Archive for February, 2011

RECALL vs. WARNING: What’s in a Name?

An interesting debate has been going on inside the agency over an issue that many people outside the agency might think is merely semantics.  The issue is when the agency is warning the public about a product, why do we insist on calling that warning a recall?  A recall suggests to most people that some concrete corrective action will be taken—the options the statute gives us for corrective action are repair, replacement or refund.  However, a warning involves none of these.  In one recent action, we put out a unilateral warning to the public about a product but called that warning a recall.  In another, we negotiated a voluntary “recall” of a product that consisted of allowing consumers to contact the company to get a warning label, if they wish to have one. 

In the first instance, involving falling stadium light poles, we issued a “recall to repair.”  However, as the last paragraph of the press release notes, the owner of the light pole is advised to have the repair done themselves since the company is out of business—in other words, no recall at all.  My concern is that the use of the term “recall” suggests that someone out there—presumably the company selling the product—has the responsibility for correcting the problem.  In the light pole case, this was not true and people could well have been confused or mislead by our press release. 

In the second case, we faced a hazard—babies strangling when products with cords are placed too close to a crib—that exists across product lines.  That hazard is not unique to a particular product.  Tragically, two infants recently died when they strangled on the cords of a popular video monitor.  In response to these deaths, the agency undertook discussions with the company about the appropriate way to address this risk.  The company eventually agreed to issue a “recall” to, among other things, provide consumers with a warning label that could be affixed to the product.  It is my understanding that very few consumers have taken advange of this “recall” and that a number who, upon hearing of a recall affecting their product and believing that there was some electrical or mechanical defect with the product, became quite annoyed when they learned that the recall was to give them the opportunity to get a warning label.  I wonder whether consumers would be better served by a thoughtful, aggressive educational campaign about the dangers of cords in a nursery rather than a “recall” of a specific product for a “remedy” that is of questionable value. 

The reason I was given for labeling everything involving a specific product as a recall is that this is the only way to get media attention—unless we call it a recall, no one will pay attention to us.  I question that premise.  I did a quick survey of some reporters who assured me that they were quite capable of parsing through our press releases and making their own decisions about what to cover and that our labels did not impact that process.  But for those owners of defective stadium light poles for whom the recall has no meaning and for those consumers rightly annoyed by a government recall so that they can get a label, they have to wonder is this the best that the government they are paying for can do.

Collateral Damage Spreading

Last week’s hearing before the House Subcommittee on Commerce, Manufacturing and Trade was the beginning of a long overdue, open and public conversation about the need to bring some safety common sense to the CPSIA.  At the hearing we heard from small and medium sized businesses about the challenges they face in making and selling safe products while trying to run the obstacle course set up by the law.  For those of us who have been working first hand with this law, these stories are not new – unfortunately, we have been hearing them for almost three years now.  The list of safe products no longer available to consumers continues to grow, as does the list of those who have lost their livelihood because of this law. 

However what has not been so apparent is the collateral damage being done by the CPSIA.  I recently wrote about a father who was stymied by the CPSIA in his efforts to raise money for juvenile diabetes research by collecting and selling used children’s jeans.  In spite of some confused statements at the hearing last week, charities which donate or sell used children’s products and clothing are adversely impacted by this law. 

Now we hear that Mothering Magazine is ceasing its print publication after a proud 35 year history.  According to the magazine: Many of our advertisers have been hard hit by the economy. Toy manufacturers have been burdened by the cost of complying with the new regulations of the Consumer Product Safety Improvement Act (CPSIA). Many of our sling and baby-carrier advertisers experienced declining sales or went out of business altogether in 2010 as a result of loss of sales due to the Consumer Product Safety Commission (CPSC) recalls of infant carriers.”

Libraries, schools and day care providers also are among the countless groups and organizations that also have to navigate the challenges of the CPSIA.  The agency has asked for more flexibility and I hope that Congress listens.  In the meantime, the collateral damage from this law spreads.

Health Benefits in Check

Last week I received a letter from a father of a child with juvenile diabetes who told me of his efforts to raise money to support scientific research to prevent this terrible childhood disease.  I will leave it to you to reach your own conclusions as to whether public health is benefited from his experience:

“Commissioner Nord:

I have learned of the controversy surrounding the Consumer Product Safety laws regarding lead in children’s products.  I wanted to bring to your attention a plan I had been developing to collect and market used denim jeans, with the proceeds to benefit the Juvenile Diabetes Research Foundation (JDRF).  I have now learned that my planned sale of used denim jeans would be in violation of Consumer Product Safety laws as they relate to lead.  I have therefore, halted all efforts to develop this charitable plan.

