This cost-benefit analysis focuses specifically on four factors: the degree and nature of the risk of injury sought to be prevented; the approximate number and type of products subject to the rule; the public’s need for those products, and the probable effect of the rule on the utility, cost and availability of the products; and any means of reducing the risk of injury while minimizing adverse effects on competition or other commercial practices. See 15 U.S.C. § 2058(f)(1), (2). Second, CPSC must determine if the cost-benefit analysis justifies the safety regulation.

Law §§ 4—5; see also 16 C.F.R. § 1263.1(c) (2023). Reese’s Law § 5 defines a “toy product” as “any object designed, manufactured, or marketed as a plaything for children under 14 years of age.”7See 16 CFR § 1250 (2023).8 Safety Standard for Button Cell or Coin Batteries and Consumer Products Containing Such Batteries, 88 Fed. Reg. 65276 (September 21, 2023) (to be codified at 16 C.F.R. pts. 1112, 1263).9 16 C.F.R. § 1263.3 (2023). Note that Reese’s Law also provides labeling requirements for the packaging of button cell and coin batteries themselves, which the UL 4200A-23 standard does not address. Accordingly, the CPSC adopted a separate rule related to this requirement.See 16 C.F.R. § 1263.4 (2023).10 Reese’s Law § 2(a)(2); 16 C.F.R. § 1263.3 (2023).11 Reese’s Law § 2(b).12 16 C.F.R. §§ 1263.1(a), 1263.3 (2023).13See Safety Standard for Button Cell or Coin Batteries and Consumer Products Containing Such Batteries, 88 Fed. Reg. at 65278 (Table 1a.).14See Reese’s Law § 2(c); see also 15 U.S.C. §§ 2058, 2068.15 15 U.S.C. § 2069.16Id. § 2070.17Id. § 2072. Note that the matter in controversy must exceed $10,000 to qualify under this private right of action.18 Reese’s Law, 15 U.S.C. § 2056e; see also 16 C.F.R. § 1263.1 (2023).[View source.]

To that end, while the Fifth Circuit deferred to CPSC on its application of statistical methods and scientific data, the Court found that CPSC violated APA procedures because CPSC “did not give adequate opportunity to comment when it changed its underlying rationale for the final rule.”The Fifth Circuit also analyzed CPSC’s compliance with 15 U.S.C. § 2057, under which CPSC can ban a product containing an unreasonable risk of injury that cannot be rectified through a feasible safety standard, as well as 15 U.S.C. § 2058, which contains the standards for banning a hazardous product. The Fifth Circuit ruled that CPSC must analyze whether the permanent ban of DINP, which was already subject to an interim ban, was reasonably necessary.

Zen challenged this final rule as not meeting the requirements under the Consumer Product Safety Act (CSPA) for a variety of reasons. Specifically, under the CSPA, 15 U.S.C. § 2058(f), the CPSC may promulgate a safety standard only if it reaches and articulates several conclusions, including:“that the rule . . . is reasonably necessary to eliminate or reduce an unreasonable risk of injury”;that the . . . rule is in the public interest”;“that the benefits expected from the rule bear a reasonable relationship to its costs”; and“that the rule imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the rule is being promulgated.”The court concluded that the CPSC lacked substantial evidence demonstrating that the rule is necessary to avoid an unreasonable risk.

Section 9(g)(1) of the CPSA expressly states that consumer product safety standards are only applicable to products manufactured after the effective date, and therefore those standards are not retroactive. 15 U.S.C. § 2058(g)(1). Based on rules of statutory interpretation, the designation of the phthalates provision as a consumer product safety standard reflects a desire to keep the regulatory process consistent with past practice under the existing CPSA.