Regulation of Electrical, Mechanical and Thermal Hazards

The FHSA also empowers the CPSC to prescribe product safety standards for certain selected classes of products. Under Section 2(f)l(D), 15 U.S.C. 1261(f)l(D), the CPSC may issue regulations determining the conditions under which toys or other articles intended for use by children will be deemed hazardous substances because they present an electrical, mechanical, or thermal hazard. The terms mechanical and thermal hazard, in turn, apply to articles whose design or manufacture presents an unreasonable risk of personal injury or illness because of their mechanical or thermal properties. Section 2(s)-(t), 15 U.S.C. 1261(s)-(t). 

The FHSA does not define the term unreasonable risk of injury. Nevertheless, the legislative history of the FHSA emphasizes that a determination of unreasonable risk involves balancing a product s potential harm against the economic burdens and other adverse effects of proposed regulatory requirements  

The leading decision under the FHSA applying this concept of tmreasona-hle risk is Forester v. Consumer Product Safety Commission, 559 F.2d 774 (D.C. Cir. 1977). This case involved the validity of CPSC regulations prescribing design and performance standards for bicycles and determining 

The Commission is, however, permitted by the FHSA to regulate only mechanical hazards that present an unreasonable risk of consumer injury. This means that the Commission must determine (1) that the risk posed by the hazard is an unreasonable one, and (2) that there is a sufficient nexus between the regulation and the hazard it is designed to prevent. The requirement that the risk be unreasonable necessarily involves a balancing test like that familiar in tort law The regulation may issue if the severity of the injury that may result from the product, factored by the likelihood of the injury, offsets the harm the regulation itself imposes upon manufacturers and consumers. [559 F.2d at 789.] 

The court then proceeded to apply this standard to various provisions of the Commission s regulation. As the following excerpts from its analysis indicate, the court explicitly recognized that the level of risk that the Commission is required to demonstrate is directly proportional to the burdens imposed by its standard and, where such burdens will be negligible, a minimal showing of risk will suffice  

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