It has been said that no two people ever read the same book. Our perspectives and reactions are all influenced and informed by the points of view we bring to a particular issue. This is especially true of commissioners at the CPSC who bring a wealth of experiences to the agency and whose outlooks are influenced by those experiences.
My former colleague and good friend, former Commissioner Anne Northup, and I did not always initially agree on various issues that we were confronted with. But because of mutual respect for the other’s point of view, we were usually able to find common ground on most issues. Even when we differed in approach or outcome, those differences provided opportunity for healthy debate and persuasion, which is the point of regulatory commissions.
One example of this was the commission’s approach to regulating small powerful magnets. Former Commissioner Northup and I approached the issue from very different perspectives. Commissioner Northup voted to bring an administrative action to force a recall of Buckyballs, the brand name of the most popular magnets sold as an adult desk toy. Like all commissioners (myself included) she was very concerned about the number of injuries to children who swallowed the small magnetic balls. She saw this as a product that was attractive to children and so, should be regulated as a toy.
My approach was different. I was concerned by the fact that the product seller had gone to extraordinary lengths to market the product as an adult product. I was unsatisfied with the commission’s view that it is appropriate to ban a product that is being safety used by its intended audience when unintended users are being harmed through misuse of the product. I was concerned that the administrative action the commission undertook was tantamount to backdoor rulemaking and that if the commission wished to regulate this product it should do so directly. Finally, I objected to the agency’s approach to contact retailers informally asking them to pull the product (thereby destroying its market without any kind of due process) rather than go to court to seek an injunction against the sale of the product during the pendency of the lawsuit (as the law allows). Former Commission Northup shared this last concern.
Former Commissioner Northup recently wrote an opinion article that describes her reactions to the recent settlement of the CPSC’s administrative suit against Buckyballs. Her article is worth reading. Like me, she is most disappointed that the agency staff, presumably with the acquiescence of the Chairman, expanded the scope of the lawsuit to include one of the company’s principals as a party in his personal capacity. This unprecedented action was never put to a vote and, hence, was not done by agreement of the commission.
While Anne and I did not agree on the merits of whether this case should have been started, we do agree that it soon badly went off the tracks. And I cannot find anything but agreement when she concludes that “collaboration with manufacturers and retailers is a faster and fairer way to protect the public…” Unfortunately, this is a lesson that I do not think the agency has yet learned.