Not Tweaking But Twerking

Anyone who watched the CPSC Commission meeting last Wednesday (November 13) knows that the word de jour at the agency is “tweaking.”   That was the verb form used over and over again by certain commissioners to minimize some rather dramatic changes that are being proposed to the way in which the agency and companies accomplish voluntary recalls of potentially unsafe products.  But the commissioners who used that verb clearly know that “tweaking” is not what actually is being proposed.  Those commissioners very well know that they are not tweaking the process but changing it radically.

The issue came to the commission in the form of a staff proposal to set out “guidance” (read “requirements”) for negotiating voluntary recalls and what must be included in the press release announcing the recall.  The staff proposal ranged from the helpful (encouraging direct notice to consumers who can be identified) to the innocuous (specifying type font) to the silly (requiring that recall posters be sent out in all instances—when was the last time you noticed a recall poster when shopping?)  The staff proposal also continued the theme that the CPSC should be dictating and designing corporate compliance programs, now as a part of a voluntary recall.  As I have stated often enough, the expertise of the agency’s excellent compliance staff is in negotiating recalls, not designing compliance programs.

The proposal morphed into something more when the Democrat majority of commissioners decided to undo 30 years of experience to change a system that everyone agrees has been working quite well.  The solution in search of a problem that they agreed to is to make the plan setting out the details of a voluntary recall binding and enforceable. As best as I can decipher from watching the meeting and reading their statement, the majority is troubled by the notion that there is no recourse in the courts if a company violates a voluntary agreement made with the commission.  It does not seem relevant to those commissioners that this has not been a problem over the course of the past 30 years that the system has been in place.  Apparently the thinking is that, in theory, this could be a problem so let’s fix it before it breaks.

The majority points to one or two instances where they say the company was slow-walking the agency.  What they do not point out is that, in those instances, the agency did not lack tools to modify conduct (and that any slow-walking was as much the agency’s fault as the company’s) or that going to court would result in an even slower and more burdensome process.  And they completely ignore how their proposal will remove the flexibility the agency now has to address problems that may be discovered as the recall is rolled out.  Under the majority’s proposal, the parties’ obligations will be as described in the agreement—no more and no less.

What is being proposed has the potential to delay and burden a process that everyone thinks has been working well–all to address a hypothetical problem that exists, it seems, only in the minds of some commissioners.   The agency’s mission is to protect consumers.  By decreasing flexibility and adding time and burden to a process that works well now, consumers stand to be on the wrong end of that “tweak.”  As my high school auto shop teacher said, “If it ain’t broke, don’t fix it.”

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