proceeding was brought under the provisions of the Flammable Fabrics Act and the Federal Trade Commission Act to determine whether certain mattresses manufactured by the proposed respondent failed to conform to the Standard for the Flammability of Mattresses. Enforcement counsel is currently involved in consent negotiations in an attempt to settle the matter. CSPC Docket No. 76-10: Craftmaster Products, Inc., Houston, Texas. An administrative action was filed against the named respondent on December 8, 1976. This proceeding was brought under the provisions of the Flammable Fabrics Act and the Federal Trade Commission Act to determine whether certain mattresses manfactured by the proposed respondent failed to conform to the Standard for the Flammability of Mattresses. Enforcement counsel is currently involved in consent negotiations in an attempt to settle the matter. CPSC Docket No. 76-11: A. Brandt Company, Inc., et al, Fort Worth, Texas. An administrative action was filed against the named respondent on December 22, 1976. This proceeding was brought under the provisions of the Flammable Fabrics Act and the Federal Trade Commission Act to determine whether certain mattresses manufactured by the proposed respondent failed to conform to the Standard for the Flammability of Mattresses. Enforcement counsel is currently involved in consent negotiations in an attempt to settle the matter. CONSENT AGREEMENTS ACCEPTED BY THE COMMISSION Final orders: Galaxy Carpet Mills, Inc., July 7, 1976. Greensboro Mfg. Co. (Genesco, Inc.), July 7, 1976. Garb-Age, Inc., August 2, 1976. G. Fox Co. (May Dept. Stores Co.), August 2, 1976. Jerolds Men's Shops, Inc. (Adam & Eve), August 2, 1976. Tri-Foam Sleep Products, Inc., August 31, 1976. Genuine Carpet & Rug, Inc., October 6, 1976. Guild Industries Corp., October 6, 1976. Foam-Tex Co., Inc., October 19, 1976. AAA Mattress Co., Inc., November 2, 1976. Shaw Industries, Inc., January 27, 1977. ENFORCEMENT OF COMMISSION ORDERS United States v. The Anaconda Company, et al., Mis. No. 77-0024 (D.D.C., Memorandum Opinion, June 15, 1977. Order June 30, 1977) appeal docketed, No. 77-1628 (D.C. Cir., July 18, 1977). The Commission on November 14, 1976, issued 59 subpoenas to various manufacturers of aluminum wire and electrical devices. Nineteen manufacturers refused to comply. The Commission sought and obtained enforcement of the subpoenas against these nineteen manufacturers in the D.C. District Court. The Court's order requiring production of the subpoenaed documents is in effect following a brief temporary stay and respondents (except Kaiser Aluminum and Chemical Corp.) have produced the subpoenaed documents. The Court held that the Commission was collaterally estopped from proceeding against Kaiser, because of the decision in Kaiser Aluminum and Chemical Corp. v. Consumer Product Safety Commission, 414 F. Supp. 1047 (D. Del. 1976), 428 F. Supp. 177 (D. Del. 1977), appeal docketed, No. 77-1874 (Third Cir. July 7, 1977). The Commission has appealed this ruling. Consumer Product Safety Commission v. O. N. Jonas Company, Inc., Civil Action No. 75-114R (N.D. Ga.). This is the Commission's first application pursuant to Section 9 of the Federal Trade Commission Act, applicable through the Flammable Fabrics Act, for enforcement of an "Order Requiring Access." The relief was sought oy the Commission's own attorneys upon the refusal of Jonas, a carpet manufacturer, to permit access to its books, records, and papers relating to "noncomplying" carpet. The Court initially ordered Jonas to grant access to these documents, including customer data. This order was stayed pending reconsideration. Subsequently, Jonas successfully challenged the Commission's capacity to bring this application by its own attorneys. However, in ruling on this question, the Court acknowledged the Commission attorneys could bring an application to enforce a subpoena issued by the Commission under the Flammable Fabrics Act. A motion to amend the application to substitute the United States of America as plaintiff to cure this technical deficiency was granted. On April 8, 1977, judgment for the plaintiff was granted, and Jonas was directed to permit the Commission access to its business