Congress Pulls the Toy Gun Trigger: CPSC Takes Over Enforcement Authority for Imitation-Firearms Law

With the U.S. Consumer Product Safety Commission’s (CPSC’s) myriad recent activities — from large civil penalties, to highly anticipated rulemakings, to the perpetual battle over the information-disclosure provisions of Section 6(b) of the Consumer Product Safety Act — it would have been easy to miss the transfer of enforcement authority for toy, look-alike, or imitation firearms markings from the U.S. Department of Commerce (Commerce) to CPSC. However, CPSC’s recently issued Direct Final Rule (DFR) adopting Commerce’s rule for the marking of toy, look-alike, and imitation firearms is a reminder of a jurisdictional shift that Congress effected last year that may portend a sea change in enforcement activity.

In 1988, a provision tucked into the Federal Energy Management Improvement Act (FEMIA), Pub. L. No. 100-615, § 4, 102 Stat. 3185, 3190 (Nov. 5, 1988) (codified at 15 U.S.C. § 5001), banned the making, selling, shipping, transportation, or receipt of “toy, look-alike, or imitation firearm[s]” unless they bear certain distinctive markings defined by regulation, 15 U.S.C. § 5001(a), with the goal of reducing instances in which a toy gun could be mistaken for a real one. The FEMIA assigned the authority to issue those regulations and enforce the statute to the Department of Commerce, which in turn promulgated rules — currently at 15 C.F.R. Part 272 — that provided more specificity in the required markings and created a process for waivers for imitation weapons used in films, television, and theater. However, enforcement of Commerce’s rules primarily came through seizures at import by U.S. Customs and Border Protection.

Last year, as part of the FEMIA Update, tucked within the CHIPS Act of 2022, Pub. L. No. 117-167, § 10246(e), 136 Stat. 1366, 1492 (Aug. 9, 2022), Congress struck “Secretary of Commerce” and inserted “Consumer Product Safety Commission” in the toy firearms statute. With that simple edit, authority for enforcing the statute transferred from Commerce to CPSC.

On May 11, 2023, CPSC issued a DFR that transfers Commerce’s rules to CPSC’s portion of the Code of Federal Regulations (CFR), creating a new 16 C.F.R. Part 1272. The DFR is open for comment until June 12, and the rules transfer will take effect June 26 unless CPSC receives one or more “significant adverse comments.” If the agency receives a significant adverse comment, the DFR will be withdrawn before it takes effect. However, since the FEMIA update already transferred enforcement responsibility to CPSC, CPSC already has authority to enforce any violations it identifies, and the CFR transfer largely will serve to make it easier for stakeholders to find the new CPSC-enforced rules, since they’ll be housed alongside the rest of the agency’s regulations.

Unlike Commerce, which has wider responsibilities, CPSC’s core mission is to protect consumers against unreasonable risks of injury and death associated with consumer products through mandatory and voluntary standards, enforcement, and education. With the enforcement of toy, look-alike, and imitation firearm markings added to its regulatory portfolio, CPSC may look for opportunities to establish itself as the new agency in charge. In that regard, CPSC regularly conducts enforcement sweeps, in which a particular CPSC-enforced rule — such as limits on lead in toys, child-resistant packaging of certain substances, or the flammability of children’s sleepwear — receives extra attention and compliance resources for a period of time. Accordingly, companies in this space should carefully review their products to make sure they comply with the requirements at the likely forthcoming Part 1272.

Further, while the substance of the regulation is not changing at the moment, one new compliance wrinkle is that manufacturers or importers of imitation firearms that are not children’s products will have to issue General Conformity Certifications (GCCs) based on reasonable testing programs that their products comply with the requirements of Part 1272. Toy guns currently are regulated under CPSC’s mandatory toy standard, which contains the marking requirements set forth in Commerce’s rule at Part 1272. The DFR clarifies that the rule does not impact the requirement for certification of toy gun markings under the toy standard. CPSC frequently samples products at import to look for required certification, and shipments can be delayed if a certificate is missing or incomplete. In addition, even products with no substantive non-compliances can be the subject of a Notice of Violation (NOV) if its certificate is missing or incomplete. To avoid these issues, companies in the imitation-firearms space should ensure that testing and certification are part of their compliance programs.

For questions about this post, CPSC enforcement practices, or other product safety matters, please reach out to the authors or any of their colleagues on Arnold & Porter’s Consumer Product Safety team.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.