The Consumer Product Safety Commission (CPSC) has targeted a small business in Oklahoma. Despite Leachco Inc.’s excellent safety record, the CPSC claims its infant lounger cushion poses a safety hazard. But the FBI’s narrative is aggressive, and its actions violate the constitutional separation of powers at every stage.
In 1988, Jamie and Clyde Leach founded a company in their hometown of Ada, Oklahoma, manufacturing products that help parents meet the challenges of raising infants and young children. Since then, Leachco Inc.’s product lines have expanded and earned the trust of countless expectant mothers, families and caregivers.
But the CPSC threatens the small company’s future with a liability theory that, if embraced, could wreak havoc with product manufacturers, distributors and retailers.
To make a bad situation worse, the CPSC is pursuing its allegations entirely internally. CPSC officers voted to institute administrative proceedings against Leachco; CPSC officials referred the case to an Administrative Judge (ALJ); and the officers themselves will consider any appeal against the ALJ’s decision. Like administrative procedures throughout the federal government, such an internal “trial” piles up regulated parties and denies them their right to a fair trial in a neutral court.
The Leaches are fighting back – defending their business and their constitutional rights.
The product in question is the Podster, a stretcher that Jamie, a registered nurse, designed for caregivers to safely secure an infant. The podster is not a crib and is not intended for sleeping – in fact, as the CPSC itself acknowledges, Leachco has always given explicit warnings and instructions that the podster should only be used when a toddler is awake and an adult is supervising them.
Leachco has sold more than 180,000 podsters since launching the product in 2009. The Leaches themselves and thousands of other families have certainly used Podster.
But the CPSC claims two infant deaths, one in 2015 and one in 2018, prove it’s unsafe. In both cases, users ignored Leachco’s warnings and common sense.
In one case, day care workers violated state law and the day care’s own rules when they placed an infant in a pod in a cot and left the infant unattended for over an hour and a half. The day-care center then lost its license and was closed. The other infant had been placed in the pod and then placed on an adult bed between the infant’s adult parents, along with bedding and pillows, to sleep together – contrary to Leachco’s warnings and instructions.
Both tragic cases show misuse of the podster, not defects in the product itself. These facts appear to be irrelevant to the CPSC, which has requested that Leachco recall the podster. According to the CPSC, the podster poses a “significant risk of injury” because it is “reasonably foreseeable” that caregivers could ignore Leachco’s warnings and abuse the podster.
According to this legal theory, all manufacturers and retailers would be liable for damage caused by the consumer’s negligent or even intentional misuse of a safe product, even if the manufacturer provided warnings and instructions on safe use. This redesign of product liability – based on the agency’s own non-binding “guidelines” – would stifle innovation and shut down many companies for flimsy reasons.
Instead of submitting this legal theory to an independent judge and jury, the CPSC will itself decide whether the CPSC has proved its case. Basically, the agency can act as a prosecutor, trial judge, jury, and appellate judge — all but guaranteeing a biased trial.
After CPSC officers voted to authorize the administrative action against Leachco, Commissioner Rich Trumka Jr. warned, “If companies refuse to recall products that CPSC employees determine are fatal, they should expect an administrative complaint to be filed quickly.” follows.”
Only after this administrative ordeal can Leachco appeal to a real court. And even then, Leachco’s rights are violated because the agency’s final decisions must be treated with respect. This undermines the independence of the trial court and Leachco’s right to a hearing before an independent judge.
The Leach family strikes back. Represented by the Pacific Legal Foundation, Leachco filed a lawsuit in federal court to challenge the CPSC’s unconstitutional court farce and compel the agency to bring its allegations before an independent court, unencumbered by its findings of fact and legal conclusions.
If there is any “danger” in any of this, it is not Leachco’s product. It is the CPSC’s abusive tactic. When the agency has a case, they have to prove it in court before a judge and jury.
Oliver Dunford is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ freedoms when they are threatened by government encroachment and abuse. Follow him on Twitter @ojdunford.