records and documents, including customer data. United States v. Berven Carpets Corporation and Berven Rug Mills, Inc., Civil No. F76-129 (E.D. Cal.). This was an action by the United States on behalf of the Commission under the Flammable Fabrics Act and the Federal Trade Commission Act for enforcement of an Order Requiring Access to distribution records and customer data relating to a style of carpet manufactured by Berven. The action was filed June 29, 1976, and the Court ordered enforcement on September 7, 1976. Berven appealed but later complied with the District Court's order after the Court of Appeals denied a stay. The appeal was dismissed in the Ninth Circuit on August 25, 1977. United States v. Aladdin Carpet Mills, Inc., Civil Action No. C76–30R (N.D. Ga.). On March 9, 1976, the Commission, by its own attorneys, applied to the District Court for the Northern District of Georgia for enforcement of the Commission's Order Requiring Access for inspection of Aladdin's carpet plant under the Flammable Fabrics Act. The application was later amended to substitute the United States as plaintiff. After disposing of other motions, the Court on July 13, 1977, ordered respondents to permit Commission access to examine documentary evidence and denied access to collect samples and to inspect laboratory facilities until the Commission finds there is reason to believe that Aladdin's products violate flammability standards. The United States moved to amend the Court's restriction on the disclosure of information obtained through its order. That motion is pending before the Court. ACTIONS AGAINST THE COMMISSION American Apparel Manufacturers Association v. Consumer Product Safety Commission, No. 77-682 (D.D.C.) and U.S. App. No. 77-1407 (D.C. Cir.). This action was filed to expand the scope of the ban on TRIS treated children's clothing to include components. The District Court issued a preliminary injunction on May 3, 1977. The Court of Appeals vacated the District Court order on May 19, 1977 after the Commission decided to modify the ban. Aqua Slide 'N' Dive Corporation v. Consumer Product Safety Commission, U.S. App. No. 76-1713 (5th Cir.). A petition for review challenging the Commission's swimming pool slide standard issued under the CPSA was filed on March 19. 1976. It contends that, inter alia, the standard is arbitrary and capricious and is not supported by substantial evidence on the record. Briefs were filed and the oral argument was held on February 2, 1977. A decision is pending. ASG Industries Incorporated et al. v. Consumer Product Safety Commission, U.S. App. No. 77-1216 (D.C. Cir.). Case consolidated with Flat Glass Association of Japan et al. v. Consumer Product Safety Commission. This is a petition for review of the Standard for Architectural Glazing Materials as it applies to wire glass. The petition was filed on March 1, 1977. The petitioner challenges the standard on the grounds that the standard, as applied to wire glass, is not supported by substantial evidence. The petitioner's motion for a stay of the effective date of the standard as it applies to unpolished wire glass was granted pending review of the standard. All briefs have been filed. The case is pending oral argument. D. D. Bean and Sons v. Consumer Product Safety Commission, U.S. App. No. 77-1265 (1st Cir.). In this matter, a petition was filed on June 2, 1977 for review of the Matchbook Standard. Briefs are being filed. The same issue has been raised in two additional cases being considered with Bean v. Consumer Product Safety Commission. They are: Giglio v. Consumer Product Safety Commission, U.S. App. No. 77-1249 (1st Cir.) and Ohio Match v. Consumer Product Safety Commission, U.S. App. No. 77-1357 (1st Cir.). Chance Manufacturing Company v. Consumer Product Safety Commission, No. 77-1836 (E.D.N.Y.). This action was filed on September 14, 1977 to declare that an amusement park ride is not a consumer product and to enjoin the Commission from taking any action or making any public statements with respect to it. The District Court denied the application for a temporary restraining order and transferred the case to the District of Columbia where Commission action under -section 12 of the