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1.6.6 Consumer Product Safety Act

The Consumer Product Safety Act preempts state safety standards and regulations that prescribe requirements as to performance, composition, contents, design, finish, construction, packaging, or labeling that are designed to deal with the same risk of injury as a federal standard unless the state standard is identical to the federal standard.343 The Act also has a savings clause stating that compliance with consumer product safety rules or orders does not relieve any person from liability at common law or under state statutory law to any other person.344

In 2008, Congress passed the Consumer Product Safety Improvement Act,345 which provides that the scope of preemption set forth by the Act “may not be expanded or contracted in scope, or limited, modified or extended in application, by any rule or regulation thereunder, or by reference in any preamble, statement of policy, executive branch statements, or other matter associated with the publication of any such rule or regulation. In accordance with the provisions of those Acts, the [Consumer Product Safety Commission] may not construe any such Act as preempting any cause of action under State or local common law or State statutory law regarding damage claims.”346 This provision ends the Consumer Product Safety Commission’s practice of purporting to preempt state laws through regulations and preambles to regulations, and also evidences Congress’s intent that common law and state statutory claims are generally preserved.347

In light of the savings clause, courts found little basis for the position that the Act expressly preempts consumer claims, even before the 2008 law.348 The mere establishment of minimum standards by the Consumer Product Safety Commission will rarely, if ever, impliedly preempt state law claims based on more rigorous common law safety obligations.349 Nor does the Act prevent a suit under state law to force a manufacturer to repair a product.350 However, a court may find conflict preemption if compliance with both state and federal standards would be impossible or state liability would defeat the purposes of the Act.351


  • 343 {343} 15 U.S.C. § 2075(a).

  • 344 {344} 15 U.S.C. § 2074(a).

  • 345 {345} Pub. L. No. 110-314, 122 Stat. 3016 (2008).

  • 346 {346} 15 U.S.C. § 2051 note.

  • 347 {347} See Catherine M. Sharkey, Inside Agency Preemption, 110 Mich. L. Rev. 521, 561–563 (2011).

  • 348 {348} See, e.g., Eberts v. Kawasaki Motors Corp., 306 F. Supp. 2d 890 (D.N.D. 2004).

  • 349 {349} Leipart v. Guardian Indus., Inc., 234 F.3d 1063 (9th Cir. 2000) (strict liability, negligence, and failure to warn claims not preempted); Eberts v. Kawasaki Motors Corp., 306 F. Supp. 2d 890 (D.N.D. 2004) (consent decree that set minimum standards for all-terrain vehicle (ATV) warnings and training did not preempt design defect and duty to warn claims); Tober v. Graco Childrens’ Products, Inc., 2004 WL 1085178 (S.D. Ind. Mar. 4, 2004). But see Mwesigwa v. DAP, Inc., 637 F.3d 884 (8th Cir. 2011) (Act preempts failure to warn and design defect claims).

  • 350 {350} Churchill Vill. v. Gen. Elec. Co., 169 F. Supp. 2d 1119 (N.D. Cal. 2000), aff’d on other grounds, 361 F.3d 566 (9th Cir. 2004).

  • 351 {351} Frith v. BIC Corp., 863 So. 2d 960 (Miss. 2004) (federal standard requiring cigarette lighters to be resistant to operation only by eighty-five percent of a children’s test panel impliedly preempted negligence and products liability claims for lighter that child was able to operate).