Reese’s Law: A Battery of Updates on CPSC’s Rulemaking Work

The August 2022 “Reese’s Law” — aimed at reducing incidents of children ingesting button cell and coin batteries, potentially leading to serious internal injuries — and related U.S Consumer Product Safety Commission (CPSC) rulemaking requirements have spurred some uncertainty among industry stakeholders. The CPSC final rule is set to take full effect on March 19, after the six-month stay of enforcement ends. Given the ubiquity of such batteries in consumer products, there has been considerable activity regarding implementation, including an industry petition asking the agency to withdraw or postpone the effective date until September 2025 and a petition for judicial review of the final rule filed in D.C. Circuit Court of Appeals. Meanwhile, CPSC is poised to provide additional guidance to industry through an upcoming webinar on January 25.

Background

Reese’s Law, in part, directed CPSC to issue rules establishing performance and labeling requirements for consumer products containing button cell or coin batteries. Reese’s Law gave CPSC the option either to develop and implement its own standard or to adopt a voluntary standard if the agency deemed such a standard provided adequate protection.

In September 2023, CPSC adopted such a voluntary standard: the recently revised UL 4200A (namely, UL 4200A-2023). CPSC published a Direct Final Rule (DFR) that provided that the standard would become mandatory on October 23, 2023 unless the commission received a significant adverse comment by October 5, in which case the agency would withdraw the DFR. Presumably, as the DFR was not withdrawn, the agency did not deem any of the 12 comments it received to be “significant adverse comments.” (Note that toys containing button or coin cell batteries are regulated separately through applicable provisions of the ASTM F963-2017 toy standard.)

In the DFR, the commission granted “a 180-day transitional period of enforcement discretion” to allow industry to adjust to the new standard. This was a notable departure from prior staff recommendations which proposed an 18-month effectiveness date after receiving industry feedback suggesting that “detailed timelines of the necessary activities [for compliance] which ranged from 12 months to 36 months in total.”

While several commenters have criticized the 180-day enforcement timeline, including the Association of Home Appliance Manufacturers, the Power Tool Institute, and the Retail Industry Leaders Association in a joint comment, CPSC has neither withdrawn the DFR nor, to date, extended the enforcement discretion. As a result, companies were given six months to redesign, re-test, and re-certify products, packaging, and instructional material before the enforcement discretion is set to expire on March 19.

Webinar

As noted, CPSC’s Office of the Small Business Ombudsman will host a webinar at 2 p.m. next Thursday, January 25, to provide “An Overview of Button Cell and Coin Battery Requirements.” Interested companies should plan to attend, as presumably CPSC will address some of the frequently asked questions concerning implementation and enforcement of the regulation.

CTA Petition

On January 5, the Consumer Technology Association (CTA), which had also submitted a comment to the DFR questioning the “impractical effective date,” petitioned the agency to request an 18-month extension in enforcement discretion until September 21, 2025. In its petition, CTA cited a recent court defeat for CPSC (vacating the agency’s window-covering rule), writing that the court in that case had “held that the Commission’s reliance on [a] single comment as opposed to the majority view of industry and its own staff’s conclusions was arbitrary” and suggesting that the commission’s decision on timing for the Reese’s Law rule is vulnerable to similar criticism. The petition concluded that “it is doubtful that a 180-day interval” would “survive scrutiny” and “[r]evising the effective date, or extending enforcement discretion, is a reasonable path forward which could address any argument that the Commission unlawfully circumvented its obligations.” CPSC has not acted on the petition as of this writing.

AWA Lawsuit

On November 20, 2023, AWA filed a petition for review in the D.C. Circuit Court of Appeals (American Watch Association Inc. v. U.S. Consumer Prod. Safety Comm’n, No. 23-1322). The litigation is still in its early stages, so no detailed argument has yet been put forth, but, on December 27, AWA submitted a “Statement of Issues” presenting three questions for the court’s review:

• Whether the DFR “is arbitrary and capricious, or otherwise not in accordance with law”
• Whether the DFR “violates the Consumer Product Safety Act … or exceeds the agency’s authority”
• Whether the “Commission structure is unconstitutional”

Conclusion

Stakeholders across the CPSC community will want to keep an eye on each of these moving parts, and companies that make, import, or sell affected products should prepare for the rule to take effect on March 19. Absent further relief from that deadline, non-toy consumer products that contain button cell or coin batteries and that are manufactured or imported after that date must comply with UL 4200A-2023 as adopted by CPSC. For questions about compliance with Reese’s Law or the Consumer Product Safety Act (CPSA), including timely reporting and recalls under Section 15(b) of the CPSA, or with other product safety matters, please reach out to the authors or any of their colleagues on Arnold & Porter’s Consumer Product Safety team.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.