[Using] girl and boy scouts and local young people interested in community service, we…expected to raise several thousand dollars for the JDRF.  Not huge sums of money -but denim jeans are a “renewable” resource.  If successful, this effort could be renewed regularly in the same or different areas, communities and cities.  The garments would be recycled (always a plus) and the JDRF, and other charities could financially benefit.  It appeared to me to be a “win” for everybody. 

Unfortunately, what I assume are unintended consequences have conspired to deny me the opportunity to make this effort.  While it baffles me how this prohibition can be realistically justified, I respect that it is the law and I will of course, make no attempt to pursue this charitable endeavor…”.

In a world of scarce resources, we have to be smart about the requirements that are imposed on the public. I question whether the health benefit, if any, from prohibiting sale of used kids jeans offset those flowing from efforts like that described above but which do not pass muster under CPSIA.

Our FY 2012 Budget: How Much and How to Spend

The President’s budget, submitted to Congress today, contains a request for $122 million to fund the CPSC.  I voted to support this funding request, but with reservations. In a statement posted today I outline some of my concerns over how the agency proposes to spend these requested funds. 

Congress gave the CPSC a huge task when it enacted the CPSIA.  Although the law gave the agency important needed enforcement tools, it also changed a regulatory system that was, for the most part, working well to assure that regulations, once issued, were based on science and with an eye to minimizing the economic impact on those being regulated while achieving a true safety goal.  The CPSIA changed that equation and we are now pushing out regulations with little knowledge of their economic or safety impact.  To the extent that the agency has any flexibility to change that result, we should.  Therefore, I am disappointed that the majority again this year rejected my request that the budget allocate resources to do cost benefit analysis when we are regulating under the CPSIA. 

The public database also requires a large allocation of funds under the 2012 budget.  As I have argued before, there is a real question as to the safety payback of this very expensive undertaking as it is currently structured.  In a time of scarce resources, we have an obligation to use public resources to assure that our safety mission is carried out in the most cost-effective manner possible.  I question whether using tax dollars to set up a competitor to “” with a government imprimatur is the best use of scarce resources.

I have other concerns with our budget.  However, my bottom line is that if Congress wishes us to undertake the activities they have given us, then they must provide appropriate resources.  Our obligation is to use these resources in the best possible way to carry out our mandate.

How Low Can We Go?

We have another big CPSIA decision looming on the horizon and therefore need your input and participation.

CPSIA provides that, as of August 14, 2011, children’s products may not contain more than 100 parts per million (ppm) of lead unless the Commission determines that such a limit is not technologically feasible.  The Commission may make this determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products.

A hearing is scheduled for Wednesday, February 16th.   In order for me to act from an educated perspective, I need the evidence and data the public supplies, along with staff analysis.  I invite you to speak up and tell us how this lower lead limit will effect you. For details about participating, please refer to the Federal Register notice.  The deadline to sign up to present your remarks in person is February 10th.  You may also submit written comments and watch on webcast.

Last July, we solicited comments and information about manufacturers’ ability to meet the 100 ppm standard. Some commenters stated that source materials, including recycled materials for metal alloys, cannot comply consistently due to the variability of the materials and that plastics could comply only if  virgin plastics are used.  We heard about significant variability among test results due to variations in testing methodology and procedures.  Several people stated there were not demonstrable health effects reducing lead limits from 300 ppm to 100 ppm in light of the relative inaccessibility of lead that is bound in plastic or metal.  Others said there are children’s products in the market now that meet the 100 ppm lead limit, so that it is not only possible, but essential for public health to meet the lowest levels feasible.

The Federal Register notice outlines issues where staff is seeking new or additional information. Questions that are of particular interest to me include:

  • how do we evaluate whether a product that complies with the lower limit is ‘commercially available’;
  • what factors should be considered in an analysis of the public health protections associated with substantially reducing lead in children’s products, and
  • does consideration of technological feasibility include economic implications?

Before we vote to regulate, it is critically important that the Commission understand the practical and safety implications of lowering the lead levels in children’s products. We need your input so we can make an informed decision.

Lead Testing Stay Extended to December 31

The Commission has now voted (4-1) to extend the stay of enforcement on third party testing for lead content—until December 31, 2011. Although the recommendation before us was to extend the stay until the middle of September, this would have imposed an expensive testing burden on small manufacturers during one of their busiest seasons.

This extension will also give the agency more time to complete the component testing proposed rule and the testing and certification proposed rule. Both these rules need to be in place before the stay of enforcement is lifted. While I would have preferred to specifically tie the lifting of the stay to the issuance of these rules, the December date gives everyone—the agency and manufacturers–a bit more time to prepare.

The stay of enforcement does not relieve anyone from complying with the underlying lead regulations. Therefore, consumer safety is not impacted by the agency’s action. Instead we have pushed off for a bit longer this burdensome third-party testing requirement. However, unless Congress changes the law, the testing requirement will go into effect at the end of December.

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