Archive for March, 2013

Durable Overreach

sitcYesterday, the CPSC proposed a rule for soft infant and toddler carriers. The rule uses § 104 of the Consumer Product Safety Improvement Act, which requires us to take the voluntary standards from bodies that include representatives from industry, consumer groups, and government and make those standards mandatory. I voted against this NPR because I believe it exceeds our authority under § 104 and because our data does not demonstrate that soft carriers demand regulation.

First, these carriers don’t fit § 104, which tells us to regulate “durable infant or toddler products.” The Department of Commerce has an oft-cited definition of durable goods: those with “an average life of at least three years.” But based on our data, most parents don’t use these carriers past a child’s first year, and less than a third in use are second-hand. This is not surprising since these items are generally low-priced—some sell for as little as $20. So, in general, soft carriers are not durable within a generally accepted definition. To regulate soft carriers under § 104, we would have to presume Congress meant nothing by “durable.” But that is not how we normally read statutes, and ignoring the word essentially amends the statute, something we cannot do. Since I believe this rule exceeds our authority under § 104, I cannot support it.

Second, the data on soft carriers does not show that they pose an unreasonable risk of injury, the test we would have to apply to regulate them outside of § 104. Per our staff’s estimates, 2.6 million carriers are in use each year and 108 children are injured while using them, an injury rate of 0.004%. Other products we’ve regulated under § 104 include play yards and hard-sided carrier, with injury rates that are 10 to 100 times higher. Further, about 65% of estimated injuries come when the adult wearing the carrier falls, and tripping is a hazard we cannot regulate away.

I don’t want to diminish the effects of any injuries—we must view them through the lens of our obligations. We are to regulate unreasonable risks, not every risk, and we have to work judiciously. That means putting our resources where they can do the most good for the most people. This rule does not fit that model.

A Precautionary Tale

Over the weekend, I was having coffee with a long-time friend who told me about her daughter, a young woman in her early twenties who recently had her first baby. This new mother—with no college degree and a job that pays just above minimum wage—has very limited financial resources available to support her family. So, she regularly shops at second-hand stores, consignment shops, and the local Goodwill Store. Just before the baby was born, she went out to purchase a crib. She quickly realized that she could not afford the many hundreds of dollars needed to buy a new crib, so she started to scour the second-hand market. Her search came up empty.

I had to tell my friend that her daughter could not find a second-hand crib because the CPSC basically outlawed selling them. The CPSC has put in place a new safety standard for cribs and, by the law’s terms, all cribs, regardless of when they were made or where they are sold, must meet these new standards. Because the standard is fairly new, cribs meeting the new standard have not yet cycled down to the resale market. And because of the standard, the new cribs are quite expensive, so they will probably be used for a long time before they are available to be bought second-hand. Therefore, those consumers who count on the resale market for their basic needs—such as a crib—are out of luck.

My friend told me that her daughter ended up spending $25 to buy a used play yard as a substitute for the crib she could not find. One of its sides is broken but it has been mended with a metal rod and tape. Since she cannot afford a new crib, she’s trying to make do with the play yard until her child can move into a toddler bed. Other parents who can’t afford new cribs and can’t find second-hand ones might instead have their infants sleep next to them in an adult bed, which is at least as hazardous as the risks we were trying to address in our crib regulation.

This conversation led me to wonder if we as Commissioners are doing as much as we should to consider the full consequences of our decisions. Of course, those who rely on the second-hand market should be just as protected from unsafe products as those who buy new at retail, but we declared anything but the newest cribs unsafe, when that wasn’t the case. At least some older cribs were safe even if they hadn’t had the level of testing the new rule required. Even some of the unsafe drop-side cribs could be made safe with retrofits, but we didn’t leave that option.

Most of our actions involve taking away choices, either directly or indirectly. Sometimes, that’s exactly what should happen, when the choices are ones that unreasonably harm consumers. But, as the situation my friend’s daughter faced demonstrates, we have to be careful not to take away so many that all we leave are even worse choices.

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.

Importing Good Ideas

Over the past couple weeks, my staff and I have had several opportunities to engage with manufacturers, importers, laboratories, safety experts, and our domestic and international peers. I like to attend these programs because I always walk away with a broader understanding of how our actions are working in the real world and how we can improve.

I could overflow this space with observations and insights from all our stakeholders. One takeaway from a meeting I recently attended that I believe is especially worth highlighting is the success of our cooperation with our colleagues at U.S. Customs and Border Patrol, and how that joint effort is enhanced by CBP’s importer outreach programs. I would like to see CPSC take a look at what our peer agencies are doing and see what lessons we can learn to improve our own interactions with the regulated community.

For example, CBP is developing a “one-stop shop” approach for importers to make the customs clearing process more accessible and efficient. This program uses teams co-located in subject-specific centers to work with importers at multiple ports, rather than sending them to a different contact at each port. In addition to providing consistent advice, this also helps CBP staff identify good citizens and bad actors more quickly to help focus resources on the areas of greatest need.

I would like to see CPSC refocus its efforts to make compliance less of a guessing game (which includes making sure the rules are readable for non-lawyers), so that the companies who make and sell safe products can do so with minimal distraction from their actual business. We need to do some hard work so that our regulatory climate is one in which companies feel comfortable asking questions and reaching out to us before molehills grow into mountains. And when problems are identified, we must be willing to roll up our sleeves and do the hard work involved in finding workable solutions.

Moreover, particularly during the lingering budget uncertainty, we need to be more diligent about focusing on real risk. We should focus our limited resources on willfully violative companies, inherently dangerous products, and vulnerable populations, not on minor filing mistakes. Pure paperwork violations—due more often to confusing rules than to bad intent— might need correction, but they simply don’t require the same attention. Every dollar we spend checking off forms is one we can’t spend spotting real unreasonable risks of harm.

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