Consumers Union of United States, Inc. v. Consum. Prod. Saf. Comm'n, 491 F.2d 810 (2d Cir. 1974). · Go Syfert
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Consumers Union of United States, Inc. v. Consum. Prod. Saf. Comm'n, 491 F.2d 810 (2d Cir. 1974). Cases Citing This Book View Copy Cite
45 citation events (5 in the last 25 years) across 16 distinct courts.
Strongest positive: Missouri, State of v. Biden (moed, 2021-11-29)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
Statutes interpreted (leading-cases list)
#1 21 C.F.R. § 191b.-5(e) cited 1× in this case · 1 total citations of statute #2 15 U.S.C. § 1261-74 cited 1× in this case · 5 total citations of statute #2 21 C.F.R. § 2 cited 1× in this case · 6 total citations of statute #7 15 U.S.C. § 2079 cited 1× in this case · 39 total citations of statute #1 21 C.F.R. § 191b.5(e) cited 1× in this case · 1 total citations of statute
Top citers, strongest first. 36 distinct citers. How cited ↗
cited Cited as authority (rule) Missouri, State of v. Biden
E.D. Mo. · 2021 · confidence medium
Safety Comm’n, 491 F.2d 810, 812 (2d Cir. 1974) (noting agency “must not ignore evidence placed before it by interested parties”).
cited Cited as authority (rule) Martin v. Hartford Life & Accident Insurance
W.D.N.Y. · 2011 · confidence medium
Id., at 812 (emphasis added); see also McFann v. Southwestern Power Elec.
cited Cited as authority (rule) Carabell v. United States Army Corps of Engineers
E.D. Mich. · 2003 · confidence medium
Nor “ignore evidence placed before it by interested parties.” Consumers Union of U.S., Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2nd Cir.1974).
discussed Cited as authority (rule) Crutchfield v. United States Army Corps of Engineers
E.D. Va. · 2002 · confidence medium
An agency may neither “ignore evidence placed before it by interested parties!,]” Consumers Union of U.S., Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir.1974); Van Abbema v. Fornell, 807 F.2d 633, 639 (7th Cir.1986), nor rely on post-hoc rationalizations or justifications in supporting its decisions, see e.g., Motor Vehicle Mfrs.
discussed Cited as authority (rule) South Carolina ex rel. Tindal v. Block
4th Cir. · 1983 · confidence medium
There is no obligation to make references in the agency explanation “to all the specific issues raised in comments.” Appalachian Power Co., 579 F.2d at 854 , quoting Kennecott Copper Corp. v. EPA, 462 F.2d 846, 850 (D.C.Cir.1972); Consumers Union of U.S., Inc. v. Consumer Product Safety Comm’n, 491 F.2d 810, 812 (2d Cir.1974).
discussed Cited as authority (rule) State of South Carolina v. Block
4th Cir. · 1983 · confidence medium
There is no obligation to make references in the agency explanation "to all the specific issues raised in comments." Appalachian Power Co., 579 F.2d at 854 , quoting Kennecott Copper Corp. v. EPA, 462 F.2d 846, 850 (D.C.Cir.1972); Consumers Union of U.S., Inc. v. Consumer Product Safety Comm'n, 491 F.2d 810, 812 (2d Cir.1974).
discussed Cited as authority (rule) Office of Communication of the United Church of Christ v. Federal Communications Commission and United States of America, Cbs, Inc., National Association of Broadcasters, Radio Station Licensees, American Broadcasting Companies, Inc., National Radio Broadcasters Association, Mutual Broadcasting System, Inc., Black Citizens for Fair Media, Action for Children's Television, National Organization for Women, Empowerment Through Communications, Citizens Committee on the Media, Tribune Company, National Organization for Women--New York Chapter, National Organization for Women--Essex County, New Jersey Chapter, Office of Communication of the Episcopal Church, Wncn Listeners Guild, Inc., Episcopal Radio-Television Foundation, Department of Communication of the United States Catholic Conference, and Communications Commission of the National Council of Churches, Intervenors. Classical Radio for Connecticut, Inc. v. Federal Communications Commission and United States of America, National Citizens Committee for Broadcasting, National Association of Broadcasters, and American Legal Foundation, Intervenors. Henry Geller v. Federal Communications Commission and United States of America, Cbs, Inc., American Broadcasting Companies, Inc. And National Association of Broadcasters, Intervenors. National Association for the Advancement of Colored People v. Federal Communications Commission and United States of America, American Broadcasting Companies, Inc. And National Association of Broadcasters, Intervenors
D.C. Cir. · 1983 · confidence medium
For a more complete exposition of this standard of review, see pp. 1424-1426 supra 89 See, e.g., Consumers Union of the United States Inc. v. CPSC, 491 F.2d 810, 812 (2d Cir.1974) 90 See State Farm Mutual Auto.
