The difference between laws and regulations are sometimes misunderstood, and for good reason. It is not exactly intuitive. In this post we will do our best to break down the legal layers and show how they apply to consumer product safety.
Laws v. Regulations – What’s the difference?
Congress, and only Congress, creates laws. Federal executive departments and administrative agencies write regulations to implement the authority of laws. Regulations (as well as Executive Orders and Proclamations) are ancillary or subordinate to laws but both laws and regulations are enforceable. The U.S. Code is the official compilation of current, codified laws by subject; the U.S. Statutes-at-Large is the official chronological compilation of all laws; and the Code of Federal Regulations is the official compilation of regulations.
Got it? You can also think about it in terms of Checks and Balances, the concept upon which our government was originally designed. In general, the Legislative branch creates the laws, the Executive branch determines how to implement them through regulations, and the Judicial branch decides whether the laws are constitutional and were properly followed.
Do note, however, that not all laws enacted by Congress require or allow regulations to be layered on top. We will come back to this shortly.
How does this apply to the CPSIA?
In the case of the Consumer Product Safety Improvement Act, the bill initiated in congress was called: H.R.4040, Title: To establish consumer product safety standards and other safety requirements for children’s products and to reauthorize and modernize the Consumer Product Safety Commission. After the bill was passed by congress and signed by the President on August 14, 2008, it became law. Title 15, Chapter 47 of the U.S. Code is dedicated to Consumer Product Safety and is where you can find the full text of the current law, although it can take several months or even a year or more before all the changes are reflected in the published books.
The CPSIA is an example of a law that requires an Executive branch agency, the Consumer Product Safety Commission (CPSC) in this case, to go back and interpret certain sections of the law, which the CPSC has been working on since the Act passed and continue to do now. The CPSC’s “final rulings” then become official, legally enforceable regulations. Again, regulations are published in the Code of Federal Regulations (CFR). CPSC regulations can be found in CFR Title 16: Commercial Practices, Chapter 2: Consumer Product Safety Commission.
What about the Federal Register?
Before finalizing a ruling, the CPSC publishes “notices of proposed rulemaking” in the Federal Register. The Federal Register is published daily and includes notices, rules, proposed rules, and executive orders, etc. It is here that you will find published copies of staff proposals if and when the Commission approves them.
Because the FR is chronological and includes documents from many agencies, there is not one section for the CPSC, whereas the Code of Federal Regulations (CFR) is a compilation the regulations published in the Federal Register (FR), organized into chapters by topic. You can think of the CFR as just a bound “book” of finalized regulations, and the FR as all the steps (published documents) that were taken to get there.
What are Standards?
Section 2056 of the U.S. Code (15, 47, 2056) grants the CPSC the power to impose product safety requirements, or standards. The Code specifies that the CPSC is to rely on voluntary standards rather than promulgating rules whenever voluntary standards are likely to “adequately reduce the risk of injury” and where it is “likely that there will be substantial compliance.” Standards may be drafted by the CPSC or by outside organizations or both. If a standard becomes mandatory, it is considered a regulation. In cases where the Commission feels a voluntary standard will not protect the public, it is allowed to set a mandatory standard, the procedures for which are set out in section 2058.
How does the CPSEA fit into the picture?
The Consumer Product Safety Enhancement Act (CPSEA) is being proposed because, as written, the CPSIA does not give enough authority to the CPSC to implement certain regulations. Two of the main purposes of the CPSEA are 1) to correct problems with the CPSIA that the CPSC is powerless to address, and 2) to give the CPSC more power to implement certain regulations where additional clarification is needed or may be needed in the future.
The CPSEA is essentially an attempt to pass a law that will amend a previously passed law. This is commonly done, but typically more time passes between the Acts. In a previous blog post, we listed the Acts that have been passed since the original Consumer Product Safety Act (CPSA) passed in 1972.
Hopefully it is now at least a tiny bit clearer than mud. As always, please note that this post is based on WeMakeItSafer’s understanding and is offered for informational purposes only, not legal advice.