Milice v. Consumer Product Safety Commission

This case concerns the public’s right to read the words of the law. Federal regulations contain thousands of standards that “incorporate by reference” other materials. The privately drafted standards encompass important health, safety, and environment protections, including child product safety rules, rules addressing food additives, and environmental safeguards for oil wells and pipelines. Although the incorporated material has the same force of law as other federal regulations, it is not published in the Federal Register or the Code of Federal Regulations, and it is not available on the agencies’ websites.

This case was filed in the U.S. Court of Appeals for the Third Circuit to challenge the Consumer Product Safety Commission (CPSC) infant bath seats safety rule, which incorporates by reference a American Society for Testing and Materials (ASTM) standard. The standard is not available from the CPSC, but only from ASTM, subject to terms set by ASTM. Representing nine law professors, we filed an amicus brief explaining that incorporation by reference impedes the public’s legal right of access to the law. Unlike the relief requested by the petitioner, however, the brief argues that the appropriate relief in this case is remand to the CPSC without vacatur, with instructions that the CPSC publish its rule.

On February 18, 2021, the Third Circuit ruled that it lacked jurisdiction over the petition for review of a CPSC safety standard for durable infant products because the relevant statute specified that challenges to such standards should be filed in the D.C. Circuit, and it transferred the case to the D.C. Circuit. In an opinion issued on July 2, 2021, the D.C. Circuit held that the petition was untimely and dismissed it without addressing the substance of the challenge.