L.No.92-573, 15 U.S.C. § 2051 et seq., grants CPSC no jurisdiction over aluminum branch circuit wiring or aluminum branch circuit wiring systems, and which enjoins CPSC from publishing regulations covering such products. 1 The plaintiff is Kaiser Aluminum and Chemical Corporation, a manufacturer of such products. We conclude that the court misconstrued the Act, and we reverse.
Branch circuit wiring conducts electric current from electrical panels containing fuses or circuit breakers to various terminals within a residence. These terminals include lighting fixtures, switches, and wall outlets in which the plugs of electrical appliances are inserted. Branch wiring is made of either copper or aluminum. Kaiser produces the aluminum variety and sells it to wholesalers, who in turn sell it to electrical contractors for installation in residences during construction. Once installed, it is as a rule completely enclosed in the walls of the structure.
Under the Act CPSC has regulatory authority over "consumer products." As defined in section 3(a)(1) of the Act, 15 U.S.C. § 2052(a)(1), that term means
any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise; but such term does not include
(A) any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer . . . .
Pursuant to its regulatory authority under section 5(a) of the Act, 15 U.S.C. § 2054(a), CPSC collects, analyzes, and publishes information about hazardous products. Under sections 7(b) and 9(c)(2)(A) of the Act, 15 U.S.C. §§ 2056(b) & 2058(c)(2)(A), it may also develop safety standards for consumer products and, where "reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with such product(s)," may promulgate its standards by rule. Finally, under section 15 of the Act, 15 U.S.C. § 2064, it may, after a hearing, declare certain consumer products to present "substantial product hazards."
In November, 1973, following reports of electrical failures and overheating involving aluminum branch circuit wiring, CPSC opened an investigation into the product. Public hearings were held in March and April, 1974, to determine whether further investigation and eventual regulatory action were warranted. During 1975 CPSC published expressions of concern about potential fire hazards associated with the product. On August 7, 1975, CPSC voted to commence a proceeding to develop a consumer product safety standard, and on November 4, 1975, it published a notice to that effect. 40 Fed.Reg. 51,218 (1975). That notice disclosed CPSC's concern that aluminum branch circuit wiring exposed consumers to several serious hazards, including death or injury caused by burning or asphyxiation.
In January, 1976, Kaiser commenced this action, seeking an injunction prohibiting CPSC's dissemination of information about aluminum branch circuit wiring and requiring the retraction of information previously published. In addition, Kaiser sought injunctive and declaratory relief against the further exercise by CPSC of jurisdiction with respect to the product, on the ground that it is not a consumer product. The district court accepted this contention, and this appeal followed. Kaiser relies on the plain language of the Act and on its legislative history.
If the Act covers branch circuit wiring, it does so because that product is an "article, or component part thereof, produced or distributed . . . for the personal use . . . or enjoyment of a consumer in or around a . . . household or residence." Kaiser's first contention is that branch circuit wiring is not an "article." Rather, it contends, such wiring is a building supply material intended for incorporation in a residence and becoming a part thereof. It notes that by the dichotomy between articles and residences the Act clearly excludes buildings used as residences from the definition of consumer products. It does not follow from such exclusion, however, that the Act incorporates all the arcane knowledge about when personal property becomes a fixture and thus part of the building. If Kaiser's interpretation were correct, then many consumer products in common use such as furnaces, water heaters, dishwashers, and lighting fixtures would be excluded from coverage. We see nothing in the plain language of the Act suggesting that the word "article," a noun denoting any material thing, excludes components incorporated in a residence if they otherwise fit within the definition.
Kaiser next contends that, even if branch circuit wiring is an article, it is not an article intended for the personal use or enjoyment of a consumer in a household or residence. Rather, Kaiser urges, it is an industrial building material intended for use by the electricians who install it in a building. It certainly is that, but once installed it is just as certainly used and enjoyed by householders whenever they turn on an electric switch. That it was first used in a different way by those who erected the building does not negate the plain fact that consumers later use and enjoy it. Kaiser correctly observes that the Act intended a distinction between consumer products such as teapots and razors on the one hand and industrial products on the other. But it would be impossible for a consumer to enjoy the use of an electric razor without also enjoying the use of the branch circuit wiring to which it is connected. Kaiser points out that such a consumer also enjoys the use of the power line in the street and the utility company's electric generator, and so he does. But those articles are not used "in or around" his household, while branch circuit wiring is.
Turning to another part of the consumer products definition, Kaiser notes that it excludes nine categories of products, including "any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer." 2 This exclusion, almost a mirror image of the general definition, is hardly a model of clarity but was undoubtedly intended to exclude industrial products, on the theory that industrial purchasers are better able to protect themselves and are subject to the separate regulatory scheme enacted by the Occupational Safety and Health Act of 1970, Pub.L.No.91-596, 29 U.S.C. § 651 et seq.
The House Report on the Consumer Product Safety Act explained the exclusion as follows:
It is not intended that true "industrial products" be included within the ambit of the Product Safety Commission's authority. Thus, your committee has specifically excluded products...
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