Finnbin, LLC v. CPSC ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 1, 2022 Decided August 2, 2022
No. 21-1180
FINNBIN, LLC,
PETITIONER
v.
CONSUMER PRODUCT SAFETY COMMISSION,
RESPONDENT
On Petition for Review of a Final Rule
of the Consumer Product Safety Commission
Kathleen R. Hartnett argued the cause for petitioner. With
her on the briefs was Julie Veroff.
Daniel Winik, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
Brian M. Boynton, Acting Assistant Attorney General, and
Scott R. McIntosh, Attorney.
Rachel M. Weintraub and Oriene H. Shin were on the brief
for amici curiae Consumer Reports, et al. in support of
respondent.
Before: MILLETT, PILLARD, and KATSAS, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: The Consumer Product Safety
Commission promulgated a mandatory safety standard
governing all previously unregulated infant sleep products,
including ones for which there was no voluntary safety
standard in effect. We consider whether the CPSC had
statutory authority to promulgate this standard and whether it
acted arbitrarily in doing so.
I
A
The Consumer Product Safety Act empowers the CPSC to
promulgate “consumer product safety standards” including
performance requirements, warnings, and instructions. 15
U.S.C. § 2056(a). Before promulgating a standard, the
Commission must prepare a final regulatory analysis and make
a host of findings about costs and benefits. Id. § 2058(f). The
agency must stay its hand if a voluntary standard adopted by a
private group adequately reduces the relevant product risks and
will likely achieve substantial compliance. Id. § 2056(b)(1).
The Act also permits the CPSC to ban hazardous consumer
products. To do so, the Commission must find that the product
at issue presents an unreasonable risk of injury and that no
feasible safety standard would adequately protect the public
from it. 15 U.S.C. § 2057. In banning products, the CPSC
must follow the procedures that govern its general power to
promulgate safety standards. See id.Section 104 of the Consumer Product Safety Improvement
Act creates special rules regarding the promulgation of safety
3
standards for durable infant or toddler products. Section
104(b)(1) provides:
The Commission shall—
(A) in consultation with representatives of
consumer groups, juvenile product
manufacturers, and independent child product
engineers and experts, examine and assess the
effectiveness of any voluntary consumer
product safety standards for durable infant or
toddler products; and
(B) in accordance with section 553 of title 5,
promulgate consumer product safety standards
that—
(i) are substantially the same as such
voluntary standards; or
(ii) are more stringent than such voluntary
standards, if the Commission determines
that more stringent standards would further
reduce the risk of injury associated with
such products.
15 U.S.C. § 2056a(b)(1). Section 104(b)(2) directs the CPSC
to promulgate safety standards for at least two “categories of
durable infant or toddler products” every six months “until the
Commission has promulgated standards for all such product
categories.” Id. § 2056a(b)(2). The CPSC also must
periodically review and revise these standards to ensure that
they “provide the highest level of safety for such products that
is feasible.” Id.
4
B
Between 2009 and 2016, the CPSC used its section 104
authority to set standards for five kinds of infant sleep products:
bassinets and cradles, full-size cribs, non-full-size cribs, play
yards, and bedside sleepers. 16 C.F.R. pts. 1218–22. In 2017,
it issued a notice of proposed rulemaking to address a sixth
kind, infant inclined sleep products, which have a surface
inclined more than ten degrees. 82 Fed. Reg. 16,963, 16,964
(Apr. 7, 2017). As proposed, the standard would have largely
tracked a voluntary standard for infant inclined sleep products
established by the private organization ASTM International.
Id. at 16,968–69.
In 2019, the CPSC issued a supplemental notice proposing
a different standard. The Commission proposed to expand its
new mandatory standard to encompass all infant sleep products
not already covered by a CPSC standard. 84 Fed. Reg. 60,949,
60,956 (Nov. 12, 2019). The notice further proposed to impose
on these products the requirements governing bassinets and
cradles. Id. These include requirements to have a firm stand
and an elevated sleeping surface, as well as minimum strength
and stability standards. 16 C.F.R. pt. 1218. In issuing this
proposal, the CPSC leapfrogged an ongoing ASTM effort to
create a voluntary standard for infant flat sleep products.
A divided CPSC adopted the rule, which became effective
on June 23, 2022. See 86 Fed. Reg. 33,022 (June 23, 2021)
(codified at 16 C.F.R. pt. 1236).
C
Until recently, Finnbin, LLC sold baby boxes, an infant
flat sleep product covered by the final rule. Baby boxes are
cardboard boxes with a small mattress at the bottom. Finnbin’s
5
boxes lack a firm stand and elevation, so Finnbin may no longer
sell them as designed.
