Archive for May, 2011

These Shoes Are Made for Regulating

We have posted more than a thousand complaints so far to the public database since it was launched two months ago.  At this rate we will have more than 6,000 reports after a year of operation.  It’s a fact that the agency investigates less than 10% of the reports that are received, and there is no obligation to publish the results of those investigations, unless that investigation results in a recall.  That raises the question of the validity of the overwhelming majority of the reports on the database.  Some may well be valid and others are not.  We include at the bottom of the database pages a disclaimer that the CPSC does not attest to the accuracy of the database’s information. So what stock should consumers place in the information in the public database? 

To try to answer this question, I did a search of the generic category for “shoes,” then focused on toning shoes   I found reports of people complaining of sore muscles from walking in toning shoes.  I found people complaining of tripping, apparently because of these shoes.  I found a complaint of sore feet after working out in these shoes.  

My concern, and the reason I raise this example, is that it would be most unfortunate if these complaints were to divert the agency’s attention away from high priority hazards to deal with things like toning shoes.  I hope that the agency has sufficient discipline to keep its focus on truly unsafe products.  If we do not have that discipline, then high-heel wearers beware:  We all know that 4-inch spikes are dangerous and should be banned.

Spinning Our Wheels When it Comes to Bikes

Recently, the Commission voted to adopt amendments to the outdated bicycle regulations (16 CFR 1512) issued decades ago.  These technical amendments were needed to facilitate the testing and certification requirements of the CPSIA as they apply to bikes.  Among other things, these amendments read out of portions of the regulations certain bikes used by professional racers and recumbent bikes that are becoming more popular among some riders. 

This vote is of note because it again presents the issue of what regulations are “children’s product safety rules” and, therefore, require third party testing for the products regulated under them.  The Commission had the opportunity to give some clarity to this issue but, unfortunately, chose to forgo the opportunity and kicked the can down the road. 

The bicycle regulations were issued under the authority of the Federal Hazardous Substances Act (FHSA) in the mid-1970’s.  The FHSA is used to regulate mechanical and other hazards to children.  Because, back in the 1970’s, it was difficult to define the difference between children’s and adult bikes, all bikes were regulated under the FHSA as children’s products.  With the passage of the CPSIA, which requires certifications of compliance for regulated products and third party testing for children’s products – that is products primarily for children 12 and under – the regulatory regime for bikes becomes more complicated.  Why? Because CPSIA makes a distinction between children’s products and adult products but the bike regulation does not.

Since bikes are being regulated as children’s products under the FHSA, one could conclude that all bikes need to be tested by a third party lab.  But, of course, that is a silly result since we know that not all bikes are for children.  Given the CPSIA’s definition of “children’s product” it should be easier to distinguish between a child’s bike and an adult’s bike (and, indeed, we have done that for purposes of lead testing).  Should “adult” bikes, however they are defined, be subject only to the certification requirement or perhaps these “adult” bikes are not subject to the current bike regulations at all, since they are not children’s products.  What was once a simple regulation has now become a convoluted quagmire, thanks to the arbitrariness of the CPSIA, with its absolute third party testing requirement. 

Our excellent staff understands that these and other issues are presented by the intersection between the FHSA and the CPSIA.  They took a first step by proposing technical amendments to the bike regulation exempting from parts of the standard bikes used in velodromes and recumbent bikes.  I proposed language for the preamble of the regulation acknowledging the issue of defining what is an adult bike and a children’s bike.  I am both sorry and perplexed by my majority colleagues’ refusal to include this simple language acknowledging that we have a problem that needs to be fixed. 

On a related issue, while the testing requirement for bike reflectors is now in place, there are no labs accredited to perform the test.  Therefore, I am pleased that the majority did agree with my request that we reinstate a stay of enforcement on third party testing for bike reflectors.  (Such a stay expired in November 2010.)  Without this reinstatement of the stay, we are left with an awkward and messy regulatory situation.  Though the reflector testing problem is temporarily addressed, what is an adult bike and when, if ever, an adult bike is required to be tested and by whom, remains unclear.

Logjam Broken?

 I am glad to see that the House Subcommittee on Commerce, Manufacturing and Trade voted today to support a bill to enhance CPSC’s authorities to prioritize based on risk and thereby protect consumers while reducing some of the unintended consequences of the CPSIA. I hope that momentum for some real reform continues to pick up pace.

 Arguments being made against the bill do not stand up to scrutiny. For example, it is said that this bill will do away with third-party testing: not true. Mandatory third-party testing is preserved for the standards that CPSIA listed as priorities (i.e. lead paint, cribs, pacifiers, small parts, lead content in children’s metal jewelry, baby bouncers, walkers, jumpers and other durable nursery goods). In addition, CPSC is allowed to require third-party testing for other standards as it determines is needed for consumer safety, as well as continued compliance testing. The point is that the expert agency will decide what testing makes the most sense.

 It is said that this bill creates “common toy box” problems, i.e. children playing with older children’s toys. If the “common toy box” problem is the concern that children will use something beyond their age range, where does this theory stop when the child plays with things throughout the house?

Anyone who has raised children recognizes the silliness of the “common toy box” argument. Most parents remember sitting their baby on the kitchen floor with a pan and metal spoon to bang away with. Of course, the lead in these products – used for cooking and eating – is considerably higher than what is specified in the CPSIA. And parents know that 12-year-olds do not tolerate lightly toddlers getting into their stuff. But more importantly, the common toy box argument does not recognize the long standing practice of this agency to regulate products based on the hazard they pose as determined by the age of the child. For example, we recognize that small parts present a choking hazard to small children but that same hazard is not present for older children. Therefore we ban small parts in toys intended for toddlers. We do not take the position that a common toy box means that small parts are banned in all toys. We look at the risk and then regulate as appropriate. Lead exposure in children’s products should not be treated any differently.

Other arguments being made against the bill also do not stand up to examination. It’s good news that this bill is on its way to full committee consideration. The sooner CPSIA reforms are in place, the sooner CPSC can return to focusing its resources on consumer risks that matter most.

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