Ready…Fire…Aim (2)

Yesterday, I talked about how the final rule for testing and certification will be up for Commission vote shortly. This, in spite of directions from President Obama and Congress, our staff’s opinion, and the common sense judgment that we should pause and consider the costs and benefits of the testing rule. This rushed timetable and the contents of the draft final rule were decided by the majority, in defiance of those express concerns. 

I said that we should take a risk-differentiated approach, tailoring the requirements of the rule to risk so that it will make a difference in safety, not just increase cost. Today, I want to talk about another major piece of the testing rule that troubles me—the setting of “reasonable testing program” requirements for all products (not just children’s products). The law requires that manufacturers of non-children’s products use reasonable testing programs for their safety and compliance obligations.  The law neither defines the features of a reasonable testing program, nor requires us to do so in rulemaking. This makes sense. The pending proposal would change that, issuing detailed requirements for a reasonable testing program and—similar to many of our recent actions—apply those requirements “one size fits all.” It’s a step we don’t have to and shouldn’t take, for several reasons.

  • Including reasonable testing program requirements in the current testing rule is unnecessary and further complicates an already complicated regulation.
  • It is irrational to suggest that a reasonable testing program is the same for every product and irresponsible to cement that program in regulations that have the force of law.
  • Companies can tailor their compliance testing programs to be effective for particular products. There are plenty of best practices sources they can lean on, including guidance from our own talented employees.
  • Companies always have the obligation to meet statutory requirements, whether that is for lead content, phthalates, flammability, or any other requirement.

Defining a reasonable testing program through regulation is unnecessary, ineffective, and an irresponsible use of our safety resources. The provisions defining a reasonable testing program should come out of the rule.

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