January 18, 2013 Articles

Court Enjoins CPSC from Publishing Materially Inaccurate Report

By Tonya G. Newman

In a highly anticipated decision, the US District Court for the District of Maryland recently enjoined the Consumer Product Safety Commission  ( CPSC) from publicly publishing a report implicating a consumer product.  Company Doe v. Tenenbaum, No. 8:11-cv-02958-AW, slip op. (D. Md. Oct. 9, 2012).  Notably, this is the first instance in which any court has prohibited the CPSC from posting a report on the controversial CPSC SaferProducts.gov website, which was mandated by the Consumer Products Safety Improvement Act of 2008 (CPSIA). The decision clarifies the standards the CPSC must meet before publishing reports on the database, when an agency decision becomes final for purposes of the Administrative Procedure Act (APA), and when an agency decision is entitled to either Auer or Chevron deference (rejecting the commission's claimed entitlement to both).

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