Déjà Vu All Over Again

Yesterday the CPSC held an all-day meeting to again address ways to reduce the costs of third party testing.  Recall that three years ago, in Public Law 112-28, Congress told the agency of its concern that testing costs were imposing an undue burden and directed the agency to identify and implement opportunities to reduce that burden.  Over the past three years, the agency has asked for public comment on opportunities to reduce testing costs three, or is it four, times (but who’s counting).

Yesterday’s meeting focused on whether the agency should make “determinations” that certain substances do not and cannot contain phthalates and the various heavy metals listed in the toy standard, ASTM F-963. This inquiry is patterned after the action the agency took in 2009 when it determined that certain substances, such as natural fibers and untreated wood for example, did not and could not contain lead and so therefore there was no need to test for it.

Perhaps the agency will determine that the same substances that are exempt from lead testing should also be exempted from testing for phthalates and heavy metals.  If it does, then perhaps that action will provide a bit of relief for those companies that have been engaged in such useless testing.

But I have two questions for the agency:

(1)  What took you so long to reach such an obvious conclusion?

(2)  What more are you going to do to carry out Congress’ mandate or do you plan to stop there?

The agency was able to make its lead testing determinations very quickly and with a minimum of regulatory gyrations.  It has taken the current agency three years to even make an inquiry into questions that should have been very easy to answer.  What may come out of this exercise is very minimal relief with maximum patting oneself on the back for reducing testing costs.   I do hope the agency proves me wrong.

 

What’s Wrong With This Picture?

[I]ndependent regulatory agencies should consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them. . .”.  President Barack Obama, Executive Order 13579, July 2011.

 

mattress on fireA small announcement in the March 17 Federal Register noted that the CPSC would be collecting information on compliance with the mattress flammability standard that deals with fires caused by smoldering cigarettes, 16 CFR 1632. Why would anyone notice or care?

For those who took President Obama at his word when he announced his executive order, this is just another reminder of how one agency, the CPSC, in its push to regulate, has chosen to ignore basic principles of good government.  Here’s the back story.

Years ago, the CPSC promulgated a safety standard for mattresses addressing the risk of fires caused by smoldering cigarettes.  The test in the standard consisted of laying several of the hottest burning commercially available cigarettes—unfiltered Pall Mall’s—on a mattress and measuring char length after a prescribed time.

In 2006, the agency issued another safety rule addressing the risk of mattress fires caused by small open flames from such things as candles, lighters and matches, 16 CFR 1633.  The test for that standard consists of holding two propane burners to the mattress and measuring the time it takes the mattress to ignite.  This test is a much more rigorous test than that required by the earlier cigarette smoldering test.

For several years now, I have been asking the question why require two separate tests when it is likely that one will suffice to measure the flammability characteristics of mattresses.  It is unlikely that a mattress could pass the open flame test but fail the cigarette smolder test. The agency now has sufficient experience with the more rigorous open flame standard to determine whether the cigarette smoldering standard is really needed.  Would it not be a new and interesting experience to see the CPSC consider actually repealing a standard as being unneeded?

A perversely amusing aspect of this question is the fact that the unfiltered Pall Mall cigarettes required to be used for the testing were phased out by the manufacturer several years ago.  Further, all 50 states now prohibit the sale of any cigarettes other than reduced ignition propensity (RIP) cigarettes—those that go out if the smoker does not continually puff on them.  The CPSC’s reaction to these developments was not to question the need for the underlying regulation but instead to use public funds to develop a new test cigarette.  This new government-developed cigarette is available for purchase from the National Institute for Standards and Technology.

Where does all this leave us?  The CPSC continues to enforce a standard that on its face does not comport with what is happening in the real world.  Mattress manufacturers are forced to buy cigarettes that no one will ever smoke to perform a test that may well be irrelevant. The consumer pays the cost of excessive testing.  And the CPSC, rather than asking the important question of whether this regulation is even needed, instead issues a Federal Register notice telling us about its plans for enforcing it.  Does anyone else see something wrong with this picture?

