when proposing and issuing regulations. For example, the Consumer Product Safety Information Act of 2008 granted CPSC with new regulatory and
enforcement tools to regulate or ban unsafe products.
105 To effectuate the
new law, CPSC implemented regulations concerning product safety and
product bans, which included periods of public comment and hearings regarding the proposed regulations.
106 CPSC’s failure to follow the APA
would invalidate its regulations upon a challenge.
Finally, proper legal channels must be followed when implementing a
product ban. When the New York City Board of Health tried to enact a portion ban for large sodas, as discussed above, the appellate court held that the
Board acted outside its lawfully delegated authority.
107 Pursuant to the
state’s separation of powers doctrine, New York administrative agencies
may only affect policy mandated by statute. The legislature must speak
about a policy before an agency may undertake interstitial rulemaking – only then can the rule survive.
108 Accordingly, product bans may only survive
challenge if they follow these regulatory and procedural pathways.
IV. PRESCRIBING FUTURE IMPLEMENTATION OF PUBLIC HEALTH BANS
As conceived above, public health bans refer to governmental efforts to
prohibit the sale or possession of specific products in an otherwise open
market because of the product’s deleterious health impacts. In contrast,
manufacturers or suppliers may voluntarily remove products from the mar-
ket for many reasons, including poor sales resulting from consumer health
concerns. While the end result of voluntary product removals can be the
same as government-mandated bans, the tenuous nature and unpredictabil-
ity of such removals necessitate more definitive guidance for when and how
government should prohibit products in response to public health concerns.
To this end, the legal anatomy of successful public health product bans is
constituted of a series of core elements. Conversely, the absence of these
core elements may doom attempts to prohibit products for which legal and
other justifications are scant or missing either at the initial stage of proposed bans (e.g., tobacco) or later when existing bans are reconsidered (e.g.,
105. The Act included provisions addressing, among other things, lead, toy safety, durable infant or toddler products, third-party testing and certification, tracking labels, imports,
and all-terrain vehicles. Consumer Product Safety Improvement Act of 2008, 15 U.S. C. A. §§
2051-84 (West, WestlawNext through Pub. L. No. 113-93 (excluding Pub. L. No. 113-79)
approved Apr. 1, 2014).
106. Safety Standard for Magnet Sets, 77 Fed. Reg. 53,781 (Sept. 4, 2012). Individuals
and businesses may also petition the CPSC to regulate or ban certain products. For CPSC’s
list of the petitions online, see
107. N. Y. Statewide Coal. of Hispanic Chambers of Commerce, 970 N. Y.S.2d at 213.
108. Id. at 211-12.