Published August 15, 2013
On August 14, 2008, Congress passed and the President signed the Consumer Product Safety Improvement Act (CPSIA). It contained new regulatory authorities and enforcement tools (many of which I suggested to Congress when I served as acting chairman) to make it easier for CPSC to find and recall unsafe products made around the world. Five years ago today, the agency began to follow through on my pledge to implement the law fully and fairly. Unfortunately, as time progressed and the Commission expanded, that has not always been the path the agency has taken.
While CPSIA contained important provisions such as making it illegal to sell recalled products and emphasizing import surveillance, it also contained provisions with little foundation in science. For example, lead limits were arbitrarily drawn and made retroactive so that products safe on store shelves, or even children’s books on library shelves, were safe one day and suddenly unsafe the next day, confusing the consumer and the marketplace. Incongruously, the lead content of a screw on the back of a children’s night table that will never be touched by a child was treated the same as the lead content of a toy frequently handled and mouthed by that child. While CPSIA did give the agency some authority to determine the lowest lead content level in children’s products, here, as in other instances, the Commission chose to over read the statute, even when staff indicated any safety benefit of further lowering the limit was minimal.
While some tout the fact that CPSC passed rules requiring third-party testing and continuous testing of children’s products, omitted is any mention of the unnecessary burden from testing that goes beyond what is required for safety (and required by the statute). Even Congress realized the economic burden of testing was having serious unintended consequences and therefore directed the agency to review opportunities to reduce the cost of such testing consistent with assuring compliance with safety rules. Again, the Commission effectively ignored the consequences and, in a shocking disregard for Congressional direction, indicated it would address such burdens when it could get around to it.
Consumer safety has been and will always be the core of our agency’s mission. As stewards of taxpayers’ resources, we are also obligated to achieve consumer safety in ways that impose the least burden necessary on taxpayers and the economy. It’s not consistent with either the law or our obligation as public servants to regulate excessively or without regard to appropriate limits.
We all agree something like CPSIA was needed to improve the agency’s effectiveness. Nonetheless, we should regulate with no heavier a hand than necessary to reduce unreasonable risks to consumers. Over the past four years, the CPSC has not done that. CPSIA implementation could have been equally effective, but at a lesser cost. That is one lesson that is being conveniently forgotten as we reflect on the law’s impact.
Published August 9, 2013
This past week I had the honor and pleasure of addressing the graduating class of the product safety management course at the Cook School of Business at St. Louis University. The program is one of only a few executive education programs focused exclusively on training corporate product safety compliance managers. The graduates were engaged and knowledgeable, but also realistic in understanding the challenges they face in managing the increasingly complex job of successfully integrating safety into a global supply chain in a way that assures compliance with our regulations.
As an exercise, we undertook a mock hearing paralleling the priorities hearing the Commission held several weeks ago. The “student witnesses” testified before me (representing the Commission) about issues to which they believe the agency should be giving increased attention. Their “testimony” was informed by the studies they have been doing over the past several months.
Interestingly to me, what I heard paralleled in many ways the messages we heard from the Commission’s July priorities hearing. While the students had suggestions for specific products that they believe present risks and warrant additional attention, several themes also came through loud and clear. For example, we spent much time talking about the alignment of international standards and the preemption of state standards. In their work back at their companies, they have seen the problems caused by diverse standards all addressing particular risks but in different ways. Additionally, we discussed the sometimes overwhelming challenges that smaller- to medium-sized companies face in trying to understand and comply with rules that they see as unnecessarily confusing. The message was that while safety is a core value, contending with hard-to-understand rules that seem to have requirements that do not necessarily advance safety—while still consuming scarce resources—is hard to justify.
In the end, I found the experience heartening. It is great to see the marketplace—and the education sector—responding to new safety challenges with training to help companies further develop the management processes to assure safety in their companies and products and compliance with the law. Although it may be frustrating to hear more about the difficulties created by poorly crafted, poorly understood rules coming out of the CPSC, one sees dimly the hope of a reinvigorated community of the regulated and the regulators, working together to craft sensible rules that improve safety effectively and reasonably.
CPSC recently held a public hearing to get input from stakeholders about its agenda and priorities for FY 2014 and FY 2015. We heard from two panels of consumer advocates and manufacturers’ associations. Many thought-provoking subjects were discussed. I found the topic of child safety in low-income households, raised by the Consumer Federation of America, to be an important challenge to address, not just at CPSC, but across the federal government. (As I have written before in this blog, some of our current policies risk pricing low-income consumers out of safety.)