An Interesting Year So Far

So far, 2014 has been an interesting year.  In January and February, the talk among those who follow CPSC matters closely was about the agency’s efforts to fundamentally change the voluntary recall process under the guise of merely “tweaking” the process.  In March, the conversation is all about the agency’s efforts to dilute the protections that §6(b) of the Consumer Product Safety Act provides to assure that information coming out of the agency is accurate and fair.  I wonder what April will bring.

The proposed changes to the §6(b) information disclosure rule which are now out for public comment alter the current rule and practice in very fundamental ways.  Any company that is regulated by the CPSC should look at the proposal closely to understand how the CPSC proposes to change the rules of the road. As a starting point in this analysis, I recommend that you read an article recently published by the Washington Legal Foundation and written by former CPSC general counsel Cheryl Falvey.  This article gives an overview of the changes the commission proposes and why they are important.  Then you should read the proposal for yourself and start writing comments to the CPSC.

“Insanity: doing the same thing over and over again and expecting different results.” Albert Einstein

 For the third (or is it the fourth?) time in as many years, the CPSC is again “addressing” the issue of reducing third-party testing burdens.  For those who have already albert-einstein1commented repeatedly on this issue, Einstein’s definition of insanity may seem especially apt.  In spite of direction from the Congress to either address testing burdens on its own or report on appropriate statutory authority needed to do so, the agency has repeatedly asked for comment but done nothing to actually reduce the testing burdens that have been so well documented.

This time the agency has announced that it will be holding a workshop, on April 3, focusing on reducing testing burdens associated with the regulations dealing with phthalates and lead content and the eight substances listed in the ASTM F-963 Toy Standard.  The purpose is consider whether it is possible to determine that certain materials, irrespective of manufacturing origin or process, will always comply with agency regulations and therefore do not need testing.  The agency is interested in worldwide production processes—past, current and, interestingly, future—but only with respect to the three areas noted above.  In other words, tell them how past and current materials and manufacturing processes, and looking into a crystal ball, those that might be used in the future throughout the world show that the existing regulations in the three areas always will be complied with.  Anything else is outside the scope of this inquiry.

Because the agency’s scope of inquiry is so narrow, it follows that any relief coming out of it will also be very narrow.  So while I encourage either comments (due by April 17) or participation in the workshop (sign up by March 13), I do not have high hopes that meaningful burden reduction will be the end product.   At best, there might be a slight adjustment to the list of materials the agency has determined do not and cannot contain lead and, hence, do not need testing.  The further development of a list of materials determined not to have phthalates and the other substances listed in the toy standard may also be of help.  At worst, the information collected will go into the maw of the agency and be digested with the other information the agency has already collected, but with no further useful output any time soon, other than for the agency to look like it is busy doing something.

There have been many practical suggestions made over the past three years that, if implemented, would reduce the needless waste of resources that the testing requirements have added to the supply chain and which consumers have to pay for.  But the agency has been operating in a world that values endless process over meaningful results.

Einstein also said “We can’t solve problems by using the same kind of thinking we used when we created them.”  Unfortunately, it does not look like any new thinking will be happening soon.

Good Bye to a Dedicated Public Servant

 

Part of the satisfaction of working in government is the quality and dedication of your colleagues.  And, for a commissioner, that satisfaction is multiplied by having exceptional personal staff who can provide the necessary interface with the agency career experts.  I served as a CPSC commissioner for over eight years.  For five of those years, Joe Martyak served as my legal counsel, as chief of staff when I was acting chairman and also, for a time, as acting director of public affairs.  He did all these jobs with extraordinary competence and good grace.  After I left the commission, he continued to serve as an advisor to Commissioner Ann Marie Buerkle.  Joe has now announced that he will be leaving the CPSC, heading off to new adventures in Hawaii.  On his desk he had a sign that read:  “Just your average Joe.”  I beg to differ; Joe is anything but average.

