X-Tra Art Linda Weill v. Consumer Product Safety Commission

This appeal arises from a dispute between the Consumer Product Safety Commission (CPSC) and X-TRA ART, a small business founded by an elementary school teacher to manufacture and distribute “Rainbow Foam Paint” to day care centers, preschools, and elementary schools. The product is a mixture of shaving cream and food coloring intended for use as finger paint by children ages 3 and older.

X-TRA ART filed this action in district court claiming that the CPSC had unlawfully declared the paint to be a “banned hazardous substance,” and seeking review of such a determination, as well as injunctive relief, under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 . The district court dismissed the action, ruling that there had been no “final agency action” subject to review under the APA, and that the proper forum for adjudicating whether the product was a banned hazardous substance was the seizure and condemnation proceeding instituted pursuant to 15 U.S.C. § 1265 . That statute authorizes the seizure of a “banned hazardous substance” held for sale. The district court’s decision was in accord with the only circuit decision dealing with similar issues of enforcement under the Consumer…