While independent regulatory agencies, like the Consumer Product Safety Commission (CPSC or the Commission), , recent events indicate the CPSC is likely not free from the Trump Administration’s push for an Executive Branch for the people, by the people.  Initial public statements from acting Commission leadership seemingly indicate a willingness to work with President Trump.  And though the CPSC has taken only limited public actions to implement the many directives ordered by the President to date, the CPSC has confirmed that it is fully complying with all applicable Executive Orders.  Stakeholders in the consumer products industry should be forewarned that their dealings with the Commission and its anticipated regulatory agenda could soon change, though they should continue to take steps to prepare for the implementation of key new rules until the Commission provides further guidance.

An Executive Branch for the People, by the People

In the (CPSA), Congress established the CPSC and directed the Commission to operate with independence “to protect the public against unreasonable risks of injuries and deaths associated with consumer products.”  Yet, the Trump Administration’s recent actions first, attempting to dismantle two other independent agencies, the U.S. Agency for International Development (USAID) and Consumer Financial Protection Bureau (CFPB), and subsequently issuing a yet unnumbered executive order, entitled make clear that the new administration will seek to make independent agencies less independent.  Indeed, the February 18, 2025 Executive Order criticizes the very existence of independent regulatory agencies and laments the lack of “sufficient accountability to the President, and through him, to the American people.” The Order seeks to give the President broad oversight over independent agencies, requiring submission of major regulations to the White House Office of Management and Budget (OMB) for review. Further, the Order seeks to require independent agencies to hire a White House liaison and bars such agencies from taking legal positions that differ from any taken by the President or Attorney General.  Such directives create an inherent risk of conflict with the CPSC’s stated mission and congressionally mandated independence in the CPSA.  That said, recent communications from new Commission leadership indicate a potential willingness to cooperate—at least for the time being—either through express agreement or by trying to lay low.

On January 21, 2025, the day after President Trump took office and issued a flurry of new executive orders, as is customary when the political party of the President changes, Alex Hoehn-Saric, a 2021 Biden appointee, stepped down as Chair of the Commission.  The Commission then Peter Feldman, a 2018 Trump appointee, as the acting chair the following day.  Acting Chair Feldman has since issued three statements: The , issued on January 22, 2025, announced promotions and appointments among key senior staff. The , issued on January 24, 2025, announced the termination of all diversity, equity and inclusion (DEI) programs and activities, in line with , which revoked a series of prior Executive Orders implementing DEI initiatives, and , “Ending Radical and Wasteful Government DEI Programs and Preferences,” among other executive orders.  See President Trump’s “Rescission” Executive Order (Jan. 21, 2025).  The , issued on February 4, 2025, “applaud[ed] President Trump’s bold action to revoke the de minimis privilege for all imports from China,”[1] stating the Commission “has long been concerned about the enforcement challenges when Chinese firms, with little or no U.S. presence, distribute consumer products under the de minimis provision,” signaling the CPSC’s support of and , ordered February 1, 2025 and February 5, 2025 respectively. 

Notably, despite its prior availability, the CPSC’s Operating Plan for Fiscal Year 2025, which laid out the Commission’s intended direction and priorities, including its DEI programs and regulatory priorities, on its website as part of the Commission’s overall website content review pursuant to recent Executive Orders. 

Other Potentially Relevant Orders

On January 20, 2025, and in the days since, President Trump signed a flurry of other executive orders, which could be of relevance to a less independent CPSC.  Among them are the following three Orders:

• On January 20, 2025, President Trump issued an that called for a “regulatory freeze” and had three main directives instructing federal agencies: (1) not to propose or issue any new rules “until a department or agency head appointed or designated by the President after noon on January 20, 2025, reviews and approves the rule”; (2) immediately withdraw any new rules sent but not yet published in the Federal Register so that they can be reviewed and approved per the first directive; and (3)  â€śconsider” a 60 day postponement for the effective date of any rules that have been published in the Federal Register or have not taken effect and further “consider” opening a comment period for any such rules.
• Also on January 20, 2025, President Trump signed , “Unleashing Prosperity Through Deregulation,” which launches a “” requiring agencies to “identify at least 10 existing rules, regulations, or guidance documents to be repealed” whenever they issue a new rule, regulation, or guidance.
• On February 11, 2015, President Trump issued an implementing his “Department of Government Efficiency” (DOGE) workforce optimization initiative.  Among other things, the Order directs an approximately 75% reduction in staff (indicating that for every one staffer hired, four must be eliminated).  The Order also directs Agency Heads to, within 30 days, submit “a report that identifies any statutes that establish the agency, or subcomponents of the agency, as statutorily required entities . . . and whether the agency or any of its subcomponents should be eliminated or consolidated.” Notably, the Order excludes public safety functions, which would seem to speak directly to , although that same argument could be made about the Federal Emergency Management Agency (FEMA), which has drawn President Trump’s recent attention (and criticism).

While the CPSC’s relatively small size and budget should not place it high on the list for the same deregulation initiatives and staff cuts as other agencies, there is no telling what might happen in the coming months. 

