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American households are increasingly connected internallythrough the use of artificially intelligentappliances.1But who regulates the safety of thosedishwashers, microwaves, refrigerators, and vacuums powered byartificial intelligence (AI)? On March 2, 2021, at a virtual forumattended by stakeholders across the entire industry, the ConsumerProduct Safety Commission (CPSC) reminded us all that it has thelast say on regulating AI and machine learning consumer productsafety.

The CPSC is an independent agency comprised of fivecommissioners who are nominated by the president and confirmed bythe Senate to serve staggered seven-year terms. With the Bidenadministration's shift away from the deregulation agenda ofthe prior administration and three potential opportunities to staffthe commission, consumer product manufacturers, distributors, andretailers should expect increased scrutiny andenforcement.2

The CPSC held the March 2, 2021 forum to gather information onvoluntary consensus standards, certification, andproduct-specification efforts associated with products that use AI,machine learning, and related technologies. Consumer producttechnology is advancing faster than the regulations that govern it,even with a new administration moving towards greater regulation.As a consequence, many believe that the safety landscape for AI,machine learning, and related technology is lacking. The CPSC,looking to fill the void, is gathering information through eventslike this forum with a focus on its next steps for AI-relatedsafety regulation.

To influence this developing regulatory framework, manufacturersand importers of consumer products using these technologies mustunderstand and participate in the ongoing dialogue about futureregulation and enforcement. While guidance in these evolving areasis likely to be adaptive, the CPSC's developing regulatoryframework may surprise unwary manufacturers and importers who havenot participated in the discussion.

The CPSC defines AI as any method for programmingcomputers or products to enable them to carry out tasks orbehaviors that would require intelligence if performed byhumans and machine learning as an iterative processof applying models or algorithms to data sets to learn and detectpatterns and/or perform tasks, such as prediction or decisionmaking that can approximate some aspects ofintelligence.3To inform the ongoingdiscussion on how to regulate AI, machine learning, and relatedtechnologies, the CPSC provides the following list ofconsiderations:

These factors and corresponding questions will guide theCPSC's efforts to establish policies and regulations thataddress current and potential safety concerns.

As indicated at the March 2, 2021 forum, the CPSC is taking someof its cues for its fledgling initiative from organizations thathave promulgated voluntary safety standards for AI, includingUnderwriters Laboratories (UL) and the International Organizationfor Standardization (ISO). UL 4600 Standard for Safety for theEvaluation of Autonomous Products covers fully autonomoussystems that move such as self-driving cars along with applicationsin mining, agriculture, maintenance, and other vehicles includinglightweight unmanned aerial vehicles.5Usinga claim-based approach, UL 4600 aims to acknowledge the deviationsfrom traditional safety practices that autonomy requires byassessing the reliability of hardware and software necessary formachine learning, ability to sense the operating environment, andother safety considerations of autonomy. The standard coverstopics like safety case construction, risk analysis, safetyrelevant aspects of the design process, testing, toolqualification, autonomy validation, data integrity, human-machineinteraction (for non-drivers), life cycle concerns, metrics andconformance assessment.6While UL 4600mentions the need for a security plan, it does not define whatshould be in that plan.

Since 2017, ISO has had an AI working group of 30 participatingmembers and 17 observing members.7This group,known as SC 42, develops international standards in the area of AIand for AI applications. SC 42 provides guidance to JTC 1aspecific joint technical committee of ISO and the InternationalElectrotechnical Commission (IEC)and other ISO and IECcommittees. As a result of their work, ISO has published sevenstandards that address AI-related topics and sub-topics, includingAI trustworthiness and big data referencearchitecture.8Twenty-two standards remain indevelopment.9

The CPSC might also look to the European Union's (EU)recent activity on AI, including a twenty-six-page white paperpublished in February 2020 that includes plans to propose newregulations this year.10On the heels of theGeneral Data Protection Regulation, the EU's regulatoryproposal is likely to emphasize privacy and data governance in itsefforts to build[] trust inAI.11Other areas of emphasis include humanagency and oversight, technical robustness and safety,transparency, diversity, non-discrimination and fairness, societaland environmental wellbeing, and accountability.12

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Focused on AI and machine learning, the CPSC is contemplatingpotential new consumer product safety regulations. Manufacturersand importers of consumer products that use these technologieswould be well served to pay attention toand participateinfuture CPSC-initiated policymaking conversations, or riskbeing left behind or disadvantaged by what is to come.

Footnotes

1See Crag S. Smith, A.I. Here, There,Everywhere, N.Y. Times (Feb. 23, 2021), https://www.nytimes.com/2021/02/23/technology/ai-innovation-privacy-seniors-education.html.

2 Erik K. Swanholt & Kristin M. McGaver,Consumer Product Companies Beware! CPSC Expected to Ramp upEnforcement of Product Safety Regulations (Feb. 24, 2021), https://www.foley.com/en/insights/publications/2021/02/cpsc-enforcement-of-product-safety-regulations.

385 Fed. Reg. 77183-84.

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5Underwriters Laboratories, Presenting theStandard for Safety for the Evaluation of Autonomous Vehicles andOther Products, https://ul.org/UL4600 (last visited Mar. 30,2021). It is important to note that autonomous vehicles fall underthe regulatory purview of the National Highway Traffic SafetyAdministration. See NHTSA, Automated DrivingSystems, https://www.nhtsa.gov/vehicle-manufacturers/automated-driving-systems.

6 Underwriters Laboratories, Presenting theStandard for Safety for the Evaluation of Autonomous Vehicles andOther Products, https://ul.org/UL4600 (last visited Mar. 30,2021).

7 ISO, ISO/IEC JTC 1/SC 42, ArtificialIntelligence, https://www.iso.org/committee/6794475.html(last visited Mar. 30, 2021).

8ISO, Standards by ISO/IEC JTC 1/SC 42,Artificial Intelligence, https://www.iso.org/committee/6794475/x/catalogue/p/1/u/0/w/0/d/0(last visited Mar. 30, 2021).

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10 See Commission White Paper on ArtificialIntelligence, COM (2020) 65 final (Feb. 19, 2020), https://ec.europa.eu/info/sites/info/files/commission-white-paper-artificial-intelligence-feb2020_en.pdf.

11 European Commission, Policies, A European approachto Artificial Intelligence, https://digital-strategy.ec.europa.eu/en/policies/european-approach-artificial-intelligence(last updated Mar. 9, 2021).

12Commission White Paper on ArtificialIntelligence, at 9, COM (2020) 65 final (Feb. 19, 2020), https://ec.europa.eu/info/sites/info/files/commission-white-paper-artificial-intelligence-feb2020_en.pdf.

Originally Published by Foley & Lardner, March2021

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The CPSC Digs In On Artificial Intelligence - Consumer Protection - United States - Mondaq News Alerts