Texas Association of Manufacturers v. United States Consumer Product Safety Commission, No. 17-60836 (5th Cir. 2021)Annotate this Case
Petitioners sought review of the Commission's final rule prohibiting the manufacture and sale of any children's toy or child care article that contains concentrations of more than 0.1 percent of any one of five phthalates.
The Fifth Circuit held that EMCC has standing to bring its challenge to the Final Rule and the court has jurisdiction to review the Final Rule. The court also held that the Commission procedurally erred by not providing an adequate opportunity to comment on the rule and by failing to consider the costs of a portion of the rule. Having reviewed the record and the Final Rule, the court can discern the Commission's path for each of the six decisions at issue and held that its explanations are not "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Because there is a serious possibility that CSPC will be able to remedy its failures, the court concluded that remand, rather than vacatur, was appropriate in this case.