Next Steps

Though we do not anticipate the CPSC’s regulatory agenda as it relates to new e-filing requirements for certificates of compliance, e-bikes, and certain infant products to change at this time, based on the CPSC’s continued focus on and discussion of these initiatives at this year’s International Consumer Product Health and Safety Organization (ICPHSO) Annual Symposium, it is anticipated that the Commission will reconsider the remainder of its regulatory agenda and priorities. 

Stakeholders should continue preparations for the implementation of the new e-filing requirements for certificates of compliance which go into effect July 8, 2026 for products not imported into a Free Trade Zone (FTZ), and July 8, 2027 for products imported into an FTZ until the CPSC provides contrary guidance or otherwise indicates a delay or freeze to this regulation. 

The CPSC’s responses to Executive Orders and the Trump Administration’s directives are rapidly evolving.  With this continued uncertainty, stakeholders should continue monitoring for updates from the Commission. Stakeholders should also continue their preparations for the implementation of major regulations until the CPSC issues further guidance.  Â鶹´«Ă˝ & Lardner’s Consumer Product team continues to monitor these and other CPSC-related developments. For information regarding how these Orders may affect your company’s interactions with the CPSC, please contact us.

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[1] The referenced “de minimis privilege” refers to the current exemption under the Tariff Act (19 U.S.C. § 1321) for certain shipments valued below $800, which permits the importation of such shipments without filing otherwise required paperwork concerning the product and exempts such products from inspection at U.S. points of entry.  The de minimis shipment exemption is limited to shipments with an aggregate value less than $800 per day by a single importer, and is generally taken advantage of by international e-commerce retailers.

In 2021 the Environmental Protection Agency (“EPA”) issued its strategic roadmap to address a broad group of thousands of manmade chemicals known as per- and polyfluoroalkyl substances (“PFAS”), pledging to use “every tool in the toolbox” to address the chemicals. So far in 2024, EPA has taken a number of steps to execute on the goals of its 2021 roadmap. Among those steps were finalizing designation of certain PFAS as “hazardous substances,” finalizing standards for a number of PFAS in drinking water, issuing interim guidance for PFAS disposal methods, and proposing a rule for defining certain PFAS as “hazardous constituents”.  The breadth of EPA’s rules and guidance is far reaching as the manufacture and use of PFAS are not limited to small or discrete sectors of regulated industry, rather PFAS have been used in a wide variety of industries. The imposition of restrictions and limits on PFAS are likely to have broad implications for manufacturers all along the supply chain.

Two PFAS Chemicals Designated as Hazardous Substances Under CERCLA

In April 2024, the EPA issued a designating two PFAS, perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Industry groups have filed challenges to portions of the rule which are currently pending in court; however, the rule went into effect on July 8, 2024 as those challenges proceed.

Designating PFOA and PFOS as hazardous substances triggers numerous requirements.  The primary impact of the rule is that it incorporates PFOS and PFOA into CERCLA’s strict, joint and several liability framework. This change grants EPA the power to investigate releases of PFOA and PFOS and compel potentially responsible parties (“PRPs”), including owners and operators of a property or facility, to remediate releases of PFOA and PFOS through the specific CERCLA enforcement provisions. This could lead to large costs for manufacturers tasked with cleaning up existing and historic sites. Private parties may now also take action under CERCLA to pursue cost recovery and contribution actions.

In addition, there are new immediate reporting requirements if PFOS or PFOA releases from a facility exceed a designated “reportable quantity” (one pound within 24 hours). If the release exceeds this quantity, the responsible party must report to the National Response Center and relevant state or tribal authorities. Also, because many states include CERCLA hazardous substances under their cleanup statutes, designating PFOA and PFOS as hazardous substances may provide states the authority to require remediation under their own individual state laws.

Finally, the designation of PFOA and PFOS under CERCLA requires the U.S. Department of Transportation to classify these substances as hazardous materials for purposes of transport under the Hazardous Materials Regulations. Overall, the rule will likely have significant implications for closed and current remediation sites as well as regulated parties’ current release reporting procedures and policies and transportation requirements.

EPA Issues Regulation Addressing PFAS Contamination in Public Water Systems

In April 2024, EPA also its first national drinking water regulation to limit PFAS contamination in drinking water. The rule establishes enforceable Maximum Contaminant Levels (“MCLs”) for six PFAS[1] that have been identified in drinking water. The rule sets the MCL for the specific set of PFAS at 4 nanograms per liter or parts per trillion (“ppt”) for PFOS and PFOA and includes 10 ppt for four additional PFAS compounds.

The immediate impact of the rule is that public water systems must test and monitor for the identified PFAS by 2027. The regulation requires public water systems to release public information on PFAS levels in drinking water beginning in 2027. Additionally, public water systems have until 2029 to decrease PFAS levels if monitoring shows the levels exceed the applicable MCL. Beginning in 2029, public water systems must remediate PFAS contamination if they are in violation of one or more of the established MCLs and the system must provide notification to the public of such a violation.

