When Competing Policies Collide

It is a basic premise of business that good managers do not allow short-range tactics, taken in response to immediate contingencies, to derail long-range strategies. This principle came to mind when I read a story in this week’s BNA Product Safety and Liability Reporter. The story discussed efforts by Wal-Mart Stores Inc. to put in place initiatives to reduce the environmental impact of the products it makes and sells. The story made clear that these efforts by Wal-Mart, and lauded by environmental activists, will be felt throughout the supply chain.

What especially caught my eye was the following portion of the story:

“Wal-Mart’s other environmentally friendly initiatives include:

• working with suppliers to increase the use of recycled content and to make packaging more recyclable. . .”

When I read this, I could not help but think back to the CPSC’s decision back in 2011 mandating the lead content of children’s products not be above 100 parts per million. You will recall that Congress set the limit at 300 ppm but allowed us to lower it to 100 ppm unless that level was not technologically feasible. The Commission decided to require the lower level even though this would drive many manufacturers to substitute more expensive materials in their products and even though our staff could not point to specific safety benefits (higher costs and consumer choice were certainly not factors in our thinking, of course).

However, more to the point, the staff specifically stated that, at the 100 ppm level, recycled materials would not be able to be used in children’s products and that virgin materials would need to be substituted. This is not because recycled materials do not necessarily meet the 100 ppm level, but because the testing we also require would not be predictive of what was actually in the product. In other words, because recycled materials, by their nature, are not necessarily consistent throughout, something could test at 90 ppm in one spot (passing our standard) but test at 120 ppm in another (failing our standard).

It is so unfortunate that the agency made no effort to try to reconcile the competing public policies—public health and environmental sustainability–at work here.  It would not have been hard for us to keep a lead content ceiling in place that was appropriately protective of health and still accommodate the government-wide policy to increase our use of recyclables. Exceptions for certain products that must and should be made out of virgin materials could easily have been integrated into such a policy. The commission clearly had, and has, the authority to do this, but in its regulatory exuberance, short-term reactive thinking trumped long-term creative problem solving.

So, kudos to Wal-Mart and other companies for their efforts to find environmentally friendly ways to make and sell products. It’s too bad that we have put up an unnecessary hurdle to that effort. Instead we could have come up with a solution that would have reconciled the important public policies of health and environmental stewardship. I wish we would have at least tried.

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1 Response to “When Competing Policies Collide”



  1. 1 Environmental roundup - Overlawyered Trackback on October 11, 2013 at 12:30 am

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