The Use and Abuse of Voluntary Consensus Standards

The CPSC has issued several recent rules about nursery products, each of which was based on a voluntary consensus standard. Congress directed us to do so in § 104 of the Consumer Product Safety Improvement Act, and also wrote special procedures for the voluntary consensus standards under that section. Unlike most voluntary standards—which the agency relies on frequently, without enacting mandatory federal rules—Congress gave the agency the power to modify those voluntary consensus standards as necessary to reduce a risk of injury. The Commission just last week approved a new rule on bassinets and cradles under the § 104 rubric. Although I agreed with my colleagues about most of the rule, one key change made by the staff to the voluntary standard did not appear necessary—in light of all the real-world evidence presented to the Commission. Therefore, I proposed an amendment that would have adopted the standard without that change.

The agency’s staff proposed to adopt a test criterion that differed only slightly from the version in the voluntary consensus standard. (You can read more about the change in my official statement here.) If the change were necessary to advance safety, I could have supported it. If the change made a real and substantial improvement to safety, I could have supported it. But in the end, I didn’t see evidence that supported the change. And as I read § 104, that means that the agency cannot and should not adopt a rule that changes the voluntary consensus standard.

Why not? All federal agencies are supposed to use voluntary consensus standards where possible, because they are likely to increase standardization, encourage long-term economic grown, and save taxpayer funds.  So a general policy in favor of using voluntary consensus standards makes sense. And the CPSC has special reason to hew close to voluntary consensus standards.

In § 104, Congress was not legislating in a vacuum. CPSC is already required to use voluntary consensus standards instead of making up its own rules, so long as the voluntary consensus standard does the job. Section 104 is only meant to change the process so that durable nursery products are covered by enforceable federal standards, because of the special population that uses nursery products—infants. Unfortunately, the way that the CPSC has implemented § 104 has tangled up the voluntary standards process, cutting short debate and perhaps reducing the quality of the draft rules that the Commission gets for its consideration. My amendment would have been a step in the right direction, signaling to standards development organizations that their work product will not be rushed along, nor their debate stymied or stilted, by the CPSC. We should be moving down that path.

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