Finnbin seeks judicial review of the final rule. We have
jurisdiction under 15 U.S.C. § 2056a(b)(3).
II
Finnbin makes two arguments why, in its view, the final
rule exceeds the CPSC’s statutory authority under section 104.
We reject both contentions. 1
A
Finnbin’s primary argument turns on the word stringent.
Section 104(b)(1) permits the CPSC to promulgate mandatory
safety standards that are “more stringent” than extant voluntary
standards. 15 U.S.C. § 2056a(b)(1). According to Finnbin, to
make a safety standard “more stringent” is to make it apply
more strictly to previously covered products or product types.
For example, because an extant voluntary standard covers
infant inclined sleep products, the Commission may impose
stricter standards on them. But, Finnbin continues, the power
to make a safety standard “more stringent” does not include the
power to extend it to additional products, which Finnbin
describes as a separate matter of scope. Accordingly, because
the extant voluntary standard here covers only inclined sleep
1
We reject the CPSC’s argument that Finnbin failed to preserve
these claims before the agency. Absent a contrary statutory
requirement, issue preservation is unnecessary “when the agency has
in fact considered the issue.” NRDC, Inc. v. EPA, 824 F.2d 1146,
1151 (D.C. Cir. 1987) (en banc). Here, the CPSC explained at length
its view that section 104 authorizes the final rule. 86 Fed. Reg. at
33,056–59.
6
products, the Commission could not impose a broader standard
extending to previously unregulated flat sleep products.
Finnbin’s proposed distinction between stringency and
scope is hardly obvious. As a matter of ordinary meaning, the
stringency of a standard refers to its strictness or rigor. See,
e.g., Stringent, Oxford English Dictionary (2d ed. 1989)
(“Rigorous, strict, thoroughgoing; rigorously binding or
coercive”); Stringent, American Heritage Dictionary (2d
college ed. 1985) (“Imposing rigorous standards of
performance; severe”); Stringent, Webster’s Third New
International Dictionary (1961) (“marked by rigor, strictness,
or severity”). These definitions plainly include Finnbin’s
proposed interpretation. For example, the Secretary of
Transportation can make a fuel-economy standard “more
stringent” by increasing the number of miles that covered
vehicles must be able to travel per gallon of fuel. 49 U.S.C.
§ 32902(g)(2). But it is also natural to speak of stringency as
including what Finnbin calls scope—a requirement can be
made stricter or more rigorous by being made more broadly
applicable. For example, in construing a statutory requirement
of program “stringency,” we upheld an administrative
interpretation of that term to encompass both “the substantive
rigor of the program” and “its geographic scope.” NRDC, Inc.
v. EPA, 22 F.3d 1125, 1141–42 (D.C. Cir. 1994) (per curiam).
So even though Finnbin highlights one kind of stringency, the
concept still may extend to matters of scope.
In this case, statutory structure confirms the broader
definition. Section 104(b)(2) directs the CPSC to promulgate
safety standards for at least “2 categories of durable infant or
toddler products every 6 months” until it “has promulgated
standards for all such product categories.” 15 U.S.C.
§ 2056a(b)(2). Section 104(b)(2) thus requires the CPSC to act
steadily until it has set mandatory standards for all categories
7
of “durable infant or toddler products”—a defined term not
limited to products for which a voluntary safety standard is in
place. See id. § 2056a(f)(1) (“a durable product intended for
use, or that may be reasonably expected to be used, by children
under the age of 5 years”). By restricting the Commission’s
section 104 power to products or product types already subject
to a voluntary standard, Finnbin’s interpretation would make
this command impossible for the CPSC to carry out unless
private organizations happened to promulgate voluntary
standards for all product categories. No such comprehensive
voluntary standards existed when the CPSIA was enacted in
2008, just as none exist today. And we strongly disfavor any
interpretation that would make statutory commands
unfulfillable. See, e.g., Am. Hosp. Ass’n v. Price, 867 F.3d 160,
161 (D.C. Cir. 2017) (“Ought implies can.”); A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts § 4
(2012) (“Presumption Against Ineffectiveness”).
Finnbin responds that we should disregard the command
of section 104(b)(2) because that provision merely sets forth a
timetable. But the fact that section 104(b)(2) establishes a
“[t]imetable for rulemaking,” and is so titled, does not prevent
it from having further substantive import. See Cal. Indep. Sys.
Operator Corp. v. FERC, 372 F.3d 395, 399 (D.C. Cir. 2004)
(“the section title of a statute is not dispositive of its meaning”).
The text of section 104(b)(2), in requiring mandatory standards
for “all” categories of durable infant or toddler products,
provides a decisive contextual clue that the standards must
extend to products not covered by voluntary ones.
