Wanted: Corporate Psychic

§This past week the CPSC voted to publish for public comment a notice of proposed rulemaking to amend long-standing regulations (16 CFR 1101) dealing with psychic-readerinformation disclosure under §6(b) of the Consumer Product Safety Act. The stated rationale for the NPR is to “modernize” regulations written in 1983, and which, by most accounts, have been working well.  Given the opaque nature of the discussion around this NPR, a Ouija board may be a helpful tool as you read through this NPR.

The §6(b) proposed rule is a continuation of the apparent on-going effort of the Commission altering the collaborative partnership that, over many years,  resulted in successful results for consumers—altering it to one that is both more formalistic, rigid and in my view, less protective of consumers.  This effort includes mandating intrusive compliance programs in inappropriate settings, changing the voluntary recall process to add delay and rigidity among other things, and now, proposing to erode important information disclosure protections mandated by Congress and that form the basis for much of the success of the fast track recall program among other things.

Whether the agency has statutory authority to proceed as proposed is questionable but from the stand point of good public policy, there is no question that the agency seems set on a course that could change the balance that has been the hallmark of its success.

To quickly summarize, §6(b) of the statute, with accompanying regulations, states that before the agency can release information it obtains about a product that identifies a manufacturer or private labeler, it must take certain steps to assure that the disclosure is fair and accurate.  The regulations, written in 1983, seem to be working well except that they do not contemplate electronic communications (something that can be easily rectified).  Further, in its briefing to the Commissioners, the staff did not identify in specific terms how the changes would improve efficiencies.  Instead viewers of the briefing were treated to general statements, speculative scenarios and threats to go into executive session so the public could not benefit from the agency reasoning that provided the basis for the proposed rule.

The proposed rule makes a number of changes to the 1983 regulations that go well beyond “modernizing” those rules.  Taken as a whole, the proposal changes the emphasis from the agency having the proactive obligation to act in a careful and deliberate manner.  Instead information–perhaps in response to that pulled from the internet or from the latest (and generally flawed) toxic product hit list or perhaps stale information where context has changed–can go out the door and, only if the company has a psychic on staff, will it know the release is coming or be able to object. But even more important, this seems like an effort to minimize work for the agency without thought to whether consumers get better information or companies must correct inaccurate innuendos.   

The NPR will soon be available in the Federal Register for comment.  Stakeholders who care about this latest attempt to dilute the deliberate balance Congress struck in the Consumer Product Safety Act should read this proposal carefully and give the agency your views.

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