UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`GREENEVILLE DIVISION
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`2:19-CV-00175-DCLC
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`CHARLES BRUCE, individually;
`MELISSA BRUCE, individually; MELISSA
`BRUCE, a/n/f of Autumn Bruce; and
`CHARLES BRUCE, a/n/f of Autumn Bruce;
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`JET.COM, INC.,
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`Plaintiffs,
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`vs.
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`Defendant
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`MEMORANDUM OPINION AND ORDER
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`Defendant Jet.com, Inc. (“Defendant”) has filed a Partial Motion to Dismiss [Doc. 19],
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`seeking to dismiss Plaintiffs’ federal Consumer Product Safety Act (“CPSA”) claim. Defendant
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`has also filed a corresponding Memorandum in Support [Doc. 15]. Plaintiffs Charles Bruce and
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`Melissa Bruce (“Plaintiffs”), acting individually and in their capacities as next friends of their
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`daughter, Autumn Bruce (“Autumn”), have responded in opposition [Doc. 29]. Defendant has
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`replied [Doc. 30]. This matter is now ripe for resolution. For the reasons stated below,
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`Defendant’s Motion [Doc. 19] is GRANTED.1
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`1 Plaintiffs filed a Motion for Leave to File Amended Complaint [Doc. 33] on August 13, 2020,
`which remains pending. Plaintiffs seek leave to amend their Complaint [Doc. 1] to add Walmart
`as a defendant and to add language to their claims under the Tennessee Consumer Protection Act
`[Doc. 33, pg. 3]. Because Plaintiffs’ Proposed Amended Complaint [Doc. 33-1] would not change
`the Court’s analysis of their CPSA claim, the Court will proceed with ruling on Defendant’s
`Motion to Dismiss [Doc. 19]. If Plaintiffs are granted leave to amend their Complaint, the Court
`will dismiss Plaintiffs’ CPSA claim from the Amended Complaint based on this Order.
`1
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`I.
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`BACKGROUND
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`This action arises out of an incident involving a hoverboard (also known as a “self-
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`balancing scooter”) supplied by Defendant, which Autumn won through a giveaway as part of an
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`anti-smoking campaign at her middle school [Doc. 1, ¶¶ 9-12]. After Autumn charged the
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`hoverboard and turned it on one day, the hoverboard “started sparking and smoking, causing severe
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`fire and smoke damage to Autumn’s bedroom, and the rest of the home” [Id. at ¶ 17]. Plaintiffs
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`and Autumn evacuated the home, called 911, and the Sullivan County Volunteer Fire Department
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`arrived and extinguished the fire [Id. at ¶ 18]. Plaintiffs contend that “the home was uninhabitable
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`due to fire and smoke damage, and [they were] required to live in a hotel while the fire was
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`investigated and the home was repaired” [Id. at ¶ 20]. Plaintiffs further contend an investigation
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`revealed the hoverboard caused the fire [Id. at ¶ 21].
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`Plaintiffs assert causes of action under products liability, negligence, intentional and/or
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`negligent misrepresentation, the Tennessee Consumer Protection Act, breach of implied warranty,
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`and the Consumer Product Safety Act [see Doc. 1]. Plaintiffs base their CPSA claim on
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`Defendant’s alleged violation of certain voluntary safety standards for hoverboards [Id. at
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`¶¶ 68-70]. Defendant moves to dismiss Plaintiffs’ CPSA claim for failure to state a claim upon
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`which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that a
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`violation of voluntary standards does not give rise to a private right of action under the CPSA
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`[Doc. 19].
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`II.
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`STANDARD OF REVIEW
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`A complaint must contain a “short plain statement of the claim showing that the pleader is
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`entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal pursuant to Federal Rule of Civil Procedure
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`12(b)(6) eliminates a pleading or portion thereof that fails to state a claim upon which relief can
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`be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) requires the Court
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`to construe the allegations in the complaint in the light most favorable to the plaintiff and accept
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`all the complaint’s factual allegations as true. Meador v. Cabinet for Human Res., 902 F.2d 474,
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`475 (6th Cir. 1990). The Court may not grant a motion to dismiss based upon a disbelief of a
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`complaint’s factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The
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`Court must liberally construe the complaint in favor of the party opposing the motion. Miller v.
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`Currie, 50 F.3d 373, 377 (6th Cir. 1995).
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`However, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise a
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`right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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`(2007), and to “state a claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v.
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`Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has facial plausibility when the plaintiff pleads
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`factual content that allows the court to draw the reasonable inference that the defendant is liable
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`for the misconduct alleged.” Ashcroft, 556 U.S. at 678. Moreover, the Court need not “accept as
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`true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting
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`Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft, 556 U.S. at 678.