discussed Cited as authority (rule) National Tour Brokers Association v. Interstate Commerce Commission
D.C. Cir. · 1982 · confidence medium
National Nutritional Foods Ass'n v. Weinberger, 512 F.2d 688 , 701 at n. 11 (2nd Cir.), cert. denied sub nom., National Nutritional Foods Ass'n v. Matthews, 423 U.S. 827 , 96 S.Ct. 44 , 46 L.Ed.2d 445 (1975); Consumers Union of the United States v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2nd Cir. 1974).
discussed Cited as authority (rule) National Tour Brokers Ass'n v. Interstate Commerce Commission
D.C. Cir. · 1982 · confidence medium
National Nutritional Foods Ass’n v. Weinberger, 512 F.2d 688 , 701 at n. 11 (2nd Cir.), cert. denied sub nom., National Nutritional Foods Ass’n v. Matthews, 423 U.S. 827 , 96 S.Ct. 44 , 46 L.Ed.2d 445 (1975); Consumers Union of the United States v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2nd Cir. 1974).
discussed Cited as authority (rule) St. Joseph's Hospital Health Center v. Blue Cross of Central New York, Inc.
N.D.N.Y. · 1979 · confidence medium
Camp v. Pitts, 411 U.S. 138, 141 , 93 S.Ct. 1241, 1243 , 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 , 91 S.Ct. 814, 823 , 28 L.Ed.2d 136 (1971). 19 Inasmuch as the agency record is the focal point of notice and comment rulemaking review, and since a trial record is not ordinarily prepared, Section 553(c) requires the proponent to “incorporate in the rules adopted a concise [and] general statement of their basis and purpose.” While this provision does not require the agency to supply the type of specific and detailed findings and conclusions which a…
cited Cited as authority (rule) United States Lines, Inc. v. Federal Maritime Commission and United States of America, Hapag-Lloyd A. G., Intervenors
D.C. Cir. · 1978 · confidence medium
See Moss v. FPC, 164 U.S.App.D.C. 1, 5 , 502 F.2d 461 , 465 (1974); Consumers Union of U. S., Inc. v. Consumer Product Safety Comm’n, 491 F.2d 810, 812 (2d Cir. 1974).
discussed Cited as authority (rule) Aqua Slide 'N' Dive Corp. v. Consumer Product Safety Commission
5th Cir. · 1978 · confidence medium
Unarticulated reliance on Commission “experience” may satisfy an “arbitrary, capricious” standard of review, Consumers Union of United States, Inc. v. Consumer Product Safety Comm’n, 491 F.2d 810, 812 (2d Cir. 1974), but it does not add one jot to the record evidence.
cited Cited as authority (rule) Hiatt Grain & Feed, Inc. v. Bergland
D. Kan. · 1978 · confidence medium
Consumer Union of U.S., Inc. v. Consumer Product Safety Comm’n, 491 F.2d 810, 812 (2d Cir. 1974).
discussed Cited as authority (rule) National Citizens Committee for Broadcasting v. Federal Communications Commission
D.C. Cir. · 1977 · confidence medium
We recognize that the Commission is not required in informal rulemaking to consider exhaustively every idea put forth or to explain in detail the reasons why certain alternatives were rejected, see Consumers Union of the United States, Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir. 1974).
discussed Cited as authority (rule) National Citizens Committee for Broadcasting and Friends of the Earth v. Federal Communications Commission and United States of America, American Broadcasting Companies, Inc. (Abc), Cbs, Inc., Intervenors. Committee for Open Media v. Federal Communications Commission and the United States of America, Council on Economic Priorities and United Farm Workers of America and Henry Geller, Intervenors. Council on Economic Priorities v. Federal Communications Commission and United States of America, United Farm Workers of America, Intervenor
D.C. Cir. · 1977 · confidence medium
Id. 74 We recognize that the Commission is not required in informal rulemaking to consider exhaustively every idea put forth or to explain in detail the reasons why certain alternatives were rejected, see Consumers Union of the United States, Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir. 1974).
discussed Cited as authority (rule) Action For Children's Television v. Federal Communications Commission
D.C. Cir. · 1977 · confidence medium
Comm'n v. FCC, 513 F.2d 1142 , 1165 & n. 31 (9th Cir.), cert. denied, 423 U.S. 836 , 96 S.Ct. 62 , 46 L.Ed.2d 54 (1975) 22 Chrysler Corp. v. DOT, 472 F.2d 659 , 669 (6th Cir. 1972) (agency may "act on the basis of date contained in its own files or on its own views or opinions"); Consumers Union v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir. 1974) (it may be "sufficient that the regulations (are) supported by evidence in the Commission's files, or even by its experience"); see Flying Tiger Line, Inc. v. Boyd, 244 F.Supp. 889, 892 (D.D.C.1965).
discussed Cited as authority (rule) Action for Children's Television v. Federal Communications Commission
D.C. Cir. · 1977 · confidence medium
