Request By:
Hon. Robert W. Riley
General Counsel
Department for Human Resources
Commonwealth of Kentucky
East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Rodney V. Tapp, Assistant Attorney General
In your recent letter to the Attorney General, you have requested our opinion as to the authority of the Department for Human Resources, Division for Consumer Health Protection Services, to promulgate regulations or rules concerning the safety of certain consumer products. On June 16, 1975, the Governor of Kentucky executed Executive Order 75-551 creating the Division for Consumer Health Protection Services (hereinafter Consumer Health Division) within the Bureau for Health Services of the Department for Human Resources.
The aforesaid Order delineated the responsibilities of the Consumer Health Division as follows:
The prevention of the manufacture, distribution, and sale of adulterated, mishandled, or falsely advertised foods and cosmetics; the minimization of radiation exposure to the population; the reduction of the risk of personal injury from unsafe consumer products and chemicals; the prevention of the transmission of disease and the existence of unsanitary conditions in public facilities and the individual's personal environment, and other such responsibilities which may be assigned by the Secretary of the Department for Human Resources from time to time.
In due course, the General Assembly, in House Bill 499, 1976 Ky. Acts, Ch. 299, Sections 88 (6), 89, 90, page 630 confirmed the creation of the Consumer Health Division and provided that it shall have the duties and responsibilities as set forth in the above-mentioned Executive Order.
KRS 12.040 provides in pertinent part:
(1) The heads of departments shall have direction and control of their respective departments, and through their departments shall exercise the powers and perform the duties vested in the departments under their direction and control.
KRS 12.080 provides in apposite part:
The head of each department may likewise prescribe rules as he deems expedient for the proper conduct of the work of the department and for making effective the provisions of law and not inconsistent therewith or with the general rules prescribed by the governor.
KRS 13.082 provides as follows:
(1) The power vested in every administrative body to adopt regulations shall be uniform and shall be confined to the direct implementation of the functions and duties assigned to an administrative body by the general assembly, or by executive order.
The duty of the Secretary for Human Resources to formulate rules and regulations was established in KRS 194.050 as follows:
(1) The secretary shall formulate, promote, establish and execute policies, plans, and programs and shall adopt, administer, and enforce throughout the state of Kentucky all applicable state laws and all rules and regulations necessary in accordance with applicable state laws to protect, develop and maintain the health, welfare, personal dignity, integrity and sufficiency of the individual citizens of the Commonwealth and necessary to operate the programs and fulfill the responsibilities vested in the department for human resources. The secretary shall adopt, administer and enforce such rules and regulations as are necessary to implement programs mandated by federal law, or to qualify for the receipt of federal funds and as are necessary to cooperate with other state and federal agencies for the proper administration of the department and its programs. (Emphasis added).
Pursuant to the last quoted provision, the Secretary for Human Resources is duty bound to adopt all rules and regulations necessary to the fulfilment of the responsibilities vested in the Department for Human Resources. Clearly, it is the responsibility of the Secretary to promulgate regulations to fulfill the mandate of the General Assembly to reduce the risk of personal injury from unsafe consumer products and chemicals.
The language of the aforementioned statutes is in conformity with the requirements of the case law. The highest Court of this Commonwealth has on many occasions dealt with questions surrounding the authority of a public administrative body "to make or adopt rules and regulations designed to carry out the duties imposed on it and to effectuate the purpose of the enactment under which it operates or which it is administering. . . ." Alcholic Beverage Control Board v. Hunter, Ky., 331 S.W.2d 280, 283 (1960); See, also, Lovern v. Brown, Ky., 390 S.W.2d 448, 449 (1965); Portwood v. Falls City Brewing Company, Ky., 318 S.W.2d 535, 537 (1958).
More fundamentally, your question deals, also, with the authority of the Consumer Health Division to promulgate various trypes of regulations dealing with the safety of a small class of consumer products. First, it is observed that the regulation of consumer products is the regulation of commerce either intrastate or interstate. Since it is the United States Congress that has primary regulatory authority over interstate commerce, a brief look at federal legislation in the area of consumer product safety is in order. The Consumer Product Safety Act [15 U.S.C. §§ 2051, et seq. (1974)] allows the Consumer Product Safety Commission to regulate certain consumer products. Section 26 of the Act, [15 U.S.C. § 2075 (1974)], delineates the role of the state in the regulation of consumer products as follows:
(a) Whenever a consumer product safety standard under this chapter is in effect and applies to risk of injury associated with a consumer product, no state or political subdivision of a state shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the Federal standard.
Clearly, the Secretary for Human Resources may not formulate regulations which would impose lesser standards than applicable federal consumer product standards. In addition, any regulation of consumer products and chemicals may not impermissibly burden interstate commerce. It appears as if Congress does not wish state efforts to conflict with federal efforts; however, there appears to be no intent to in any way impair the implementation of strong state programs for consumer product safety.
Neither federal law nor state law would prevent a state from exercising its police power to the fullest extent consistent with present notions of substantive and procedural due process in the area of consumer product safety and consistent with applicable federal requirements. Presently, the Secretary for Human Resources is under the direction of the General Assembly "to reduce the risk of personal injury from unsafe consumer products and chemical. " The Department now wishes to promulgate standards of safety for some consumer products (furniture, toys, flammable fabrics, etc.) and to prepare regulations which would permit enforcement of product standards. Although the responsibility of the Secretary for Human Resources and his Division for Consumer Health Protection Services is clear, under the law, there is an absence of guidelines for the implementation of the delegated responsibilities. The Supreme Court of Kentucky in McGuffey v. Hall,, Ky., 557 S.W.2d 401 (1977), reaffirmed its position on the delegation problem. That position is as follows:
[I]n appropriate instances a cabinetlevel officer or department of the executive branch of the state government may be given broad authority to establish uniform standards and regulations within the scope of the enabling legislation. The theory was that it is better to wait and see what these standards and regulations are and then apply the constitutional tests to the legislation as thus implemented rather than to strike down the enactment itself merely because it might be arbitrarily administered or extended. In a sense, this approach is analogous to the "wait and see" aspect of the perpetuities law enacted in 1960. Id. at 414.
The Court in McGuffey, supra, mentioned the established rule that the United States Constitution and the Kentucky Constitution preclude arbitrary and unreasonable action.
Therefore, it is our opinion that the Secretary for Human Resources may proceed to enact comprehensive regulations concerning the safety of consumer products and chemicals. However, there may be some problem with regulations dealing with the recall of unsafe products as opposed to the banning of such products. We feel the police power may be used to prevent the defective products from reaching consumers, but, that rules or regulations requiring the return of defective products by consumers would violate the ban of the United States Constitution and the Kentucky Constitution against retroactive legislation. It is the thrust of consumer health protection legislation to protect against risks of consumer unjury which accrue in the future rather than those which accrued in the past and are continuing.
Lastly, it must be remembered that it is the responsibility of the Consumer Product Safety Commission to determine whether state product standards unduly burde interstate commerce and whether they unlawfully conflict with federal standards.