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`III. ANALYSIS
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`The CPSA provides a private right of action for “[a]ny person who shall sustain injury by
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`reason of any knowing (including willful) violation of a consumer product safety rule, or any other
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`rule or order issued by the [Consumer Product Safety Commission (“CPSC”)].” 15 U.S.C.
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`§ 2072(a). If a complaint does not identify such a rule or order, it fails to establish a private right
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`of action. See, e.g., Scott v. Sona U.S.A., No. 1:08-CV-00625, 2011 WL 249452, at *1 (S.D. Ohio
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`Jan. 25, 2011) (“[T]he CPSA does not create a private cause of action for the violation of any
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`regulation, but rather, it more narrowly creates a cause of action when a party violates a consumer
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`product safety rule, or rule or order, of the [CPSC] promulgated under the CPSA.”). The CPSA
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`defines “consumer product safety rule” as “a consumer products safety standard described in
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`[§ 2056(a)], or a rule under this chapter declaring a consumer product a banned hazardous
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`product.” 15 U.S.C. § 2052(6). Section 2056(a) in turn provides that the CPSC may promulgate
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`consumer product safety standards in accordance with § 2058. Id. § 2056(a).
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`Section 2058(a) states that the CPSC may commence a proceeding for the development of
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`a consumer product safety rule by publishing in the Federal Register an “advance notice of
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`proposed rulemaking,” which must satisfy six listed requirements. Id. § 2058(a). The first of these
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`requirements says the notice must identify the product and the nature of the risk of injury associated
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`with it. Id. § 2058(a)(1). The notice must also invite people to submit to the CPSC “an existing
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`standard or a portion of a standard as a proposed consumer product safety standard.” Id.
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`§ 2058(a)(5). Similarly, the notice must invite people to submit to the CPSC “a statement of
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`intention to modify or develop a voluntary consumer product safety standard to address the risk of
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`injury identified in [subsection (a)(1)] together with a description of a plan to modify or develop
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`the standard.” Id. § 2058(a)(5).
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`Section 2058(b) specifically deals with voluntary standards and provides that if a person
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`submits a standard to the CPSC under subsection (a)(5), the CPSC may publish that standard as a
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`proposed consumer product safety rule if it determines that the standard “would eliminate or
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`adequately reduce the risk of injury identified in a notice under subsection (a)(1)” if promulgated.
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`Id. § 2058(b)(1). Section 2058(b) further provides that if the CPSC determines that compliance
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`with a voluntary standard submitted under subsection (a)(6) “is likely to result in the elimination
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`or adequate reduction of the risk of injury identified in the notice” and that “it is likely that there
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`will be substantial compliance with such standard,” then the CPSC
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`shall terminate any proceeding to promulgate a consumer product safety rule
`respecting such risk of injury and shall publish in the Federal Register a notice
`which includes the determination of the Commission and which notifies the public
`that the Commission will rely on the voluntary standard to eliminate or reduce the
`risk of injury, except that the Commission shall terminate any such proceeding and
`rely on a voluntary standard only if such voluntary standard is in existence.2
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`Id. § 2058(b)(2). The statute further states that before the CPSC may rely upon a voluntary
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`standard, it “shall afford interested persons (including manufacturers, consumers, and consumer
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`organizations) a reasonable opportunity to submit written comments regarding such standard.” Id.
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`§ 2058(b)(2). The CPSA does not define “other rule or order” as used in § 2072(a).
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`In their Complaint, Plaintiffs contend they have a private right of action under the CPSA
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`for Defendant’s alleged violation of certain voluntary safety standards for hoverboards [Doc. 1,
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`¶¶ 68-70]. Defendant argues these voluntary standards do not classify as a promulgated rule or
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`order and therefore do not give rise to a private right of action under § 2072 [Doc. 15, pg. 2]. In
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`response, Plaintiffs point to a letter the CPSC issued on February 18, 2016 [Doc. 29-1]3 to
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`manufacturers, importers, and retailers of self-balancing scooters “to urge [them] to make certain
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`that self-balancing scooters that [they] import, manufacture, distribute, or sell in the United States
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`comply with currently applicable voluntary safety standards, including all referenced standards
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`and requirements contained in UL 2272 – Outline of Investigation for Electrical Systems for Self-
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`balancing Scooters” [Doc. 29, pg. 2; see Doc. 29-1, pg. 1]. The letter further cautioned that
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`“[s]elf-balancing scooters that do not meet these voluntary safety standards pose an unreasonable
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`risk of fire to consumers” [Doc. 29-1, pg. 1]. The letter advised that the CPSC considers self-
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`2 “For purposes of this section, a voluntary standard shall be considered to be in existence when it
`is finally approved by the organization or other person which developed such standard, irrespective
`of the effective date of the standard.” Id. § 2058(b)(2).