In the short term, these standards will set compliance obligations and impose significant costs on public drinking water utilities.  In the longer term, the new standards may create a basis for states or EPA to attempt to establish very conservative maximum PFAS concentrations for discharges that have the potential to impact drinking water sources, including groundwater and surface water discharge standards, which will in turn impact facility stormwater and wastewater permitting.

EPA Issues Interim Guidance on the Destruction and Disposal of PFAS and PFAS-Containing Materials

On April 8, 2024, EPA issued on the destruction and disposal of PFAS and PFAS-containing materials. This guidance is the second of its type, as EPA issued an in 2020 as required by the National Defense Authorization Act (“NDAA”). The NDAA directs EPA to address the storage, disposal, and destruction of PFAS and PFAS-containing materials and requires EPA to review and update its guidance periodically. The new guidance retains three established technologies from the 2020 initial guidance that can destroy PFAS or control PFAS release into the environment: thermal destruction (high heat treatment), landfilling, and underground deep well injection. The guidance raises associated uncertainties and key data gaps that EPA has indicated require additional research and evaluation.  

The guidance aims to provide decision-makers with information allowing for identification of the most effective destruction, disposal, or storage method of PFAS-containing materials and waste. EPA does not make recommendations but urges decision-makers to consider all available factors and data to minimize PFAS release and contamination in the destruction and/or disposal process. Included in the guidance are modern technology evaluation frameworks allowing decision-makers to assess emerging innovative destruction and disposal methods. Overall, the guidance acts as a reference point and encourages decision-makers to prioritize disposal, destruction or storage methods that have a low potential for PFAS release into the environment, but this second interim guidance continues to leave open EPA’s specific position on the preferred disposal methods pending additional research.  As a result, regulated parties are still generally on their own in predicting and evaluating the potential risks associated with a particular disposal method for PFAS and PFAS-containing materials.

EPA Proposal Seeks to Regulate Nine PFAS as Hazardous Constituents under RCRA

On February 8, 2024, EPA published two proposed rules designed to provide EPA enforcement power to clean up PFAS contamination under the Resource Conservation and Recovery Act (“RCRA”). These rules, if adopted, would list nine PFAS[2] as “hazardous constituents” under RCRA.

If finalized, the rules will expand EPA’s ability to require PFAS cleanup at sites that are subject to RCRA jurisdiction. While listing the nine specific PFAS as “hazardous constituents” does not make these specific PFAS “hazardous wastes” under RCRA, EPA may use this “hazardous constituents” designation to support a later “hazardous waste” classification. Even though the proposal does not classify the specified PFAS as hazardous waste, the rule would still allow EPA to require cleanup under the RCRA corrective action requirements.

The second proposal issued would broaden the definition of “hazardous waste” during cleanups at waste facilities. According to EPA, this proposed rule would harmonize the regulations with the statutory definition of “hazardous waste.” If this rule is adopted, there could be stricter and potentially more expensive cleanup requirements for PFAS and other emerging contaminants at RCRA corrective action sites. These proposed rules would expand the cleanup obligations at existing sites managed under RCRA corrective action orders and provide the EPA authority to issue new corrective action orders to address these nine PFAS or any emerging contaminants.

Looking Forward

The rules and guidance previewed above are just a handful of the actions EPA has taken to date to address PFAS and we expect additional proposals to continue to be developed and implemented. In addition to its 2021 strategic roadmap, EPA has made PFAS an enumerated initiative in its National Enforcement and Compliance Initiatives for the 2024 to 2027 review cycle.  We anticipate that EPA will continue to issue specific proposals aimed at PFAS in addition to pursuing cleanup actions and enforcement under its newly finalized rules.  The scope of these rules and proposals not only affect historic and current cleanup sites, but also the transport and release of PFAS from current facilities, which will have broad implications for manufacturers throughout the supply chain.

Special thanks to Noah Koleske, a summer associate in Â鶹´«Ă˝’s Milwaukee office, for his contributions to this article.

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2024 Manufacturing Manual

As you navigate the rapidly-evolving manufacturing landscape, the pace of change – from digital disruption to supply chain resiliency to the ubiquity of AI – has never been greater. In Â鶹´«Ă˝â€™s 2024 Manufacturing Manual, authors from diverse practices and perspectives will release weekly articles that provide a comprehensive “end-to-end” analysis of the manufacturing industry’s legal landscape. Our passion is empowering manufacturers to navigate a rapidly changing world with confidence and agility by providing the knowledge, insights, and legal strategies you need to flourish. We hope this Manufacturing Manual helps you unlock new opportunities for growth, innovation, and success.

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[1] The specific PFAS include five individual PFAS: PFOA, PFOS, PFNA, PFHxS, and HFPO-DA. Further, the EPA is including a mixture of two or more of four PFAS: PFNA, PFHxS, HFPO-DA, and PFBS.

[2] The nine specific PFAS proposed for listing are: (1) PFOA, (2) PFOS, (3) PFBS, (4) HFPO-DA or GenX, (5) PFNA, (6), PFHxS, (7) PFDA, (8) PFHxA, and (9), PFBA.