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American households are increasingly connected internally
through the use of artificially intelligent
appliances.1 But who regulates the safety of those
dishwashers, microwaves, refrigerators, and vacuums powered by
artificial intelligence (AI)? On March 2, 2021, at a virtual forum
attended by stakeholders across the entire industry, the Consumer
Product Safety Commission (CPSC) reminded us all that it has the
last say on regulating AI and machine learning consumer product

Evolving Regulatory Landscape

The CPSC is an independent agency comprised of five
commissioners who are nominated by the president and confirmed by
the Senate to serve staggered seven-year terms. With the Biden
administration’s shift away from the deregulation agenda of
the prior administration and three potential opportunities to staff
the commission, consumer product manufacturers, distributors, and
retailers should expect increased scrutiny and

The CPSC held the March 2, 2021 forum to gather information on
voluntary consensus standards, certification, and
product-specification efforts associated with products that use AI,
machine learning, and related technologies. Consumer product
technology 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 events
like this forum with a focus on its next steps for AI-related
safety regulation.

To influence this developing regulatory framework, manufacturers
and importers of consumer products using these technologies must
understand and participate in the ongoing dialogue about future
regulation and enforcement. While guidance in these evolving areas
is likely to be adaptive, the CPSC’s developing regulatory
framework may surprise unwary manufacturers and importers who have
not participated in the discussion.

The CPSC defines AI as “any method for programming
computers or products to enable them to carry out tasks or
behaviors that would require intelligence if performed by
humans” and machine learning as “an iterative process
of applying models or algorithms to data sets to learn and detect
patterns and/or perform tasks, such as prediction or decision
making that can approximate some aspects of
intelligence.”3 To inform the ongoing
discussion on how to regulate AI, machine learning, and related
technologies, the CPSC provides the following list of

Identification: Determine presence of AI
and machine learning in consumer products. Does the product have AI
and machine learning components?

Implications: Differentiate what AI and
machine learning functionality exists. What are the AI and machine
learning capabilities?

Discern how AI and machine learning dependencies affect consumers.
Do AI and machine learning affect consumer product safety?

Distinguish when AI and machine learning evolve and how this
transformation changes outcomes. When do products evolve/transform,
and do the evolutions/transformations affect product

These factors and corresponding questions will guide the
CPSC’s efforts to establish policies and regulations that
address current and potential safety concerns.

Potential Regulatory Models

As indicated at the March 2, 2021 forum, the CPSC is taking some
of its cues for its fledgling initiative from organizations that
have promulgated voluntary safety standards for AI, including
Underwriters Laboratories (UL) and the International Organization
for Standardization (ISO). UL 4600 Standard for Safety for the
Evaluation of Autonomous Products covers “fully autonomous
systems that move such as self-driving cars along with applications
in mining, agriculture, maintenance, and other vehicles including
lightweight unmanned aerial vehicles.”5 Using
a claim-based approach, UL 4600 aims to acknowledge the deviations
from traditional safety practices that autonomy requires by
assessing the reliability of hardware and software necessary for
machine learning, ability to sense the operating environment, and
other safety considerations of autonomy.  The standard covers
topics like “safety case construction, risk analysis, safety
relevant aspects of the design process, testing, tool
qualification, autonomy validation, data integrity, human-machine
interaction (for non-drivers), life cycle concerns, metrics and
conformance assessment.”6 While UL 4600
mentions the need for a security plan, it does not define what
should be in that plan.

Since 2017, ISO has had an AI working group of 30 participating
members and 17 observing members.7 This group,
known as SC 42, develops international standards in the area of AI
and for AI applications. SC 42 provides guidance to JTC 1—a
specific joint technical committee of ISO and the International
Electrotechnical Commission (IEC)—and other ISO and IEC
committees. As a result of their work, ISO has published seven
standards that address AI-related topics and sub-topics, including
AI trustworthiness and big data reference
architecture.8 Twenty-two standards remain in

The CPSC might also look to the European Union’s (EU)
recent activity on AI, including a twenty-six-page white paper
published in February 2020 that includes plans to propose new
regulations this year.10 On the heels of the
General Data Protection Regulation, the EU’s regulatory
proposal is likely to emphasize privacy and data governance in its
efforts to “build[ ] trust in
AI.”11 Other areas of emphasis include human
agency and oversight, technical robustness and safety,
transparency, diversity, non-discrimination and fairness, societal
and environmental wellbeing, and accountability.12


Focused on AI and machine learning, the CPSC is contemplating
potential new consumer product safety regulations. Manufacturers
and importers of consumer products that use these technologies
would be well served to pay attention to—and participate
in—future CPSC-initiated policymaking conversations, or risk
being left behind or disadvantaged by what is to come.


1 See Crag S. Smith, A.I. Here, There,
Everywhere, N.Y. Times (Feb. 23, 2021),

2  Erik K. Swanholt & Kristin M. McGaver,
Consumer Product Companies Beware! CPSC Expected to Ramp up
Enforcement of Product Safety Regulations (Feb. 24, 2021),

3 85 Fed. Reg. 77183-84.

4 Id.

5 Underwriters Laboratories, Presenting the
Standard for Safety for the Evaluation of Autonomous Vehicles and
Other Products, (last visited Mar. 30,
2021). It is important to note that autonomous vehicles fall under
the regulatory purview of the National Highway Traffic Safety
Administration. See NHTSA, Automated Driving

6  Underwriters Laboratories, Presenting the
Standard for Safety for the Evaluation of Autonomous Vehicles and
Other Products, (last visited Mar. 30,

7 ISO, ISO/IEC JTC 1/SC 42, Artificial
(last visited Mar. 30, 2021).

8 ISO, Standards by ISO/IEC JTC 1/SC 42,
Artificial Intelligence,
(last visited Mar. 30, 2021).

9 Id.

10  See Commission White Paper on Artificial
Intelligence, COM (2020) 65 final (Feb. 19, 2020),

11 European Commission, Policies, A European approach
to Artificial Intelligence,
(last updated Mar. 9, 2021).

12 Commission White Paper on Artificial
Intelligence, at 9, COM (2020) 65 final (Feb. 19, 2020),

Originally Published by Foley & Lardner, March

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