CPSIA’s Fifth Anniversary

On August 14, 2008, Congress passed and the President signed the Consumer Product Safety Improvement Act (CPSIA). It contained new regulatory authorities and enforcement tools (many of which I suggested to Congress when I served as acting chairman) to make it easier for CPSC to find and recall unsafe products made around the world. Five years ago today, the agency began to follow through on my pledge to implement the law fully and fairly. Unfortunately, as time progressed and the Commission expanded, that has not always been the path the agency has taken.

While CPSIA contained important provisions such as making it illegal to sell recalled products and emphasizing import surveillance, it also contained provisions with little foundation in science. For example, lead limits were arbitrarily drawn and made retroactive so that products safe on store shelves, or even children’s books on library shelves, were safe one day and suddenly unsafe the next day, confusing the consumer and the marketplace. Incongruously, the lead content of a screw on the back of a children’s night table that will never be touched by a child was treated the same as the lead content of a toy frequently handled and mouthed by that child. While CPSIA did give the agency some authority to determine the lowest lead content level in children’s products, here, as in other instances, the Commission chose to over read the statute, even when staff indicated any safety benefit of further lowering the limit was minimal.

While some tout the fact that CPSC passed rules requiring third-party testing and continuous testing of children’s products, omitted is any mention of the unnecessary burden from testing that goes beyond what is required for safety (and required by the statute). Even Congress realized the economic burden of testing was having serious unintended consequences and therefore directed the agency to review opportunities to reduce the cost of such testing consistent with assuring compliance with safety rules. Again, the Commission effectively ignored the consequences and, in a shocking disregard for Congressional direction, indicated it would address such burdens when it could get around to it.

Consumer safety has been and will always be the core of our agency’s mission. As stewards of taxpayers’ resources, we are also obligated to achieve consumer safety in ways that impose the least burden necessary on taxpayers and the economy. It’s not consistent with either the law or our obligation as public servants to regulate excessively or without regard to appropriate limits.

We all agree something like CPSIA was needed to improve the agency’s effectiveness. Nonetheless, we should regulate with no heavier a hand than necessary to reduce unreasonable risks to consumers. Over the past four years, the CPSC has not done that. CPSIA implementation could have been equally effective, but at a lesser cost. That is one lesson that is being conveniently forgotten as we reflect on the law’s impact.

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