Finnbin also urges skepticism of what it describes as the
CPSC’s claim to have “discover[ed] in a long-extant statute an
unheralded” major power. Util. Air Regul. Grp. v. EPA, 573
U.S. 302, 324 (2014). Finnbin notes that the CPSC has never
before invoked section 104 to extend a voluntary standard to
8
new products. But any initial skepticism cannot withstand the
express statutory command to regulate all categories of durable
infant or toddler products. And it is hardly surprising that the
CPSC, in doing so, would begin with product categories for
which a voluntary standard already exists. We are also not
concerned that, before promulgating the final rule, the CPSC
urged ASTM to extend its voluntary standard from inclined to
flat sleep products. The fact that the CPSC seeks to collaborate
with private standard-setting organizations where possible
hardly speaks to the limit of its statutory authority.
B
Finnbin further contends that section 104 permits the
CPSC to impose safety standards but not product bans, which
it says must be done under 15 U.S.C. § 2057. Moreover,
Finnbin continues, the final rule bans products like baby boxes.
We assume that section 104, like the CPSC’s general
authority to promulgate consumer product safety standards,
does not encompass the power to ban entire products. But the
final rule cannot fairly be characterized as doing so. On some
level, any performance requirement may loosely be described
as a ban on non-conforming products. A requirement for cars
to have seatbelts bans cars without seatbelts. Yet the
Commission has broad authority to promulgate “performance
requirements” for consumer products, 15 U.S.C. § 2056(a)(1),
as distinct from its restricted authority to ban entire consumer
“product[s]” under 15 U.S.C. § 2057. And so not every
performance requirement may be recast as a product ban.
By its terms, the final rule creates performance
requirements for infant sleep products not already covered by
a section 104 standard. 16 C.F.R. pt. 1236. Finnbin provides
no reason to think that the rule effectively bans any discrete
product. For one thing, Finnbin quietly acknowledges that
9
baby boxes can have a stand. See Opening Br. at 44 (“most
baby boxes … do not have legs” (emphasis added)). That alone
confirms that the rule operates as a ban only on Finnbin’s
particular design. Finnbin also fails to show that baby boxes
(with or without a stand) are a discrete product. Instead, it
argues only that the rule forces manufacturers either to redesign
their products or to take them off the market—precisely the
choice that every manufacturer of a non-conforming product
faces. None of this establishes a product ban subject to the
constraints of 15 U.S.C. § 2057. 2
III
Finnbin next argues that the final rule is arbitrary, and so
must be set aside under 5 U.S.C. § 706(2)(A). In evaluating
this contention, we ask whether the CPSC “examine[d] the
relevant data and articulate[d] a satisfactory explanation for its
action including a rational connection between the facts found
and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (cleaned up).
Finnbin primarily argues that the CPSC failed to explain
why the rule should cover baby boxes specifically, given what
Finnbin asserts to be their distinct risks and benefits. Finnbin
faces an uphill battle in making this kind of argument, for in
formulating general rules, “a regulator need not always carve
out exceptions for arguably distinct subcategories of projects.”
Long Island Power Auth. v. FERC, 27 F.4th 705, 715 (D.C. Cir.
2022) (quoting Old Dominion Elec. Coop. v. FERC, 898 F.3d
1254, 1262 (D.C. Cir. 2018)).
2
Because plain statutory language supports the CPSC’s
reading, we need not assess questions of deference. See Ams. for
Clean Energy v. EPA, 864 F.3d 691, 716 n.5 (D.C. Cir. 2017).
10
A
In assessing the risks of infant sleep products, the CPSC
reviewed more than 150 incident reports detailing problems
caused by the products. Finnbin contends that because none of
them involved baby boxes, the Commission had no reasonable
basis to conclude that baby boxes present risks. We disagree.
The final rule reasonably encompasses all previously
unregulated infant sleep products. Observing patterns that cut
across different product designs, the CPSC identified risks and
explained how its proposed safety features would reduce them.
For example, the agency noted reports of products tipping over
when placed on unstable surfaces such as sofas. 86 Fed. Reg.
at 33,043. It reasonably concluded that this risk inheres in all
flat-bottomed products, which can easily be placed on such
surfaces. Id. And it reasonably concluded that requiring a firm
stand and elevated mattress would mitigate the risk. Id. Seeing
risks that cut across different product types, the Commission
reasonably made its rule correspondingly broad. Finally, the
agency reasonably discounted the absence of incident reports
specifically involving baby boxes, which are purchased by less
than one percent of United States households with newborns.
See 86 Fed. Reg. at 33,028.