`3 This letter was superseded by a subsequent CPSC letter [Doc. 29-2]. However, that letter was
`issued on February 22, 2018, after the incident in question [see id.].
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`balancing scooters that do not meet the applicable voluntary safety standards to be defective and
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`stated that “they may present a substantial product hazard under Section 15(a) of the CPSA, 15
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`U.S.C. § 2064(a) or could be determined to be an imminent hazard under Section 12 of the CPSA,
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`15 U.S.C. § 2061” [Id.]. The letter warned that such products may be detained or seized if
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`encountered at import or recalled if encountered domestically [Id.]. Finally, the letter stated the
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`CPSC staff would be following up to ensure firms were meeting their obligations [Id. at pg. 2].
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`In support of their argument that Defendant’s alleged violation of the voluntary standards
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`referenced in the CPSC letter gives rise to a private right of action under § 2072(a), Plaintiffs cite
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`§ 2056(b), which states:
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`(1) The Commission shall rely upon voluntary consumer product safety
`standards rather than promulgate a consumer product safety standard
`prescribing requirements described in subsection (a) whenever compliance
`with such voluntary standards would eliminate or adequately reduce the risk
`of injury addressed and it is likely that there will be substantial compliance
`with such voluntary standards.
`(2) The Commission shall devise procedures to monitor compliance with any
`voluntary standards—
`(A) upon which the Commission has relied under paragraph (1);
`(B) which were developed with the participation of the Commission; or
`(C) whose development the Commission has monitored.
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`[Doc. 1, ¶¶ 69-70 (citing 15 U.S.C. § 2056(b))]. Plaintiffs’ Complaint further contends these
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`voluntary standards “were enforced by the CPSC through recall and seizure at import, actions
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`which make clear that enforcement of the standard is ‘voluntary’ only to the extent that the CPSC
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`was required to issue voluntary standards under the CPSA language and 15 U.S.C. § 2056(b)” [Id.
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`at ¶ 70]. Plaintiffs have filed three articles discussing the seizure of hoverboards to demonstrate
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`that the CPSC’s letter “was not an empty threat” [Doc. 29, pg. 3; see Docs. 29-3, 29-4, 29-5].
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`Plaintiffs also filed “additional correspondence” between the CSPC and Underwriter Laboratories,
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`Inc. (“UL”), the entity that wrote the voluntary standards referenced in the CPSC letter (UL 2272),
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`discussing CPSC staff’s support of UL 2272 and the proposed effective date [Doc. 29-6]. Plaintiffs
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`contend that the CPSC letter [Doc. 29-1], when read together with these other documents, “makes
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`evident the existence of an acceptable standard being developed by UL in conjunction with the
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`CPSC and presumably any manufacturers, distributors, and retailers in communication with UL”
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`[Doc. 29, pg. 2].
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`Plaintiffs rely on a case out of the Southern District of Illinois for the proposition that
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`voluntary standards can enjoy the force of law in certain circumstances [Id. (citing Alsup v. 3-Day
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`Blinds, Inc., 435 F. Supp. 2d 838, 858 (S.D. Ill. 2006))]. At issue in Alsup was whether, for
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`purposes of removal from state to federal court, the defendant had stated a colorable federal
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`defense based on alleged preemption of the plaintiff’s state-law product liability claims by the
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`CPSA. Alsup, 435 F. Supp. 2d at 852. The Court found the CPSC had promulgated no regulations
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`or safety standards with respect to the product at issue that could give rise to preemption. Id. at
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`852. The Court went on to state that although relevant voluntary safety standards existed,
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`“typically voluntary safety standards do not enjoy the force of law.” Id. at 853 (S.D. Ill. 2006)
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`(citing Pfeiffer v. Eagle Mfg. Co., 771 F. Supp. 1133, 1136 (D. Kan. 1991)). The Court noted:
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`One court has suggested that voluntary safety standards might enjoy the force of
`law if, after public notice, the CPSC made written findings that compliance with
`such voluntary standards would eliminate or adequately reduce the risk of injury
`addressed and it is likely that there will be substantial compliance with such
`voluntary standards.
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`Id. (citing Nat’l Kerosene Heater Ass’n, Inc. v. Com. of Mass., 653 F. Supp. 1079, 1086 (D. Mass.
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`1986)). National Kerosene Heater also dealt with whether a voluntary standard could serve as the
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`basis for preemption of state product liability law by the CPSA. Nat’l Kerosene Heater, 653 F.