While Joe will be greatly missed, Commissioner Buerkle has really scored a coup by enticing CPSC veteran Gib Mullan back to the agency.  Gib served as general counsel, director of compliance and was detailed to Customs when the agency was setting up its Import Surveillance Division—in other words, he has seen it all.  When he was at the agency, he was known for his deep intellect, his creativity in solving problems and his honesty—he understood the need to speak the truth even when those in power did not necessarily want to hear it. While no one can “replace” Joe, kudos to Commissioner Buerkle for bringing on such an asset as Gib Mullan.

Wanted: Corporate Psychic

§This past week the CPSC voted to publish for public comment a notice of proposed rulemaking to amend long-standing regulations (16 CFR 1101) dealing with psychic-readerinformation disclosure under §6(b) of the Consumer Product Safety Act. The stated rationale for the NPR is to “modernize” regulations written in 1983, and which, by most accounts, have been working well.  Given the opaque nature of the discussion around this NPR, a Ouija board may be a helpful tool as you read through this NPR.

The §6(b) proposed rule is a continuation of the apparent on-going effort of the Commission altering the collaborative partnership that, over many years,  resulted in successful results for consumers—altering it to one that is both more formalistic, rigid and in my view, less protective of consumers.  This effort includes mandating intrusive compliance programs in inappropriate settings, changing the voluntary recall process to add delay and rigidity among other things, and now, proposing to erode important information disclosure protections mandated by Congress and that form the basis for much of the success of the fast track recall program among other things.

Whether the agency has statutory authority to proceed as proposed is questionable but from the stand point of good public policy, there is no question that the agency seems set on a course that could change the balance that has been the hallmark of its success.

To quickly summarize, §6(b) of the statute, with accompanying regulations, states that before the agency can release information it obtains about a product that identifies a manufacturer or private labeler, it must take certain steps to assure that the disclosure is fair and accurate.  The regulations, written in 1983, seem to be working well except that they do not contemplate electronic communications (something that can be easily rectified).  Further, in its briefing to the Commissioners, the staff did not identify in specific terms how the changes would improve efficiencies.  Instead viewers of the briefing were treated to general statements, speculative scenarios and threats to go into executive session so the public could not benefit from the agency reasoning that provided the basis for the proposed rule.

The proposed rule makes a number of changes to the 1983 regulations that go well beyond “modernizing” those rules.  Taken as a whole, the proposal changes the emphasis from the agency having the proactive obligation to act in a careful and deliberate manner.  Instead information–perhaps in response to that pulled from the internet or from the latest (and generally flawed) toxic product hit list or perhaps stale information where context has changed–can go out the door and, only if the company has a psychic on staff, will it know the release is coming or be able to object. But even more important, this seems like an effort to minimize work for the agency without thought to whether consumers get better information or companies must correct inaccurate innuendos.   

The NPR will soon be available in the Federal Register for comment.  Stakeholders who care about this latest attempt to dilute the deliberate balance Congress struck in the Consumer Product Safety Act should read this proposal carefully and give the agency your views.

The $57 Million Shakedown

The CPSC’s action to force a recall of Buckyballs–small powerful magnets the Commission believes to be unsafe but which are still being legally sold by others—has raised many serious questions about whether the agency acted properly.  But its efforts to blow up the concept of limited liability by individually suing one of the company’s founders–absent any allegation of wrongdoing–has elevated this action into one that could impact all businesses. 

Recently Craig Zucker, a founder of the now-defunct company that sold Buckyballs and the object of CPSC’s ire, and I discussed this case with the U.S. Chamber of Commerce. Calling the long-term implications of this case shocking, the Chamber has now produced a video that details the concerns this case poses for American businesses.  As a former safety regulator, a mother and, of course, a consumer, I strongly believe the agency could have addressed any safety concerns with this product without the unprecedented overreach taken in this case.

Go to FreeEnterprise.com to see the video for yourself.  Here is a link:


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