Two other topics were particularly noteworthy. The Handmade Toy Alliance (HTA) said that signing up for the “small batch manufacturer” registry—exempting them from certain third-party testing requirements—did not substantially ease their burden. Even though they were technically exempt from third-party testing, HTA’s members still must meet various statutory limits and, crucially, are often unable to do adequate testing without engaging third-party testing labs. Further, HTA pointed out the requirement added by the Commission to post on its website the name of every company that received this exemption was a deterrent to companies to participate and thereby have their business data posted. It is no surprise, then, that although we expected upwards of 30,000 companies to sign up, only about 500 are have so far.
Another issue raised by HTA, as well as the Toy Industry Association (TIA) and the American Apparel & Footwear Association (AAFA), was the need for CPSC to dedicate resources, pursuant to Congress’s direction in Public Law 112-28, to implement measures that reduce testing burdens while still ensuring compliance with safety standards. To date, the Commission has no specific commitment to action in FY 2014 and FY2015 to reduce testing costs. The Commission previously defeated my amendment which would have allowed for more action.
I hope that we will listen to our stakeholders’ pleas—and Congress’s direction—and do the hard work to improve safety for more Americans while minimizing the burden we place on the American economy.
Remember CPSC’s certificates of compliance? In 16 C.F.R. part 1110? Of course you do! If you’re reading this blog, that is, you should, because I wrote about the draft update the Commission approved in May and described a number of shortcomings that I saw in the draft and the process leading up to its adoption (including the draft’s excess breadth, the refusal of some of my colleagues to ask pertinent questions of the public, the needless expansion of paperwork requirements, and a few other issues). But I voted for the package because I believe our 1110 rule needs updating, and we needed get the public’s views on how best to do that.
Now we’re coming up on the end of the comment period. The public’s comments are due next Monday, July 29, 2013. If you have something to share with us, now’s the time to speak up. You can file your comments here.
In this day and age, who gets to do their own work and not show it to anyone else before it sees the light of day? Surely there are few who let work product out without someone vetting it. That’s why businesses get third-party auditors. That’s why grade school students show their work, so their teachers can correct them. And that’s why, starting with President Reagan, every president has required executive agencies to submit major rules to the Office of Information and Regulatory Affairs (in the White House Office of Management and Budget) to ensure that the rules are supported by thorough, accurate regulatory impact analyses (of which cost-benefit analyses are a key element). So it shouldn’t be surprising that a bipartisan coalition has begun forming to require independent agencies to do the same thing, which is taking shape in the form of the Independent Agency Regulatory Analysis Act (S. 1173), co-sponsored by Sens. Rob Portman (R–Ohio), Susan Collins (R–Maine), and Mark Warner (D–Virginia). Unfortunately, it also isn’t surprising that some (including some of my colleagues here at the CPSC) see this review as an impediment to regulatory independence. Such was suggested in a recent New York Times editorial. Senator Portman and I responded to those misguided concerns here. In addition, I wrote an op-ed in The Hill newspaper arguing in favor of the bill, which you can read here.
The bill is now pending before the Senate Committee on Homeland Security and Governmental Affairs. Should this idea become law, it would provide a measure of accountability to regulators to better justify the actions they take.
Published July 17, 2013
Participants in our Commission meetings last week saw two new faces on the dais. Ann Marie Buerkle and Marietta Robinson were recently confirmed by the Senate as Commissioners and participated in our meetings last week. Commissioner Buerkle is a nurse, lawyer, and former Member of Congress. Commissioner Robinson is a litigator and trial attorney. Both bring important points of view and experiences to the agency.
I am personally excited to have these new Commissioners as colleagues. Although my remaining time at the Commission is limited, it will be so much more meaningful to share this time with Commissioners Buerkle and Robinson.
Published June 26, 2013
Tags: CPSC, priorities
As our law requires and good regulatory policy suggests, the CPSC holds a public hearing every year on the upcoming year’s budget priorities. It is a great opportunity for the public to tell us what issues we should focus on over the coming year.
Truly, though, looking ahead just one year not enough—the budget and operating plan processes are connected and large tasks, so our staff must begin work on them long before the summer leading up to each new fiscal year (which begins every October 1st). So this year, we’ve decided to do something a little different and ask the public for its priorities concerning both the next fiscal year’s operating plan and the subsequent year’s budget request. This type of long-term planning is commendable. And we need the public’s help. So if you’d like to make a presentation to us at the hearing—or to submit written testimony—you can submit your proposal or comments via this email address, and get more information here. The deadline is July 1st.