Archive for December, 2013

Play at Your Own Risk

NO

Recently I was up in New York and met with two insightful and smart people I want to introduce if you do not already know them.

Phillip Howard is a lawyer, civic activist and the founder of an interesting organization, Common Good.  Part of the mission of the organization is to get back to a place where citizens can take responsibility for making sensible choices:  “Making choices for the common good is impossible if everyone is tied up in red tape. Reclaiming responsibility requires a basic shift—where law sets boundaries for free choice instead of dictating choices for the lowest common denominator. . .Common Good has developed practical solutions to bring reliability and balance to law in healthcare, education, and civil justice, as well as in areas such as children’s play. . .”.  With respect to this last item, the concern is that if all risk is taken out of play, our children will not be prepared for the risks that life inevitably throws at them as they mature.

This brings me to the second person I want to introduce—Lenore Skenazy.  Lenore is a journalist, mother, and the creator of Free Range Kids.  The (tongue-in-cheek) purpose of Free Range Kids is to fight “the belief that our children are in constant danger from creeps, kidnapping, germs, grades, flashers, frustration, failure, baby snatchers, bugs, bullies, men, sleepovers and/or the perils of a non-organic grape.” While Lenore’s writings are amusing, she does make the serious point that when the line between real and speculative risk becomes so blurred—which she contends is happening more and more—our children suffer as a result.

From my perspective as a former CPSC Commissioner, I do fear that the agency, when it is regulating, too often discounts the importance of personal responsibility on the part of consumers.  The result are regulations that try to address every possible risk, real or imagined, rather than actual risks that real-world data and science have demonstrated need addressing.   Imaging the worst-case scenario all the time cabins in our kids but gives government regulators a very wide swath indeed.

Finding the Needle in that Haystack

needleinahaystack1.1Anyone who has tried to use the CPSC website knows that finding information there is no easy task. When I was a commissioner I would get regular calls from the public asking for help in locating public documents that were on the site but buried in sub-directories and illogical places.

Therefore, I am pleased that a law firm has taken on the helpful task of making some sense out of the agency’s website. You can find the “CPSC Navigator” at www.CPSCNavigator.com. While it is unfortunate that an agency that regularly talks about “transparency” makes it so difficult to find important information, I am glad that the private sector has stepped up to the challenge that the agency’s opaqueness presents.

Fixing Non-Problems, Take 2

Yesterday I directed your attention to an article by the former general counsel of the CPSC pointing out the legal and policy issues in the agency’s proposed rule revamping the requirements of the voluntary recall process.  She is not the only former senior manager of the agency to weigh in on the proposal.  Matt Howsare, former Chairman Tennenbaum’s chief of staff, has also discussed the serious issues inherent in the agency’s proposed approach.

I think that it is significant that two former senior agency staffers—one a career staffer and the other a political appointee of the majority party–are rejecting the notion that the proposal is merely a “tweak” of the process, as has been claimed by some commissioners, and instead characterize the proposal as a major overhaul of the voluntary recall process.  The agency leadership’s insistence on fixing what isn’t broken is very curious–and ominous–indeed.

Fixing Non-Problems; Creating New Ones

In an exercise that exemplifies a solution in search of a problem, the CPSC has proposed an interpretive rule that sets requirements for voluntary recalls.  I have questioned the wisdom of this activity on several occasions (see here and here).

I wanted to flag for readers an excellent analysis of the proposal written by the CPSC’s former general counsel, Cheryl Falvey. During her four year tenure at the CPSC, Ms. Falvey was a career employee, rather than a political appointee.  She understood the need to represent the Commission, not Commissioners.  She has laid out some of the practical concerns of the voluntary recall proposal in a very detailed and compelling manner.

With no evidence that the process is not now working, the Commission proposes requirements that may well make the voluntary recall process certainly less flexible and, most certainly, more adversarial.  Such a result would erode the trust that has been build up over the past 30 years as the agency and product sellers have worked cooperatively to make the marketplace safer for consumers. Public comments on this proposal are due February 4, 2014.


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