Archive for April, 2010

Is Anyone Listening? Yes!

One of the main reasons I started blogging was to talk directly with folks who are impacted by CPSC actions.  With the challenges of implementing the CPSIA, many businesses who did not even know about the CPSC are now finding out first-hand how extensive our powers and authorities are. 

Blogging lets me flag important issues so that you do not have to become a regular reader of the Federal Register to know what we are up to.  However, I have heard the comment made, both in response to my blog and in meetings I have with the public, that it does not appear that the agency is listening to or interested in the opinions of real people impacted by the law.  Over and over, I hear things like “Why should I bother to comment when my comments won’t make any difference?” 

My answer is simple:  your comments can and do make a difference.  I often circulate the comments I get on my blog to my colleagues and the senior staff of the agency.  Thoughtful comments are discussed and considered inside the agency.  And if you respond to formal requests for comments—such as the proposed rule about the database voted on last week and which will appear in the Federal Register soon—the agency has a legal obligation to consider and address your comments. 

I realize that submitting comments takes a lot of time and resources but if you don’t let us know what you think, we don’t have your valuable information.  Sure, we hear regularly from groups who say they represent important points of view but who have never actually created a job or met a payroll, much less tried to make sense out of the many regulations we issue.  Your real world view fills a real agency need.

Data…Data…Data…what’s the real story?

This week the Commission voted to publish for comment a seriously flawed proposal to create a public database of consumer complaints. My colleague, Commissioner Northup, and I tried to make the database a more useful tool for consumers, but ran into partisan 3-2 votes.  This means this proposal seriously falls short of serving the interests of the public–both consumers and product sellers. Too bad for the public that the majority did not agree to inject some practical, common sense requirements into the rule.

  • The proposed database will allow virtually any information from anyone–not necessarily someone who used the product or was hurt, but even people who have only secondhand or thirdhand knowledge of an event.  This includes information from advocacy groups, lawyers and competitors who may have their own reasons to “salt” the database.
  • The requirements for a report to be posted are so minimal that people who read about an incident in the newspaper can submit a report for posting.
  • We tried to require reports to have basic information such as the approximate date and location of the incident.  How can a manufacturer investigate an incident without that? No go with the majority.
  • While every effort will be made to prevent the disclosure of personally identifiable information, the majority rejected giving parents the ability to take down information posted by third parties about incidents involving their family. Where is the sense of privacy?
  • A product report will be sent to the manufacturer, however it is up to the manufacturer to comment on its accuracy.  If the manufacturer comments that the report is materially inaccurate, it is likely staff will post the comments with the report, rather than take the report down.  Staff is not required to investigate the report,–only to validate that the correct boxes were checked.
  • While it is stated that staff will review the data, it will be very brief. Complaints and comments will not necessarily be investigated. Staff investigations will depend on resources. Answer to our request for a resource estimate? Not yet been done.
  • And, in a real stretch, the proposed rule states it will have no impact on small business since those companies probably will not be subject of very many complaints and, besides, it would only take a couple of hours for them to deal with complaints (this is based on unverified, sketchy information).  Never mind that one inaccurate report that goes viral on the internet can cause irreparable injury to a small business.

I truly believe we could and should create a useful, searchable data site for consumers to see what others have said about incidents with products that could cause injury.  But to make the database helpful for consumers, we need to capture the best facts about an incident. Thanks to this proposal, chances will be hit or miss at best.

Help change those chances by commenting on this document. Speak up in this debate, and help us get a unanimous vote for the consumer and give you a database you want to have and that you can really use.

Small Biz: Don’t Worry, Be Happy

CPSC staff has determined that the publicly available database of consumer complaints required by CPSIA will have little or no economic impact on small businesses.

This finding was included in a notice of proposed rulemaking (NPR) which was discussed by the Commission last week and on which we will be voting Thursday, April 21.  The discussion of this issue will be webcast (at 9 am EDT) on the CPSC website.  

The database is scheduled to be operational in March 2011, and will provide a readily searchable format for people to access reports of harm caused by consumer products submitted by consumers, plaintiffs’ attorneys, advocacy organizations and trade competitors, among others on a rather expansive list. We are planning a national education effort to encourage the public to report incidents of harm caused by consumer products. While we do not know how many reports we will get, it could be quite significant. 

Though the staff will review each submittal before posting, staff will not investigate each incident for accuracy.  Instead, manufacturers will be given 10 days to comment on the accuracy of reports identifying their products.  It is the responsibility of the manufacturer to provide proof of any inaccuracy.  I can see where inaccurate information may be posted and seen by consumers for an indefinite period of time before a correction is made, if a correction is ever made at all.  This would be a great disservice to consumers and could adversely affect the sales and use of a product.   

 Here is what the proposed rule says about how the data base will impact small businesses:

 because of their smaller sales volumes, small manufacturers are less likely to experience any impacts.  And, even if a small firm chooses to respond to an incident report, the amount of time to do so would not likely be more than a few hours . . .

Note that reputational harm due to an inaccurate report is not considered an adverse impact on business. 

I am not comfortable with the staff’s assertion that the new public database will not have an economic impact on small entities and discussed this point during our public briefing last Wednesday.  However, I’m not the expert; you are.

  •  Do you really think because your sales volumes are smaller, it is less likely that your products will find their way into this database? 
  • If someone files a complaint, it will only take a few hours to respond (and deal with the ensuing investigation by staff)? 

If you disagree with our staff that taking a few hours out of your business day to respond to inaccurate reports is of no consequence, then you need to let us know that.

When the Notice of Proposed Rule for the Publicly Available Consumer Product Safety Information Database is printed in the Federal Register it will be posted on CPSC’s website and you will have an opportunity to comment.  Let us know what you think!

Test the Testing?

Retailers play an important role in helping assure safety, especially under the CPSIA.  Unfortunately, the law’s provisions about retroactivity and general enforcement by state attorneys general, among others, have led many retailers to demand testing beyond what is required.

To help fix that, I have been pushing for a Commission statement to reinforce the fact that retailers may rely on the testing and certification done by their suppliers. 

How would this work? The CPSIA and its regulations require domestic manufacturers and importers of children’s products to have them: 1) tested by a third party testing laboratory approved by the CPSC; and 2) certify compliance with applicable safety regulations based on those tests.  Importers may rely on testing done by foreign manufacturers as long as that testing was done in an approved lab.

My proposal is an enforcement policy to make clear that  retailers may rely on certificates from suppliers and that they would not be subject to penalties for selling products that do not comply with our safety standards if they relied in good faith on those certificates.  Issue a false or misleading certificate or give us a reason to believe the retailer knew or should have known that the certificate was false, and we can come after you. Should the product violate an applicable safety standard, of course it could be recalled.

 Since I hope we can get this policy out next month, help us with your input:

  • If you are a supplier, has a retailer required you to do redundant or excessive testing, or has a retailer refused to accept your test results?
  • If you are a supplier, would such a statement be helpful?  If not, what actions could the Commission take that would be helpful?
  • If you are a retailer, would such a Commission statement be helpful?
  • If you are a supplier or a retailer, what should be in this policy?

Speak up and help write this policy. Thanks!


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