Archive for the 'Consumer Product Safety' Category

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?

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:

CPSC Burden Reduction Mantra: “Maybe One of These Years . . .”

An interesting op-ed in last week’s Wall Street Journal pointed to how the regulatory process impedes efforts called for by President Obama, among others, to shore up this country’s infrastructure.  The piece, written by Philip Howard, President of the nonpartisan reform group Common Good, focused on how interminable environmental review can stymy public projects and made several interesting suggestions for change.

As I read Mr. Howard’s article, I could not help but think about how the regulatory process has been used at the CPSC to slow activity, mandated by Congress and required by common sense, to reform the product testing regime dictated by CPSC regulations.  Recall that the testing rules setting the parameters for when products must be tested by independent third party testing labs imposed such impressive costs on the system that Congress told the agency to find ways to reduce those costs.  That was in 2011.  As we head into 2014, the agency has managed to avoid adopting any concrete relief to those who are now required to conduct unnecessary and expensive testing.  The Commission has done this by repeatedly asking for public comment on the same questions over and over again.

Last week the Commissioners met to adopt an operating plan for the rest of FY 2014.  Predictably, the issue of reducing testing burdens came up and, predictably, the Commissioners again punted.  This time, the agency staff was directed to finish their analysis of the public comments on a limited set of suggestions for relief by the end of FY 2014.  A majority of Commissioners rejected the notion of asking Congress for statutory changes suggested by the agency staff to make operation and review of safety processes more efficient.  Clearly, a majority of CPSC Commissioners do not see reducing unnecessary testing burdens as a core duty of the agency.

It is remarkable that for the past three years, product manufacturers have been conducting expensive testing that most (outside of a handful of advocates with a political agenda and several CPSC Commissioners) do not see as necessary to assure the safety that American families rightly expect.  That those families have to shoulder the costs of this added weight to the system seems to be a forgotten fact. I know that I have written about this issue before.  But as a consumer, I am mad.  I am mad that my choices are being limited and that, for example, I cannot buy beloved toys that are safe but are no longer being imported only because of the CPSC testing rules.  I am mad that I have to overpay for safety regulations of questionable value.

Rather than blindly defending regulations that are costing consumers without advancing safety, the CPSC should give them a thanksgiving gift:  how about getting down to work and stopping the procrastination on this.  It is time for big strides, not baby steps.

Changes

Tomorrow, after 8½ years, my term as a member of the Consumer Product Safety Commission ends. It has been quite a ride—smooth at times, bumpy at others, but always interesting.Change I will let others judge my successes and failures, but I have always striven to help the American consumer by ensuring that their products are safe and their options plentiful. It is my deep conviction that this agency does its job best when it works alongside stakeholders, not against them. All sides have valid concerns. All deserve to be heard. As a commissioner and then as acting chairman and then again as a commissioner, I have always tried to work collaboratively with my colleagues and with stakeholders. I am proud of the work that we do here at the CPSC, and I will be more than a little interested to see where the agency goes in the future.

As a matter of fact, more than just staying interested, I plan to stay engaged. (After having been involved with the agency in some way or another for nigh on 30 years, you wouldn’t expect me to just disappear, would you?) I have very much enjoyed writing this blog since I started it in 2009, and I’ll be keeping it up. There will be posts about the CPSC, and perhaps about other subjects like administrative law and regulatory policy. I won’t just be posting because I’m interested—I’ll be posting because all of us who know and work with the CPSC have a responsibility to stay engaged with the agency. Regulators and the regulated (and other interested parties like yours truly) have to keep talking with each other, not going back into our shells, in order to avoid the kind of groupthink that leads to bad decisions or an us-versus-them mentality. So let’s keep the conversation going.

Magnets Hearing: Let Us Hear From You

The CPSC has scheduled a hearing on October 22, 2013, to hear from the public about the pending proposed rule to ban small, powerful magnets. The hearing will take place at the CPSC headquarters in Bethesda, MD. To present oral comments at the meeting, send your request, along with the text of your comments, to cpsc-os@cpsc.gov.  You can find more information through the draft Federal Register notice here. Folks who wish to be heard should contact the agency by October 15th.

This hearing is required by Section 9 of the Consumer Product Safety Act which sets the procedures for the agency to issue many of its safety standards and bans (many of the CPSIA-mandated rules do not require this kind of public input.)

This issue presents troubling and conflicting concerns for the agency.  Obviously, the injuries that occur when toddlers swallow these small powerful magnets are of great concern to us. We have heard from many doctors about the serious nature of these injuries. On the other hand, this product is made and sold for adults, is extremely popular, and is being safety used by those it was intended for. Banning a product because unintended users are being injured through misuse is a serious and fairly novel undertaking for this agency.

This rulemaking also presents some troublesome process issues—issues of the agency’s own making. Separately, the Commission brought an administrative action against manufacturers that refused our request to recall a product that would be covered under the proposed rule. One cannot help but wonder how the rulemaking will impact the administrative litigation—both as a matter of law and as a matter of fact.