CPSA is pending. Chemical Specialties Manufacturers Association v. Consumer Product Safety Commission et al., No. 75-1722 (D.D.C.). This is an injunction and declaration that the Commission is without authority to obtain chemical formulas by means of a special order issued under Section 27(b)(1) of the CPSA. The plaintiff's motion for a preliminary injunction was denied. Cross motions for summary judgment were filed in October 1976. A decision is pending. Congoleum Industries v. Consumer Product Safety Commission, U.S. App. No. 75-3112 (9th Cir.). A petition for review was filed on September 22, 1975 challenging the application of the Standard for the Surface Flammability of Carpets and Rugs, and the authority of the Commission under the FFA to order a recall. The case is pending oral argument. Consumers Union v. Consumer Product Safety Commission et al., U.S. App. No. 75-2059 (D.C. Cir.). The plaintiff sued under the Freedom of Information Act to obtain the disclosure of television accident data which the Commission is willing to provide, but is prohibited from doing so by an order of the District Court of Delaware. The District Court for the District of Columbia found that no case or controversy exists and dismissed the action. The dismissal was appealed to the Court of Appeals for the District of Columbia Circuit, which on July 5, 1977, remanded the case to the District Court to decide whether the accident data is confidential. Environment Defense Fund & Robert H. Harris v. Consumer Product Safety Commission, No. 77-517 (D.D.C.). An action was filed on April 8, 1977 to compel the Commission to ban all TRIS treated clothing under the FHSA. The case was dismissed after settlement. Flat Glass Association of Japan et al. v. Consumer Product Safety Commission, U.S. App. No. 77-1238 (D.C. Cir.). A petition for review of the Standard for Architectural Glazing Materials was filed on March 7, 1977. The petition challenges the standard on grounds that (1) architectural glass is not a consumer product, (2) the standard is arbitrary and capricious, and (3) the standard is not supported by substantial evidence. The petitioner's motion for a stay of the effective date of the standard as it applies to polished wired glass was granted pending review of the standard. The case was consolidated with ASG Industries v. Consumer Product Safety Commission. All briefs have been filed. The case is pending oral argument. John Forester et al v. Consumer Product Safety Commission, U.S. App. No. 75– 1292 (D.C. Cir.). Numerous petitions for review were filed challenging the bicycle safety regulations issued by the Commission. The petitions challenged (1) the jurisdiction of the Commission to regulate bicycles under the FHSA, (2) the procedures by which the regulations were promulgated, and (3) the substantive requirements of the regulations in that they were alleged to be arbitrary and capricious. Most of the petitions were withdrawn and the remaining two were transferred to the United States Court of Appeals for the District of Columbia. On June 1, 1977 the Court found for the Commission on the jurisdictional and procedural issues. The Court approved all of the substantive requirements except for four that were remanded to the Commission and are awaiting consideration. GTE Sylvania Incorporated et al v. Consumer Product Safety Commission, No. 75-104 (D. Del.). Television manufacturers brought this action seeking to enjoin the Commission from releasing television accident data in response to a request under the Freedom of Information Act. The complaint contends that Section 6(b) (1) of the CPSA bars such disclosure. The Court issued a prelim inary injunction on October 23, 1975. Cross motions for summary judgment on the section 6(b) (1) issue have been filed and are awaiting oral argument. Kaiser Aluminum and Chemical Corporation v. Consumer Product Safety Commission, U.S. App. No. 77-1874 (3rd Cir.) This case is on Commission appeal from the U.S. District Court for Delaware. Plaintiff sought a mandatory injunction under section 6(b)(1) of the CPSA to compel the Commission to retract allegedly inaccurate and misleading statements concerning aluminum wire. The District Court held that aluminum