Like the Energizer Bunny, when it comes to regulations, the CPSC keeps going and going. The important question, however, is: “Where?” We are throwing out into the marketplace regulation after regulation without stopping to ask: are we effectively addressing real harms and what costs are we imposing on those who must live with what we mandate? What is missing from all this activity is an effort to look at how to address safety in a cost-effective, practical way. While our first obligation is to advance safety, we should look to carry out that responsibility in a way that minimizes damage to the thousands of hardworking business people who provide jobs and keep our economy moving forward. In that, we are falling down on the job.
While the CPSIA often stands, ironically, as an impediment to sensible regulation, in some instances the agency has chosen not to use what little flexibility we have to show appropriate regulatory restraint. When we were aware that we had the flexibility to forego required third party testing of “youth” rugs, carpets and vinyl film, some commissioners chose not to exercise that option. Instead earlier this month a majority of commissioners voted to disrupt a testing regime that has been working for many years. The result is to add confusion and cost without showing any safety benefit.
We will soon be asked to consider a similar regulation for “youth” mattresses. Currently we have in place a comprehensive flammability testing regime unanimously approved by the Commission in 2006. This very rigorous testing regime would be disrupted by new third party testing requirements. Similar issues will come up with respect to children’s wearing apparel and sleepwear. Will the Commission again choose to ignore the flexibility we have and give in to regulating merely for the sake of regulation? Let’s hope it doesn’t happen again.
Yesterday’s discussion by CPSC’s Commissioners of third party testing requirements for rugs and carpets proved to be an excellent example of regulation merely for the sake of regulation. (The webcast can be viewed here. Click on the Commission Meeting of July 7, 2010) At one point I asked my colleagues “Where is the logic?” The answer was swept under the rug.
Let me recap the issue for you. Longstanding CPSC regulations require that carpets and rugs either meet our flammability standards or, as an alternative, small rugs can be labeled as “flammable.” Carpet manufacturers have established internal production testing procedures to assure compliance and those procedures have been working well. While our regulations do not distinguish between children’s rugs and other rugs, my colleagues believe that CPSIA requires that ‘youth rugs’ (whatever they are) be tested, not by the manufacturer, but by an independent third party lab.
At this point I have a number of issues with moving forward with the lab accreditation process for this third party testing, including the following:
- On a process level, we have not yet issued a final rule defining what is a child’s product. How are rug manufacturers to know if third party testing is required? Since rugs made 90 days after the accreditation requirements are issued need to be third party tested, it is important that manufacturers know whether their products are covered. Requiring testing before we have issued a definition is not responsible regulating but it is sweeping logic under the rug.
- On a substantive level, what is a child’s rug? Our proposed regulations are not very clear on this point: a pink or blue carpet in a child’s room is not necessarily a child’s rug; a cartoon character woven into it rather than a stripe may or may not turn the rug into a child’s product (even though there is no difference in the rug’s flammability characteristics); if the rug has a puzzle on it inviting play, then it might be a child’s rug (or perhaps a toy) However, I recently bought a small area rug for my family room with a checkerboard pattern woven into it, with checker pieces included. With no small children at home, I didn’t think that I got a child’s product. Did I?
- Third party testing for youth rugs may perversely impede safety. Our regulations require either testing to the standard or manufacturers of small area rugs have the option of labeling that the rug does not meet the standard and hence may be flammable. Assuming that even the CPSIA does not mandate the ridiculous extreme of requiring third party testing to determine the presence of a label saying that a product does not comply (still an open question), then the costs or burdens of such testing could encourage a manufacturer to abandon testing and instead put on a flammability label. Where is the consumer safety interest here? Again, logic is swept under the rug.
We should use what little flexibility we have in the CPSIA to roll out this law in a way that maximizes safety yet minimizes chaos, and not just implement for the sake of implementation. Safety doesn’t say this has to be done right now, and done this way, so why are we? Even looking under the rug won’t get you that answer.
Read more about this in my statement.