The Consumer Product Safety Commission (CPSC) has its sights set on a small Oklahoma company. Although Leachco Inc. has an excellent safety record, the CPSC claims its baby recliner is a safety hazard. But the bureau’s narrative is aggressive, and its actions violate the Constitution’s separation of powers at every stage.
In 1988, Jamie and Clyde Leach started a business in their hometown of Ida City, Oklahoma, making products to help parents with the challenges of raising infants and young children. Since then, Leachco Inc.’s product line has continued to expand, earning the trust of countless expecting mothers, families and caregivers.
But the CPSC is threatening the future of the small company with a theory of liability that, if adopted, could wreak havoc on product manufacturers, distributors and retailers.
To make matters worse, the CPSC is prosecuting its allegations entirely in-house. CPSC commissioners vote to bring administrative action against Leachco; CPSC staff refer case to Administrative Law Judge (ALJ); commissioners themselves will consider any appeals of ALJ decisions. Like administrative litigation across the federal government, this internal “trial” works against regulated parties and deprives them of their due process rights to a fair hearing in neutral courts.
The Leaches are fighting back — defending their business and constitutional rights.
The product at issue is the Podster, a reclining chair developed by registered nurse Jamie for caregivers to keep babies safe. The Podster is not a crib, nor is it designed to sleep – in fact, as the CPSC itself admits, Leachco has been expressly warning and instructing that the Podster must only be used when the baby is awake and under adult supervision.
Since launching the product in 2009, Leachco has sold over 180,000 Podsters. Leaches himself and thousands of other households use Podster safely.
But the CPSC said two infant deaths in 2015 and 2018 proved it was unsafe. In both cases, users ignored Leachco’s warnings and common sense.
In one case, a daycare worker placed an infant in a Podster inside a crib and left the infant unattended for more than an hour and a half, in violation of state law and the daycare itself. Daycares lost their licenses and closed as a result. Another baby was placed in a Podster and then placed in an adult bed, between the baby’s adult parents, with bedding and pillows — contrary to Leachco’s warnings and instructions.
Both of these tragic cases reflect misuse of Podster rather than any flaws in the product itself. These facts were clearly irrelevant to the CPSC, which asked Leachco to recall the Podster. According to the CPSC, the Podster presents a “considerable risk of injury” because it was “reasonably foreseeable” that paramedics could ignore Leachco’s warnings and misuse the Podster.
Under this legal theory, all manufacturers and retailers are liable for injuries caused by consumers’ negligence or even willful misuse of safe products, even if the manufacturer provides warnings and instructions for safe use. This reimagining of product liability, based on the agency’s own non-binding “guidance,” will hinder innovation and shut down many businesses for false reasons.
Rather than refer this legal theory to an independent judge and jury, the CPSC will decide for itself whether the CPSC has proven its case. Basically, the agency can serve as prosecutors, trial judges, juries and appellate judges — all but guaranteeing a biased process.
In fact, after CPSC commissioners voted to approve executive action against Leachco, Commissioner Rich Trumka Jr. warned that “when companies refuse to recall products deemed deadly by CPSC staff, they should expect to receive soon. to administrative complaints.”
Only after this administrative ordeal could Leachco appeal to the actual court. Even so, Leachco’s rights are limited because the final agency decision must be respected. As a result, the independence of the reviewing court was compromised and Leachco’s right to a hearing before an independent judge was thwarted.
The Leach family is fighting back. Represented by the Pacific Legal Foundation, Leachco filed a lawsuit in federal court challenging the CPSC’s unconstitutional judicial farce and forcing the agency to submit its allegations to an independent court, unburdened by its fact-finding and legal conclusions.
If this is all “dangerous,” it’s not a Leachco product. This is an abuse tactic of the CPSC. If the agency has a case, it must be proven in court before a judge and jury.
Oliver Dunford is a lawyer Pacific Legal Foundation, a nonprofit legal organization that defends American liberties when threatened by government overreach and abuse.follow him on twitter @ojdunford.