Chrysler Corp. v. DOT, 472 F.2d 659 , 669 (6th Cir. 1972) (agency may “act on the basis of date contained in its own files or on its own views or opinions”); Consumers Union v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir. 1974) (it may be “sufficient that the regulations [are] supported by evidence in the Commission’s files, or even by its experience”); see Flying Tiger Line, Inc. v. Boyd, 244 F.Supp. 889, 892 (D.D.C.1965).
cited Cited as authority (rule) National Nutritional Foods Ass'n v. Mathews
2d Cir. · 1977 · confidence medium
Consumer Union of the United States v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir. 1974).
cited Cited as authority (rule) National Nutritional Foods Association v. Mathews
2d Cir. · 1977 · confidence medium
Consumer Union of the United States v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir. 1974).
discussed Cited as authority (rule) American Medical Ass'n v. Mathews
N.D. Ill. · 1977 · confidence medium
Consumers Union v. Consumer Product Safety Comm’n, 491 F.2d 810, 812 (2d Cir. 1974); Angel v. Butz, 487 F.2d 260, 262-63 (10th Cir. 1973); General Telephone Co. of Southwest v. United States, 449 F.2d 846, 862 (5th Cir. 1971).
discussed Cited as authority (rule) Missouri ex rel. Missouri-St. Louis Metropolitan Airport Authority v. Coleman
D.D.C. · 1977 · confidence medium
Market Street Railway Co. v. Railroad Commission of California, 324 U.S. 548, 560 , 65 S.Ct. 770 , 89 L.Ed. 1171 (1945); Consumers Union of United States, Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2 Cir. 1974).
discussed Cited as authority (rule) STATE OF MO., ETC. v. Coleman
D.D.C. · 1977 · confidence medium
Market Street Railway Co. v. Railroad Commission of California, 324 U.S. 548, 560 , 65 S.Ct. 770 , 89 L.Ed. 1171 (1945); Consumers Union of United States, Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2 Cir. 1974).
discussed Cited as authority (rule) National Nutritional Foods Ass'n v. Mathews
S.D.N.Y. · 1976 · confidence medium
The Commissioner, in his earlier statement proposing the regulations, stated that “there is widespread promotion to the laity of excessive quantities of these vitamins for prophylaxis and treatment of a variety of diseases .and disorders.” That statement, while it probably is supportable simply on the basis of the Commissioner’s own knowledge from experience, Consumers Union of United States, Inc. v. Consumer Product Safety Comm., 491 F.2d 810, 812 (2d Cir. 1974); Chemical Leaman Tank Lines, Inc. v. United States, 368 F.Supp. 925, 940 (D.Del.1973), also finds support in the record materi…
discussed Cited as authority (rule) Cosmetic, Toiletry & Fragrance Ass'n v. Schmidt (2×) also: Cited "see, e.g."
D.D.C. · 1976 · confidence medium
Thus, the assertion that the Commissioner ignored substantive comments is, in the context of this case, “belied by the fact that the Commissioner . . . incorporated in the final regulations suggestions of others who submitted comments.”' Finally, while there must be a “reasoned basis for agency action,” informal rule-making does not require “a formal opinion specifically covering all rejected alternatives.” Consumers Union of United States, Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir. 1974).
cited Cited as authority (rule) GTE Sylvania Inc. v. Consumer Product Safety Commission
D. Del. · 1975 · signal: cf. · confidence medium
Cf. Consumers Union of the United States v. Consumer Product Safety Commission, 491 F.2d 810, 812 (C.A. 2,1974).
discussed Cited as authority (rule) National Nutritional Foods Association v. Weinberger
S.D.N.Y. · 1974 · confidence medium
S., Inc. v. Dept, of L., 487 F.2d 342, 348 (2d Cir. 1973); Bunny Bear, Inc. v. Peterson, 473 F.2d 1002, 1005-1006 (1st Cir. 1973); Unimed, Inc. v. Richardson, 147 U.S.App.D.C. 368 , 458 F.2d 787, 789 (1972); Boating Industry Association v. Boyd, 409 F.2d 408, 411 (7th Cir. 1969); Citizens Band Association v. United States, 375 F.2d 43, 53-54 (9th Cir. 1967), it would be “sufficient that the *149 regulations be supported by evidence in [the Commissioner’s] files, or even by [his] experience.” Consumers Union of United States, Inc. v. Consumer Product Safety Commission, 491 F.2d 810, at 81…
cited Cited "see" Jayvee Brand, Inc. v. United States of America
D.C. Cir. · 1983 · signal: see · confidence high
See Consumers Union of United States, Inc. v. CPSC, 491 F.2d 810, 812 (2d Cir.1974); 15 U.S.C. § 2051 (1976) (broad congressional findings and purposes underlying Consumer Product Safety Act).
cited Cited "see" National Farmers' Organization, Inc. v. Block
E.D. Wis. · 1983 · signal: see · confidence high
See Consumers Union of United States, Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir.1974); Kennecott Copper Corp. v. EPA, 462 F.2d 846, 850 (D.C.
cited Cited "see" Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission
2d Cir. · 1978 · signal: see · confidence high
See Consumers Union of United States, Inc. v. Consumer Product Safety Comm’n, 491 F.2d 810, 812 (2d Cir. 1974).
discussed Cited "see" Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission
2d Cir. · 1978 · signal: see · confidence high
See Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 491 F.2d 810, 812 (2d Cir. 1974). 49 The petition for review is denied. * The Honorable Walter P. Gewin, United States Court of Appeals for the Fifth Circuit, sitting by designation ** The Honorable Jack R.
discussed Cited "see, e.g." Shoreham Cooperative Apple Producers Ass'n v. Donovan
2d Cir. · 1985 · signal: see also · confidence medium
This explanation must be sufficiently detailed to permit effective judicial review, see Camp v. Pitts, 411 U.S. 138, 142-43 , 93 S.Ct. 1241, 1244 , 36 L.Ed.2d 106 (1973) (per curiam); National Nutritional Foods Ass’n v. Weinberger, supra, 512 F.2d at 701 ; see also Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., supra, and, to some extent, should take account of evidence placed be fore the agency by interested parties, Consumers Union of United States, Inc. v. Consumer Product Safety Comm’n, 491 F.2d 810, 812 (2d Cir.1974).
discussed Cited "see, e.g." Shoreham Cooperative Apple Producers Association, Inc. v. Raymond J. Donovan
2d Cir. · 1985 · signal: see also · confidence medium
This explanation must be sufficiently detailed to permit effective judicial review, see Camp v. Pitts, 411 U.S. 138, 142-43 , 93 S.Ct. 1241, 1244 , 36 L.Ed.2d 106 (1973) (per curiam); National Nutritional Foods Ass'n v. Weinberger, supra, 512 F.2d at 701 ; see also Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., supra, and, to some extent, should take account of evidence placed before the agency by interested parties, Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 491 F.2d 810, 812 (2d Cir.1974). 15 At the outset, we note that this is…
discussed Cited "see, e.g." Mandel v. Block
S.D.N.Y. · 1983 · signal: see, e.g. · confidence medium
See, e.g., Consumers Union of United States v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir.1974) (“a formal opinion specifically covering all rejected alternatives is not required in an informal rule making proceeding”); see also Home Box Office Inc. v. Federal Communications Commission, 567 F.2d 9 , 35-36 & n. 58 (D.C.Cir.), cert. denied, 434 U.S. 829 , 98 S.Ct. 111 , 54 L.Ed.2d 89 (1977).
cited Cited "see, e.g." Office of Communication of the United Church of Christ v. Federal Communications Commission
D.C. Cir. · 1983 · signal: see, e.g. · confidence medium
See, e.g., Consumers Union of the United States Inc. v. CPSC, 491 F.2d 810, 812 (2d Cir.1974). .
discussed Cited "see, e.g." National Nutritional Foods Ass'n v. Weinberger
2d Cir. · 1975 · signal: see also · confidence low
See also Camp v. Pitts, 411 U.S. 138, 140-141 , 93 S.Ct. 1241 , 36 L.Ed.2d 106 (1973) (per curiam). rf.* The requirement in 5 U.S.C. § 553 (c) that an agency promulgating rules pursuant to the “notice and comment” procedure “incorporate in the rules a concise general statement of their basis and purpose” certainly does not require the agency to supply specific and detailed findings and conclusions of the kind customarily associated with formal proceedings, Consumer Union of United States v. Consumer Product Safety Commission, 491 F.2d at 812 .
discussed Cited "see, e.g." National Nutritional Foods Association v. Weinberger
2d Cir. · 1975 · signal: see also · confidence low
See also Camp v. Pitts, 411 U.S. 138, 140-141 , 93 S.Ct. 1241 , 36 L.Ed.2d 106 (1973) (per curiam). 35 The requirement in 5 U.S.C. § 553 (c) that an agency promulgating rules pursuant to the "notice and comment" procedure "incorporate in the rules a concise general statement of their basis and purpose" certainly does not require the agency to supply specific and detailed findings and conclusions of the kind customarily associated with formal proceedings, Consumer Union of United States v. Consumer Product Safety Commission, 491 F.2d at 812 .
Retrieving the full opinion text from the archive…
CONSUMERS UNION OF UNITED STATES, INC., Petitioner,
v.
CONSUMER PRODUCT SAFETY COMMISSION, Respondent
161, Docket 73-1617.
Court of Appeals for the Second Circuit.
Jan 4, 1974.
491 F.2d 810
1974 U.S. App. LEXIS 10709
Marsha N. Cohen, Washington, D. C. (Peter H. Schuck, Washington, D. C., on the brief), for petitioner., Thomas S. Brett, Atty., Dept. of Justice, Washington, D. C. (Thomas E. Kauper, Asst. Atty. Gen., Gregory B. Hovendon, Atty., Dept. of Justice; Michael A. Brown, Acting Gen. Counsel, Paul W. Hallman, Counsel, Consumer Product Safety Commission, Washington, D. C., on the brief), for respondent.
Moore, Hays, Timbers.
Cited by 39 opinions  |  Published
TIMBERS, Circuit Judge:

The sole issue before us on this petition to review portions of regulations of the Food and Drug Administration, 21 C.F.R. §§ 191b.5(e), 191b.-3(e)(2) and 191b.7 (1973), establishing standards for electrically operated toys and other electrically operated articles intended for use by children is whether the determination by the Commissioner of Food and Drugs in promulgating the regulations was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. 5 U.S.C. § 706 (2)(A) (1970). We hold it was not. We deny the petition to review.

On January 13, 1972, the Commissioner proposed, and later published in the Federal Register, certain regulations of the FDA designed to ban electrically operated toys or other electrically operated articles intended for use by children which failed to meet certain prescribed labeling, design, construction and performance standards. 37 Fed.Reg. 1020-27 (January 21, 1972). The regulations were proposed to implement the Federal Hazardous Substances Act of 1960, as amended by the Child Protection and Toy Safety Act of 1969, 15 U.S.C. §§ 1261-74 (1970), and pursuant to powers delegated by the Secretary of HEW to the Commissioner by 21 C.F.R. § 2.-120(a)(1) (1973). [1]

Consideration of the proposed regulations followed standard rule making procedure prescribed by the Administrative Procedure Act, 5 U.S.C. § 553 (1970), including requirements as to notice and public participation. Among the forty-five comments received in response to the Commissioner’s invitation was a two page letter of comment submitted by the petitioner herein on February 24, 1972. After due consideration, the Commissioner concluded that the regulations should be adopted. Accordingly, they were promulgated on March 2, 1973, to become effective September 3, 1973. 38 Fed.Reg. 6141-48 (March 7,1973).

