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Monday December 12, 2022

Functional Equivalence Is Debate in CPSC's Amazon Case

Whether there is a duty to remedy products that are functionally equivalent to those found to be hazardous is among the debates in recent filings in CPSC's administrative suit to force recalls by Amazon. According to CPSC (

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"[T]he Commission's authority extends to products that are 'functionally equivalent' to those presenting a substantial product hazard, as evidenced by the reporting obligations of Section 15(b) and the replacement remedy language in Section 15(d)(1)(B)… Enforcement of these provisions includes authority over products that differ only in size, color, or other immaterial ways from a product determined to present a substantial product hazard and over products that present the same hazards identified in the Subject Products. For this reason, as discussed in prior briefing, the Commission has long included such products in remedies for both voluntary and mandatory corrective actions."

But according to Amazon (

"Complaint Counsel asks the Presiding Officer to order Amazon to take action regarding 'functionally equivalent' products. In doing so, Complaint Counsel fails to identify any statutory authority that would permit such an order. And the statute itself controverts Complaint Counsel's interpretation. Section 15(d), for example, provides that the Commission may order relief only for 'such product[s]' that the Commission has already 'determine[d]' to constitute a substantial product hazard…Complaint Counsel fails to address this limitation. Complaint Counsel similarly fails to acknowledge that Congress is well aware of the terminology for 'equivalent' products, as exemplified in its use of such terms in defining a 'replacement' product in Section 15(d) itself…But Congress nonetheless declined to use such language when setting the limits of the Commission's remedial authority…"
"…Its conclusory assertion regarding color differences is illustrative. According to Complaint Counsel, two products of the same size but different colors are functionally equivalent, but Complaint Counsel provides no evidence in support of that claim. Such conclusory assumptions are particularly dubious in the consumer product context where minor changes between products can have important results. Take children's sleepwear, for example. The use of different dyes in the same fabric-type could alter the degree to which that garment is flammable."

Amazon also is making constitutional arguments echoing those in other cases related to separation of powers as well as to the removal protections of both commissioners and the presiding administrative law judge.