AHFA seeks delay in implementation of CPSC furniture stability rule

Petitioners also ask for an expedited review of a ‘staggeringly broad’ standard that ‘will outlaw the manufacturing of nearly every model of clothing storage furniture as of May 2023

WASHINGTON —  The American Home Furnishings Alliance and other petitioners have requested a delay in the implementation of the U.S. Consumer Product Safety Commission’s proposed mandatory stability ruling for clothing storage units.

The AHFA, along with the Mississippi Manufacturers Association and the Mississippi Economic Council, requested an emergency stay of the May 24, 2023, implementation date of the rule, pending a review by the U.S. Court of Appeals for the Fifth Circuit.

The petitioners asked the court to perform a judicial review of the stability rule on Dec. 5. In addition to the stay, they also are asking the court to perform an expedited review of the CPSC rule, which aims to prevent tip-over incidents that injure and kill children.

The Dec. 12 motion indicated that the CPSC is opposing the stay in the implementation date, but has consented to an expedited consideration. Home News Now has reached out to the CPSC for comment and is awaiting a response.

“Petitioners respectfully request a ruling as soon as practicable,” the motion stated. “This is a clear case for pausing a staggeringly broad CPSC rule with obvious legal vulnerabilities” as one commissioner put it.

The reference was to a comment from CPSC Commissioner Peter A. Feldman, who voted against the implementation of the standard on Oct. 19. His actual statement was: “We have done too much work and invested too many resources to push through a final rule that I believe has legal vulnerabilities. A rule that is stayed or overturned offers zero consumer protections.”

The Dec. 12 motion went on to say that the CPSC final rule issued on Nov. 25 “will outlaw the manufacturing of nearly every model of clothing storage furniture as of May 2023.”

“Every year, Americans buy over 20 million of these items, including dressers, chests, armoires and other pieces,” the motion went on to say. “Those sales sustain a $7 billion industry, largely comprised of small businesses represented by organizations like the petitioners. All but a tiny fraction of furniture units are safely used, thanks to industry’s successful collaborations with consumer groups and CPSC to strengthen voluntary safety standards.”

“Under the rule, however, these businesses must redesign tens of millions of furniture items within months to satisfy CPSC’s novel criteria for preventing tip-overs, which happen when people climb on or pull over furniture not properly anchored to walls,” the motion continued. “CPSC’s furniture design criteria are so onerous that countless manufacturers will go out of business, and countless consumers already grappling with inflation may be unable to afford new furniture.”

“Families with young children in America today already face extreme financial pressures that frequently push them to the second-hand market when furnishing a child’s room,” said Andy Counts, AHFA chief executive officer, in a statement the AHFA issued Monday evening. “The CPSC rule makes new, compliant dressers and chests less affordable and more out of reach for the families that need them most.”

The motion also refers to another alternative that has been supported by AHFA, parent groups and elected officials called the STURDY (Stop Tip-Overs of Risky Dressers on Youth) Act. If passed by Congress and signed by the president by year end, the STURDY Act would supersede the CPSC ruling.

But Monday’s motion argues that the CPSC’s final rule issued Nov. 25 effectively “thumbs its nose at pending legislation that would direct CPSC to consider adopting a new voluntary standard that the furniture industry, consumer groups and parents support. The Senate unanimously passed that bill, and the House is currently considering it — yet CPSC rushed ahead with its sweeping mandatory rule instead. A stay of this revolutionary rule is warranted.”

The motion went on to state that “the CPSC’s unconstitutional structure — in which an agency with economy-wide powers lacks direct accountability to the president — precludes the agency from validly promulgating this rule.”

It also said the ruling is also invalid because it defies several provisions of the Consumer Product Safety Act.

“CPSC failed to identify real, not speculative risk,” the motion stated. “Nor did the CPSC use the least burdensome means for addressing risk.”

The motion states that the CPSC’s stability test, product definition, hangtag labels with “compelled disclosures” and effective date are “far more onerous than reasonably necessary to address tip-over harm.”

It also said that the CPSA bars the CPSC from overriding effective voluntary standards —“exactly what the CPSC did here.”

“Finally, the CPSA limits CPSC to issuing safety rules only if the cost-benefit breakdowns are reasonable; the rule’s is not.”

Other points the petitioners note in the filing are as follows:

+ The rule fails due process under the Administrative Procedure Act including “failing to disclose key underlying data and promulgating a Final Rule riddled with new data, justifications and requirements CPSC never exposed to the rigors of the notice and comment process.”

+ The rule imposes “irreparable harm in spades,” the motion states, adding that the CPSC acknowledges the rule will “ban nearly every existing covered furniture model, forcing petitioners’ members to immediately undertake herculean efforts to redesign, rebuild, retest and redistribute tens of millions of products within mere months.”

+ These massive costs, it states, “are unrecoverable because CPSC enjoys sovereign immunity.”

+ The rule, it states, will also “inflict severe, irremediable intangible harms, like loss of innovation and consumer goodwill.”

In its release on Monday evening, the AHFA said that the motion also explains how the CPSC rule “hampers the agency’s own public safety goal by reducing access to compliant clothing storage furniture and confusing the public about product stability with an ambiguous two-point rating system.”

This is in reference to a “stability rating” manufacturers must calculate for each unit that is intended to help shoppers distinguish “more stable” products from “less stable” products.

AHFA has noted that stability testing should provide consumers with an assurance of compliance, not a sliding scale of “more” or “less” stable. The AFHA went on to describe the CPSC rule as “staggeringly broad” and has said that the complexity of its performance testing requirements will make it unenforceable.

In its statement issued Monday evening, the AHFA said that the CPSC has 10 days to file a brief responding to AHFA’s motion. At that point, the court is expected to make a determination on whether to pause the rule’s effective date pending its ongoing review.

Thomas Russell

Home News Now Editor-in-Chief Thomas Russell has covered the furniture industry for 25 years at various daily and weekly consumer and trade publications. He can be reached at tom@homenewsnow.com and at 336-508-4616.

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