CPSC Signals New Approach to Criminal Regulatory Enforcement

In response to President Trump’s 2025 Executive Order on “Fighting Overcriminalization in Federal Regulations,” the Consumer Product Safety Commission (CPSC) signaled a shift toward a more intent-focused approach to criminal regulatory enforcement. The Executive Order reflects the Trump administration’s broader effort to limit criminal enforcement of regulatory violations, particularly strict liability offenses, and to ensure agencies focus criminal referrals on conduct involving knowing or intentional noncompliance.

Consistent with that policy direction, CPSC issued a notice that outlines its move away from strict liability as a basis for criminal referrals to the Department of Justice (DOJ) and toward a mens rea focused approach. As a first step, the agency committed to providing a report to the Office of Management and Budget (OMB) identifying all criminal regulatory offenses enforceable by either CPSC or DOJ, along with the applicable mens rea standards and range of potential criminal penalties for each offense.

Under the prior framework, CPSC’s criminal referral process did not expressly require staff to evaluate whether a company acted knowingly or intentionally before referring a matter to DOJ for potential prosecution. Because several statutes enforced by CPSC authorize criminal liability without requiring proof of intent, companies could face criminal referral exposure based on the existence of a regulatory violation even where there was no evidence the company knew its conduct was unlawful or where the company had undertaken compliance efforts.

CPSC stressed that its regulations do not themselves create criminal liability. Instead, criminal penalties stem from underlying statutes enforced by CPSC. The agency is identifying provisions across the Code of Federal Regulations that authorize criminal penalties, including statutes imposing strict liability.

Moving forward under these new enforcement guidelines, CPSC staff are expected to consider a range of discretionary factors before referring any matter to DOJ for potential criminal enforcement, including:

• The harm or risk of harm, pecuniary or otherwise, caused by the alleged offense;
• Whether the statutory offense is a strict liability offense with no mens rea requirement;
• The potential gain to the putative defendant that could result from the offense; and
• Whether the putative defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue.

CPSC staff must also consider evidence, if any is available, of a party’s awareness of the unlawfulness of its conduct, as well as knowledge or lack thereof of the regulation at issue. This consideration may prove especially significant for highly regulated companies within CPSC’s jurisdiction. The agency’s emphasis on specialized knowledge and industry sophistication signals that companies in highly regulated sectors should expect their own expertise to be used against them in any enforcement analysis. Companies with mature compliance infrastructures, internal regulatory expertise, or extensive experience navigating CPSC requirements may face greater scrutiny regarding what they knew or should have known about potential violations.

Although the guidance suggests a more restrained approach to criminal referrals for technical or unintentional violations, companies should not view it as a relaxation of CPSC oversight. Rather, businesses should focus on ensuring robust processes for identifying product safety risks, responding appropriately to regulatory obligations, documenting good-faith compliance efforts, and promoting a culture of compliance. Businesses should also keep in mind that DOJ retains independent authority to initiate investigations into potential criminal violations of consumer product safety laws, including alleged failures to comply with the reporting requirements of the Consumer Product Safety Act, even absent a referral from CPSC. As CPSC and DOJ’s enforcement approaches evolve, our team is available to help companies assess risk, respond to investigations, navigate recalls and reporting obligations, and create or enhance product safety compliance programs.