wire was not a consumer product and directed the Commission to recall 3 documents on aluminum wire and refrain from issuing future statements. An appellate brief was filed by the Commission on October 15, 1977. Laminators Safety Glass Association v. Consumer Product Safety Commission, U.S. App. No. 77-1216 (D.C. Cir.). A petition for review of the final order of the Commission regarding the Standard for Architectural Glazing Materials was filed on September 23, 1977. Petitioners challenge the standard, as applied to laminated glass, on the grounds that it is not supported by substantial evidence. The petition is pending. Lorch v. Consumer Product Safety Commission, No. 76–174 (W.D. Cal.). This is a complaint under section 10 (e) of the CPSA requesting the District Court to compel the Commission to initiate a rulemaking proceeding to ban incandescent Christmas tree lights and require a light-emitting-diode light system. The complaint alleges that the failure of the Commission to initiate the rulemaking proceeding unreasonably exposes Lorch and other consumers to an unreasonable risk of injury associated with incandescent Christmas tree lights. The complaint also claimed that incandescent Christmas tree lights present an unreasonable risk of injury. The case was voluntarily dismissed on May 3, 1977. Marlin Toy Products, Incorporated, Cong. Ref. 2–74 (U.S. Court of Claims). This is a petition for money damages allegedly caused by the Commission's inaccurate description of petitioner's toys in the Commissioner's Banned Product List. The petition was filed on November 2, 1974. After a trial, the Court will forward its findings in liability and damages to Congress. National Society for the Prevention of Blindness, et al v. Consumer Product Safety Commission, No. 76-1495, U.S. Court of Appeals for D.C. Consolidated with Oklahoma Pyrotechnics Association v. Consumer Product Safety Commission and Mikes, Fireworks and Toys, Incorporated v. Consumer Product Safety Commission. The petitions for review were filed challenging the Commission's final order (June 2, 1976) promulgating regulations for firecrackers and other fireworks devices under the Federal Hazardous Substances Act. On June 23, 1977, the Court remanded in part to the Commission finding that the original 2-2 vote was inadequate. The Commission majority affirmed the original decision. On October 5, 1977, the Court denied the petitions and upheld the regulations. Pactra Industries, Incorporated, et al. v. Consumer Product Safety Commission, U.S. App. Nos. 74-2902 and 74-3168 (9th Cir.). This is a petition for review of the vinyl chloride regulations issued by the Commission under the FHSA. These regulations ban self-pressurized products intended or suitable for use in the household that contain vinyl chloride monomer as an ingredient or in the propellant. The petitions challenge denial of hearing on objections under 21 U.S.C. 371(e). On May 2, 1977, the Court set aside the regulations finding that the Commission failed to conduct the required hearing. Pierce and Stevens Chemical Corporation v. Consumer Product Safety Commission, No. 75-410 (W.D.N.Y.) An action was filed on October 2, 1975 by a manufacturer to enjoin the Commission from disclosing under the Freedom of Information Act establishment inspection reports because the reports are allegedly inaccurate and misleading under section 6(b) (1) of the CPSA. The case is pending. Spring Mills, Incorporated v. Consumer Product Safety Commission, No. 77-891 (D.S.C.) and U.S. App. No.'s 77-1969 and 77-1970 (4th Cir.). This is an action to set aside the Commission's interpretation on TRIS treated children's clothing as being arbitrary and capricious and unconstitutional. The District Court issued an injunction on June 23, 1977 and a final judgment on August 16, 1977, enjoining the Commission from enforcing the interpretation as a regulation. The Commission has appealed to the Court of Appeals. The appeal is pending. Stained Glass Association et al. v. Consumer Product Safety Commission, U.S. App. No. 77-1234 (D.C. Cir.). This is a petition for review of the Standard for Architectural Glazing Materials as it applies to stained glass. The petitioner challenged the standard on the grounds that the standard, as applied to stained glass is not supported by substantial evidence. This case was remanded in September, 1977 to the Commission by stipulation of the parties for further proceedings. SUMMARY SIGNIFICANT ENFORCEMENT ACTIONS (Fiscal year 1977 and 1978) INJUNCTIONS The following injunctions have been brought by the Commission to enjoin the continued sales of TRIS-treated articles of children's wearing apparel. The injunctions were brought under the Federal Hazardous Substances Act (FHSA): 1. U.S. v. F.W. Woolworth Co., C.A. 77 Civ. 2437 (S.D. N.Y) Order entered May 17, 1977. 