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`Supp. at 1084. Both courts held that the respective voluntary standards could not serve as a basis
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`for federal preemption. Alsup, 435 F. Supp. 2d at 853 (“[The voluntary standards] are minimum
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`safety standards . . . and therefore cannot support a claim of federal preemption of state law.”);
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`Nat’l Kerosene Heater, 653 F. Supp. at 1087 (“The procedure for formal reliance on a voluntary
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`standard provided by § 2058(b)(2) would be rendered meaningless if a voluntary standard
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`informally found to be entitled to deference under § 2056(b) were deemed a consumer product
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`safety standard within § 2075(a).”).
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`Plaintiffs contend UL 2272 satisfies the requirements laid out in National Kerosene Heater
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`because “[t]he CPSC stated that the UL 2272 standard would adequately address the fire issues
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`raised by other non-compliant products, and it is evident by its method of enforcement that it
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`considered the ‘voluntary standard’ to be sufficient means to ensure compliance with the standard”
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`[Doc. 29, pg. 3; see Nat’l Kerosene Heater, 653 F. Supp. at 1086.]. Alternatively, Plaintiffs
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`contend UL 2272 was not actually voluntary, because the CPSC referred to the standards as
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`“obligations,” stated noncompliant products could be seized at import or recalled domestically,
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`and obligated report of noncompliant products [Doc. 29, pg. 3-4]. Plaintiffs contend the CPSC’s
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`letter itself thus classifies as “any other rule or order issued by the Commission” under § 2072(a)
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`[Id. at pg. 4].
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`In reply, Defendant argues UL 2272 was not “issued by the Commission” as required by
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`§ 2072(a) for a private cause of action [Doc. 30, pg. 2]. Defendant further argues National
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`Kerosene Heater is inapplicable to this case because the issue was whether a voluntary standard
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`can preempt state law, not whether the violation of voluntary standard can give rise to a private
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`right of action [Id.]. Further, Defendant asserts that even if National Kerosene Heater was on-
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`point, Plaintiffs have not alleged facts to establish that UL 2272 meets the requirements outlined
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`in that case [Id. at pg. 3]. Defendant explains that no facts in the Complaint suggest the CPSC has
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`made public findings that UL 2272 meets the requirements of § 2056(b) pursuant to § 2058(b)(2)
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`[Id.; see Nat’l Kerosene Heater, 653 F. Supp. at 1088]. Finally, Defendant argues the seizure of
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`counterfeit hoverboards at the border is irrelevant, and Plaintiffs’ assertion that the standards set
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`out in UL 2272 are not actually voluntary contradicts the plain language of the letter [Doc. 30,
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`pg. 3-4]. Defendant explains that § 2058(b) outlines the procedure the CPSC must follow to
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`promulgate a rule based on, or formally rely on, a voluntary standard, and Plaintiffs have not
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`alleged this procedure was followed or offered any authority to support their position [Id. at pg. 4].
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`The CPSA expressly limits a private right of action to violations of a consumer product
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`safety rule or other rule or order issued by the CPSC. 15 U.S.C. § 2072(a). The CPSC did not
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`issue UL 2272; rather, Underwriter Laboratories—a private safety organization—established these
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`voluntary standards. The only thing the CPSC “issued” here was a letter urging manufacturers,
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`importers, and retailers of self-balancing scooters to comply with the voluntary standards [see
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`Doc. 29-1]. While Plaintiffs contend the letter signaled the CPSC’s reliance on UL 2272 pursuant
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`to § 2056(b), the CPSA’s definition of “consumer product safety rule” only references § 2056(a),
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`not § 2056(b). See 15 U.S.C. § 2052(6). Plaintiffs urge the Court to recognize that voluntary
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`standards may sometimes enjoy the force of law; however, Plaintiffs merely cite two cases that
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`mention this possibility in dicta. Even if the Court were to accept this argument, Plaintiffs fail to
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`establish that the requirements suggested by these cases—public notice followed by specific
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`written findings—have been met. Plaintiffs’ alternative theory that the CPSC’s letters themselves
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`established that these voluntary standards were actually mandatory rules is a stretch, and Plaintiffs
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`have offered no authority that would allow the Court to make such a finding.
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`Neither the voluntary standards at issue nor the CPSC’s letter classify as “a consumer
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`product safety rule, or other rule or order issued by the Commission.” See id. § 2072(a). To hold
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`otherwise would circumvent the plain meaning of the statute and the CPSA’s own definitions.
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`Therefore, the Court finds Plaintiffs’ Complaint does not contain allegations sufficient to establish
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`a private right of action under the CPSA, and that claim must be dismissed pursuant to Federal
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`Rule of Civil Procedure 12(b)(6).
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`IV. CONCLUSION
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`For the reasons stated herein, Defendant’s Motion [Doc. 19] is GRANTED. Plaintiffs’
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`federal Consumer Product Safety Act claim is DISMISSED WITH PREJUDICE. All other
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`causes of action remain.
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`SO ORDERED:
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`s/ Clifton L. Corker
`United States District Judge
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