The opinion of the court was delivered by: Richard Mills, District Judge:
On July 10, 1986, Rita Deck purchased the prescription drug
Asendin from Sullivan Drugs, Inc. and Terry McBrien, a
pharmacist employed by Sullivan. The drug was not dispensed in
a child-proof container as required by federal law.
One month later, on August 15, Rita's 2 1/2 year old
daughter, Brandi, ingested the drug and, as a result, sustained
severe and permanent injuries.
The Decks have brought this action under the Consumer Product
Safety Act, 15 U.S.C. § 2072, seeking $6,000,000 in damages
against the Defendants. Defendants have moved to dismiss on the
basis that § 2072 does not provide for a private cause of
action in this case and thus jurisdiction is improper. The
motion to dismiss raises a novel question under the Consumer
Product Safety Act which was not addressed by two courts which
allowed recovery in similar cases. See Baas v. Hoye,
766 F.2d 1190 (8th Cir. 1985); Wahba v. H & N Prescription Center, Inc.,
539 F. Supp. 352 (E.D.N.Y. 1982).
In short, we hold that the Consumer Product Safety Commission
must by rule designate prescription drugs for regulation before
the act can apply.
We begin with the statute at issue. Section 2072(a) of the
Consumer Product Safety Act provides:
Any person who shall sustain injury by reason of
any knowing (including willful) violation of a
consumer product safety rule, or any other rule or
order issued by the Commission may sue any person
who knowingly (including willfully) violated any
such rule or order in any district court of the
United States in the district in which the
defendant resides or is found or has an agent,
shall recover damages sustained, and may, if the
court determines it to be in the interest of
justice, recover the costs of suit, including
reasonable attorneys' fees. . . .
15 U.S.C. § 2072(a). By its terms § 2072 is limited to
providing a private cause of action for violation of a consumer
product safety rule or other rule or order of the Commission;
the statute does not provide a private cause of action for
violation of the act itself. Drake v. Honeywell, Inc.,
797 F.2d 603, 606 (8th Cir. 1986).
The Consumer Product Safety Act was passed by Congress in
1972 for the purpose of, inter alia, protecting "the public
against unreasonable risks of injury associated with consumer
products." 15 U.S.C. § 2051(b)(1). The act expressly excludes
"drugs, devices, or cosmetics" from the definition of consumer
product found in § 2052. See id. § 2052(a)(1)(H). In addition,
the term "consumer product safety rule" is defined as a
"consumer product safety standard" or "a rule under this
chapter declaring a consumer product a banned hazardous
product." Id. § 2052(a)(2).
Therefore, by its own terms, the act does not regulate
prescription drugs. Plaintiffs argue that their private cause
of action under the act exists because § 2072(a) provides a
cause of action for violation of a consumer product safety rule
(which does not apply) and any other rule or order of the
Commission. One such "rule or order" requires that prescription
drugs be dispensed only in "special" (i.e. child-proof)
packaging. 16 C.F.R. § 1700.14(a)(10).
Prior to the enactment of the Consumer Product Safety Act and
the creation of the Commission in 1972 several specific
regulatory statutes were in existence, including the Poison
Prevention Packaging Act of 1970, 15 U.S.C. § 1471 et seq. The
Senate Report accompanying the Consumer Product Safety Act
explains that these pre-existing regulatory statutes were
brought under the jurisdiction of the Commission rather than
repealed in favor of the more general Consumer Product Safety
Act, both because the existing legislation represented explicit
findings by Congress as to specific consumer hazards and to
avoid duplicative regulatory action under the new act when ...