2. U.S. v. Ayr-Way Stores, Inc., C.A. IP 77-336-C (S.D. Ind.). Order entered June 15, 1977. 3. U.S. v. R.H. Macy Co., C.A. 77 Civ. 4124 (S.D. N.Y.). Order entered August 18, 1977. 4. U.S. v. Zayre Corporation, C.A. C-77-2532-S (D. Mass.). Order entered August 22, 1977. 5. U.S. v. Allied Stores Corp., C.A. 77 Civ. 4214 (LWP) (S.D. N.Y.). Order entered August 26, 1977. 6. U.S. v. Lamonts Apparel, Inc., C.A. C-77-624-M (W.D. Wash.). Order entered August 30, 1977. 7. U.S. v. Federated Department Stores, C.A. C-77-497 (S.D. Ohio). Order entered August 31, 1977. 8. U.S. v. E. B. Mott & Co., Inc., C.A. 3-77-1194-F (N.D. Tex.). Complaint for injunction filed September 2, 1977, and pending. 9. U.S. v. Montgomery Ward and Company, Inc., C.A. No. CV 77-3843-RJK (C.D. Cal.). Complaint for injunction filed on October 14, 1977; motion for temporary restraining order denied; pending ruling on motion for preliminary injunction. On April 8, 1977, the Commission issued an interpretive policy statement determining that certain garments treated with TRIS (2,3-dibromopropyl phosphate) constituted "banned hazardous substances" within the meaning of the Federal Hazardous Substances Act. The Commission's action was taken after experts within the Commission staff, as well as at the National Cancer Institute, had determined that TRIS was a carcinogen presenting a human health hazard. Pursuant to that determination, the Commission obtained injunctions against F. W. Woolworth, Co. in the United States District Court in Manhattan on May 17, 1977, and against Ayr-Way Stores, Inc. in Federal Court in Indianapolis on June 15, 1977. Both of these actions enjoined the further sales of TRIStreated items. Following the Commission's action, a fabric manufacturer filed an application for, and obtained, an injunction in the United States District Court for the District of South Carolina to prevent the Commission from taking enforcement action against TRIS-treated garments, on the grounds that the Commission had not complied with certain hearing procedures contained in the FHSA. On August 11, 1977, the United States Court of Appeals for the Fourth Circuit denied a stay of the South Carolina District Court's injunction, as sought by the Commission, but ruled that notwithstanding the injunction, the Commission was free to proceed against any individual seller of TRIS-treated articles by seeking the imposition of an injunction under 15 U.S.C. 1267. Beginning on August 12, 1977, the Commission conducted a nationwide survey of retail establishments selling children's sleepwear. As a result of that survey, the Commission confirmed that retailers had not removed all TRIS-treated items from being offered for sale to consumers. On August 19, 1977, the Commission obtained a temporary restraining order against R. H. Macy & Co., Inc. in Federal Court in New York City. The order requires the chain of Macy's Department Stores to cease all known selling and offering for sale of children's wearing apparel and related articles and products containing or treated with TRIS. On August 22, 1977, the Commission filed suit against Zayre Corporation and its top managing officials in the United States District Court in Boston, Massachusetts. The corporation and its corporate officials entered into a stipulation and order which was entered by the Court to temporarily enjoin any further sales of TRIS-treated items. On August 26, 1977, the Commission obtained a temporary restraining order against Allied Stores Corporation, a holding company which trades under many names, including the Jordan Marsh chain of department stores. |