In contending that the CPSC failed to provide an adequate
explanation, Finnbin highlights cases faulting the Commission
for relying on “imprecis[e]” injury reports, Zen Magnets, LLC
v. CPSC, 841 F.3d 1141, 1151 (10th Cir. 2016), or failing to
“make precise estimates” of the relevant safety risks, Gulf S.
Insulation v. CPSC, 701 F.2d 1137, 1146 (5th Cir. 1983). But
these cases involved rules promulgated under the Consumer
Product Safety Act—which, unlike section 104, requires a
rigorous cost-benefit analysis. See 15 U.S.C. § 2058. So,
11
these cases cast no light on how much qualitative analysis is
required under section 104 and the APA.
B
Finnbin likewise argues that the CPSC unreasonably failed
to consider the assertedly distinct safety benefits of baby boxes.
It points to three pieces of evidence: a survey of new parents
who were provided baby boxes; the fact that the infant
mortality rate in Finland has dropped since the 1930s, when
baby boxes were first introduced there; and the absence of
incident reports involving baby boxes. None of this evidence
required a response. The survey does not suggest that baby
boxes are safer than the other kinds of infant sleep products. It
simply notes how likely parents are to use baby boxes if given
them. The decline in Finland’s infant mortality rate over the
last century could readily be attributed to any number of factors
besides the use of baby boxes, such as medical and educational
advances over the same period. And as explained above, the
absence of incident reports involving baby boxes hardly proves
anything, given their tiny share of the U.S. market. Moreover,
the CPSC had other reasons to regard baby boxes with
skepticism, such as a comment by the American Academy of
Pediatrics that baby boxes were “not yet proven to be safe and
effective.” J.A. 293.
The CPSC had ample reason not to carve out baby boxes
from the operation of its general rule.
C
Finally, Finnbin contends that the Commission ignored a
distinct safety benefit of in-bed sleepers. Echoing the dissent
of Commissioner Baiocco, J.A. 730–32, Finnbin asserts that
the stand requirement will prevent parents who wish to share
their bed with an infant from using in-bed sleepers. Instead,
12
such parents will place the infant directly on their mattress,
which is assertedly more dangerous. Whatever the merits of
this argument, Finnbin lacks standing to press it.
“Standing is not dispensed in gross.” Davis v. FEC, 554
U.S. 724, 734 (2008) (cleaned up). Rather, a petitioner must
establish standing “for each claim [it] seeks to press and for
each form of relief that is sought.” Id. (cleaned up); see CEI v.
FCC, 970 F.3d 372, 382 (D.C. Cir. 2020). In other words, for
each claim, the petitioner must establish that it has suffered an
injury in fact that is traceable to the challenged action and likely
to be redressed by a favorable decision. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). If any of these elements
is lacking, we may not consider the merits of a claim. See id.Finnbin’s final argument attacks the rule as applied to in-
bed sleepers. If the rule were arbitrary only as applied to that
narrow category of infant sleep products, we would vacate it
only as so applied: Successful challenges to one aspect of a
rule yield partial vacatur unless there is “substantial doubt” that
the agency would have left the balance of the rule intact. North
Carolina v. FERC, 730 F.2d 790, 796 (D.C. Cir. 1984); see
NRDC v. Wheeler, 955 F.3d 68, 81–82 (D.C. Cir. 2020). And
there is no reason to think that the CPSC, if it could not lawfully
apply its new safety rules to in-bed sleepers, would have
preferred no new rules at all. So Finnbin’s argument about the
asserted benefits of in-bed sleepers, if successful, would yield
only vacatur of the rule as applied to in-bed sleepers. And
because Finnbin manufactures a different kind of infant sleep
product—baby boxes—that remedy would not redress its
economic injury.
In response, Finnbin argues that partial vacatur would
enable it to begin selling baby boxes as in-bed sleepers. But to
confer standing, an injury must be “actual or imminent, not
13
conjectural or hypothetical.” Defs. of Wildlife, 504 U.S. at 560(cleaned up); see Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013). Finnbin offers nothing to support its bald assertion
that, but for the final rule, it “could and would market its baby
boxes … as in-bed sleepers.” Reply Br. at 28. For one thing,
this statement strains credulity. As the CPSC points out, it is
hard to see how Finnbin could market its product—a cardboard
box with sides nearly a foot tall—as one to facilitate
bedsharing. And regardless, “general averments, conclusory
allegations, and speculative some day intentions are inadequate
to demonstrate injury in fact.” Worth v. Jackson, 451 F.3d 854,
858 (D.C. Cir. 2006) (cleaned up).
IV
We deny in part and dismiss in part the petition for review.
So ordered.