Drop-side crib ban: a regulatory taking?

by Walter Olson on June 3, 2010

Reader Chaim Gordon, a Georgetown 2L and former clerk with the Institute for Justice, cc’d us on an excerpted email to call our attention to

… a potential rule by the Consumer Product Safety Commission (CPSC) or legislation by congress (S. 3400, H.R. 5386), see, e.g. (PDF), banning “the sale, manufacture, distribution, and use in public facilities of drop-side cribs.” As a parent, I feel violated (not really, because I own two such cribs already), and as a multiple-drop-side-crib-owner, I feel robbed.

I have been following this story for over a year now, and it seems to me that this rule/legislation is likely to implemented (I think that a rule is more likely than a bill). Originally, I thought that this ban was an effort by the crib manufacturers to reduce potential liability without losing market share by way of voluntary action. I now think that something more sinister is at work here. I now think that the manufacturers want to increase demand for their product by taking a large portion of the used-crib market/family-gift competition out of the picture. (Drop-side cribs used to comprise around 50% of the new crib market, and now, because of CPSC warnings and voluntary measures, that percentage has dropped to around 20%.) This of course comes at the expense of the innocent parents who may have been counting on selling their used cribs or giving their used cribs to family members (and at the expense of parents who will have to pay more for a used/new crib). Personally, I have never heard of a regulation that limited the rights of consumers to resell (or give away) their legitimately purchased, but now considered deficient, product (consider used cars without airbags).

There may be several ways to attack such a rule/law. If this ban comes in the form of a rule, an APA challenge may be possible, and it should have a good chance because the standards for making a rule are quite tough. See 15 U.S.C. 2057. It may even be possible to bring a rational basis challenge (if it becomes a law) if it can be shown that drop-side cribs save more lives in the aggregate (by helping infants/parents sleep better and keeping infants out of parents’ beds). This would, naturally, be almost impossible to prove.

…. [However,] a collateral attack under the Takings Clause [would be more interesting]. That is, under Penn Central, when government regulation deprives an owner of almost the entire value of his/her property and the owner has reasonable investment backed expectation from such property, then a taking has occurred. Here, parents buy cribs, which regularly cost up to $1000, and expect to use it for a few years and to then pass it on to family or to sell it on websites such as eBay or Craigslist to recoup the residual value in their cribs. (Full-size cribs are very sturdy and can last for many, many years.) This rule/legislation would deprive innocent crib owners (who cannot be expected to foresee such unprecedented, sweeping regulation) of their valuable property interest in the cribs without just compensation.

Such a collateral attack could cost the government hundreds of millions of dollars, and would force the government to repeal the rule/legislation. I do not know if a class action could be brought, but obviously that would allow a lawsuit to be brought for the millions of drop-side crib owners who no longer use their cribs. (Assuming $100 per used crib and 10 million used drop-side cribs, we are talking $1 billion.)

. . . I have posted several news items with the latest developments on Facebook.

My recollection of CPSIA is that it bans some forms of gratis donation of existing products, and I feel reasonably certain that the federal government has in the past announced other bans on the giveaway of household objects. But I’m not aware of any takings challenges to such laws. Readers may have more informed thoughts.

{ 4 comments }

1 Doug 06.03.10 at 12:01 pm

Most of the drop down cribs my wife and I ever owned costs around $100 of so. Still, this is a terrible reg. All, I believe, because 32 children died in such cribs. Let’s just ignore the millions of hours infants have spent in these cribs without any injury or harm. The nannies know best.

2 Retailer359 06.03.10 at 3:01 pm

Being directly involved in this industry (as a retailer), I feel I can say with a high degree of certainty that the impetus for removing drop-side cribs from the market originates from consumer organizations and fear-based campaigns. The response by manufacturers, who saw this coming, was to stop making drop-side cribs so they (we) wouldn’t be stuck with unsellable inventory. While manufacturers will benefit from the liability insurance reduction and forseeable misuse lawsuits, I doubt any of them appreciate being told their products aren’t safe (not to mention the pressure that has already started to recall every drop-side crib in existence).

Woe to those of short stature and chronic back pain, the rallying cry of “For the children” supercedes rational decision-making. It would be nice to see the bans challenged, but anyone doing so can expect to face the typical “why do you want to kill our kids” argument (which, incidentally, is the reason I’m posting pseudonymously).

3 David Schwartz 06.05.10 at 7:39 am

The odds of a child dying from one of the recalled cribs are approximately equal to the odds of that child dying in a plane crash during that same time. If you sleep in one of the recalled cribs, you are 30 times more likely to die in an automobile accident than in the crib. You are 10 times more likely to be murdered.

This assumes the average child spends two years in a crib. It includes only the risk of death from other causes during those two years, not lifetime risks. It assumes each recalled crib was used by exactly one child prior to be recalled. It also assumes that children have approximately the same risk of death from these causes as adults do. So the order of magnitude should be right, but it’s not intended to be precise.

4 William Nuesslein 06.05.10 at 11:10 am

Unfortunately, Mr. Schwartz’s clear and correct analysis will not survive “What if it was your child?”.

“In 1789, 40 percent of all deaths were among children under age five. Infants frequently succumbed to dysentery, diarrhea, and cholera.” People who fear drop-side cribs are really stupid!

Comments on this entry are closed.