Having failed to persuade the Commissioner to incorporate in the regulations as promulgated those modifications suggested in its letter of comment, petitioner filed its petition to review in our Court on April 27, 1973. Essentially petitioner claims that the agency action here under review, 21 C.F.R. §§ 191b.-5(e), 191b.3(e)(2) and 191b.7 (1973), was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2) (A) (1970) because the Commissioner (1) failed to require double insulation or grounding on toys with high shock risk, (2) chose maximum acceptable surface temperatures for electrically operated toys, and (3) relied upon cautionary labeling to protect children from thermal hazards —all without full consideration of crucial safety issues and without any ap[*812] parent rational basis for his determination. We disagree.

Here, under the “arbitrary, capricious” standard, our scope of review is even narrower than it was in Scenic Hudson Preservation Conference v. FPC (Scenic Hudson 11), 453 F.2d 463 (2 Cir. 1971), cert. denied, 407 U.S. 926 (1972), where the statutory standard was “substantial evidence”. Under either standard, at a minimum, an agency must exercise its jurisdiction where it properly lies. It must not ignore evidence placed before it by interested parties. See Scenic Hudson II, supra, 453 F.2d at 467-68.

Petitioner here does not claim that respondent failed to exercise its jurisdiction. It does claim that the FDA failed even to consider its position—especially its position with regard to grounding. This claim is belied by petitioner’s letter of comment, by the fact that the Commissioner specifically rejected other suggestions of petitioner, and by the fact that the Commissioner incorporated in the final regulations suggestions of ten others who submitted comments.

Scenic Hudson II also held that there must be a reasoned basis for agency action. However, a formal opinion specifically covering all rejected alternatives is not required in an informal rule making proceeding.

Petitioners challenge the sufficiency of the factual record. The record need not be as complete under the “arbitrary, capricious” standard as under the “substantial evidence” standard. Thus, in the present case, it is sufficient that the regulations be supported by evidence in the Commission’s files, or even by its experience. The record clearly establishes that there was sufficient evidence to support the regulations in the three respects challenged by petitioner:

(1) The record supports the Commission’s choice of a generalized electric shock standard, rather than one of the two shock-minimization strategies favored by petitioner. There was evidence that grounding is not effective because of the small number of households wired for three-prong plugs. The evidence in favor of rejecting double insulation was more tenuous, but the FDA could have concluded that the general standard is more desirable because it gives the manufacturer a wider choice of cost options.
(2) There was a wealth of evidence supporting the chosen maximum surface temperature levels, assuming an “irreversible tissue damage” standard. From the relatively small number of pain-related injuries, and from its own experience, the FDA could have concluded that tissue damage was the appropriate standard.
(3) The child developmental information, and the letter from the Director of the Poison Control Center, provided a sufficient basis for the decision to rely on labeling for toys used by children older than eight years of age.

In short, our careful examination of the record satisfies us that the regulations were promulgated on the basis of an adequate administrative record indicating that the Commissioner fairly considered, among other things, pertinent aspects of electrical shock hazards, thermal ihjury hazards and cautionary labeling. The claims asserted by petitioner do not warrant our interfering with a presumably expert agency’s exercise of its rule making discretion. Congress gave the job of regulating toy manufacturers to the Secretary of HEW and more recently to the Consumer Products Safety Commission, not to us. We have no special expertise in the complexities of child development.

Petition denied.

1

. Pursuant to the Consumer Product Safety Act, 15 U.S.C. § 2079(a) (1970), the functions of the Secretary of HEW (and through him, the functions of the Commissioner) under the Federal Hazardous Substances Act were transferred on May 14, 1973 to the Consumer Product Safety Commission. The latter was substituted for the FDA as respondent herein on June 11, 1973.

Since the regulations here involved were proposed and promulgated by the FDA, the parties in their briefs and arguments have referred to the FDA, rather than the Commission, as the respondent. We do likewise.