In the Back Room or in the Open…

Where should policy be developed?

Recently, the Commission raised eyebrows around the product safety community by effecting what many see as a broad policy shift through two privately negotiated settlement agreements. Of course, I am referring to the issue of requiring all-inclusive compulsory compliance programs as a condition to settle alleged failure to report violations, using as a justification for this action the existence of past voluntary recalls. This blog is to bring you up to date on the state of play.

First, I had an exchange with my colleagues about our settlement with Kolcraft, where my colleagues insisted on adding the compulsory compliance program language at the last minute after an agreement had been reached between counsel for the company and the agency. I expressed my disagreement with the decision, while my colleagues jointly endorsed it. Second, mere weeks later, we approved a settlement with Williams-Sonoma that included the identical requirement. Though I voted to approve—on the basis that the company was well-represented and agreed of its own will—I still felt uneasy about using the enforcement vehicle for this apparent policy shift, undermining both the efficacy of the settlement and the legitimacy of the policy, which deserves public input. This began an “unusual” back-and-forth with one of my colleagues, with his statement, my supplemental statement, his supplemental statement, my further supplemental statement and so on, with the latest pingpong volley occurring today.

These settlements, the identical language they share, and the emerging policy they represent all demonstrate that this is an important issue. So important, in fact, that it’s a conversation we should be having more publicly and with more participants.

As I have stated many times, I fully support corporate compliance programs. They are one way a company can build a commitment to safety into all of its products. And there may be a role for CPSC in getting more companies to institute compliance programs, but, whatever that role is, it’s one we should play in public. If we are going to require them, we should not do that through privately negotiated settlement agreements but instead should engage the public in the conversation so that we fully understand the implications of this policy.

The whole purpose of a multi-member commission is to make sure various views are heard and rules are the product of engagement and discussion. So, let’s engage and discuss.

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