These are all important and interesting questions for the Commission to grapple with. I am looking forward to hearing what the public thinks on Oct. 22.

CPSC Safety Academy in Seattle

Last year, the CPSC held its first Safety Academy here in Washington D.C. The agency-sponsored event featured panels of experts, academics, and stakeholders addressing a wide range of issues facing the agency, including flammable fabrics, the 6(b) process, and the testing rule. The event was webcast, and many of the presentations are still available online if you missed them.

The event provided the regulated community, experts, and consumer advocates the opportunity to both learn from and engage with the agency on the important issues the agency has been working on. Educating the public on what we do here at the CPSC is a critical function—especially with the flood of complex rules that have been issued recently–so I am very pleased that we have decided to hold another open educational forum. This year, the CPSC is holding another Safety Academy in Seattle, Washington on September 18, 2013.

I strongly urge anyone on the West Coast who is interested in CPSC issues to attend. If you’d like to participate on a panel, you can e-mail your information and a short abstract to business@cpsc.gov by June 10th.

Focusing on Consumer Protection

This week is National Consumer Protection Week, and I think more than ever we need to focus on how we can best protect consumers against unreasonable risks of harm. Though we have done an admirable job of that over the years (doing things like improving portable generators and improving crib safety), we need to zero in on our priorities, given our limited resources. The sequester cut CPSC’s budget, so we must be sure that we are laser-focused on our mission. We cannot afford to waste resources chasing secondary violations, paperwork slip-ups, and minor infractions. Although they may technically be violations, they often do not pose safety issues. We need to identify where and when there is the greatest risk of harm from a consumer product, and be there to protect the consumer from it.

When There’s No Bang for the Buck

Sometimes what seems like a good idea just doesn’t work out. When that happens, we should admit it and correct course.

As the CPSC and Congress have struggled to try to reduce the number of children drowning, one idea that has not worked is a grant program to spur states to pass particular water safety and swimming pool construction laws. For the past few years, Congress has set aside several million dollars for grants to states and localities that pass certain pool safety laws. Because the CPSC does not administer federal grants like this, we pay the Centers for Disease Control (CDC) to administer this program. As we try for the third year to make this grant program work, we should look at where we stand:

  • Since the beginning of the program, not one state has applied for a grant and not one dollar has been disbursed, despite changes made to improve the program.
  • We will soon have paid CDC almost half a million dollars to administer a grant program with no takers.

Drowning is a safety problem that must be dealt with as effectively as possible. The public resources that have been allocated to an unused grant program could have been, and should be, used to actually address the issue. Trying to encourage states to pass laws by offering them a small, one-time shot of cash does not seem to be the best way to achieve our safety objective.

I suggest that Congress can—and should—find better ways to spend scarce public resources. That means either allowing the Commission greater discretion in using the funds to further pool safety or directing the funds elsewhere.

Why Cost Benefit Analysis Makes Sense

I’m not the only person talking about making federal regulations smarter. As I noted in my Politico piece last week, the Regulatory Accountability Act would make agencies take the costs and benefits of their regulations more seriously before they finalize them. This is something that the CPSC has not done with rules issued under the Consumer Product Safety Improvements Act, because the Act specifically gave the agency the opportunity to opt out of doing cost-benefit analysis.  Happily, one of the chief architects of the CPSIA, Sen. Mark Pryor (D-Ark) has joined with Sen. Rob Portman (R-Ohio) and others to make sure that the CPSC and other agencies do a better job of considering the impact of rules before they issue them. These two senators take to the pages of Politico to discuss the need for a better regulatory process. As they explain:

Employers…say they would like to expand and add jobs, but the regulatory environment has become too uncertain and costly.  Over-regulation now tops the list of ‘most important problems’ faced by small businesses…now is the time to build a more job-friendly regulatory system. This bipartisan blueprint would do just that.

It is unfortunate that the CPSC did not think about minimizing regulatory cost as we busily churned out regulations over the past several years.  Maybe that will now change. 

Read their piece here.

End Government by Guesswork

Regulators need good data to make good policy. As President Obama made clear yesterday in his speech to Congress, it’s important to reform regulations that are “unnecessary[] or too costly.” He demanded that federal agencies “eliminate rules that don’t make sense.”

But over the last two and a half years, the Commission hasn’t taken the time to make sensible rules. Instead, we crystal-balled benefits and ignored costs that we refuse to measure. And since our rules came into effect, costs for consumers have gone up needlessly as companies pass their costs on or leave markets entirely. These results are unnecessary and do not benefit consumers. We could have minimized them by performing cost-benefit analyses. Today, Politico posted my op-ed explaining in more detail why cost-benefit analysis makes for smart regulation and why the CPSC needs to get back to competent, sensible regulating. You can read it here.


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