An Oklahoma-based family-owned pillow-making business is suing the U.S. Consumer Product Safety Commission (CPSC) after it tried to shut down the company when two infants died after parents ignored explicit product safety warnings.
The lawsuit claims regulatory overreach and seeks to curb the powers of the CPSC, an administrative agency.
Jamie Leach and her husband, Clyde, founded Leachco in 1988 after their then-7-month-old child almost fell out of a highchair in a restaurant. Jamie repurposed her purse strap and safely secured the baby to the chair. Over the following days, Jamie, trained as a registered nurse, experienced a burst of creativity and made a safety wrap out of dental floss, tape, and a kitchen hand towel.
This so-called Wiggle Wrap became an instant hit with other parents and sparked the idea for a company focused on child care products, according to Pacific Legal Foundation (PLF), a Sacramento, California-based national public interest law firm that’s representing the business in the lawsuit.
Today, Ada, Oklahoma-based Leachco offers a wide variety of products—all of which are designed by Jamie and a staff of about 40 employees, including the couple’s three grown-up children. Jamie expanded the company from her homemade invention to dozens of successful products, including the “Podster” infant lounger. The company boasts that the Podster provides parents and caregivers a safe, supervised place for infants and reports that it has sold 180,000 units of the product since it hit the market in 2009.
Each Podster comes with explicit instructions and warnings that it’s to be used only with awake and supervised infants. Despite those cautions, two infants have died over the 13 years that the Podster has been available.
In one case, a day care center left a baby alone in a crib with a Podster for more than 90 minutes, even though the company advises against such a practice, which is also contrary to state regulations and the facility’s own rules. The day care facility’s license was taken away, and it was shut down.
In the other case, a 3-week-old was placed in the Podster and then put on an adult bed, between its adult parents, along with bedding and pillows, for co-sleeping—contrary to Leachco’s express warnings and instructions.
But the CPSC is arguing that Leachco is at fault in both cases. The agency claims the Podster is defective because it’s “reasonably foreseeable” that parents and caregivers will ignore express warnings and fail to use common sense.
According to Oliver J. Dunford, senior attorney for PLF, while the CPSC admitted that the product came with the proper warnings, it found that “it is reasonably foreseeable that people will ignore the warnings and misuse the product.” That absurd standard would allow any product to be unfairly blacklisted by the commission, and if the CPSC’s logic were applied broadly, it could eliminate virtually every product from the market, he said.
The CPSC is in the middle of the discovery process in an administrative proceeding and hasn’t turned over all of the tests and evaluations that it conducted, “so we don’t know exactly what they found yet.”
The lawsuit seeks to halt the commission’s internal administrative proceeding or at least delay it until the Supreme Court rules in two cases dealing with related issues.
The CPSC is “unconstitutionally structured” because it isn’t politically accountable, Dunford told The Epoch Times in an interview. The commissioners, unlike principal officers in the government, such as Cabinet secretaries, can’t be removed by the president except for cause, and this allows them to make objectionable decisions without political accountability, he said.
The Constitution requires that the president be able to fire CPSC members at will, he said. Over the past 100 years, the courts have been “so deferential to administrative agencies, that some of these first principles of the Constitution have been undermined.”
Jamie Leach said she’s perplexed by the commission’s behavior.
“We started Leachco in 1988 with one product and since that time, we’ve been developing products for parents and children ... and we have complied with all of the guidelines and product requirements. And we feel like our products are safe and useful, and we’re not sure why we’re being singled out,” she told The Epoch Times in a separate interview.
“We have developed additional products, and over the last 34 years, we’ve come up with scores of products to serve parents and their families, children, and infants, and we’ve had a really safe record and had what I consider really wonderful brand recognition and reputation” until the CPSC began acting against the company, she said.
The Epoch Times reached out to the commission for comment but didn’t receive a reply as of press time.
