For fly fishermen, paradise has to be defined as casting for salmon in the pristine rivers and “loughs” of Ireland. As a novice angler, I got a taste of paradise this past week when I tried my hand “dapping” for salmon in a beautiful but utterly remote area of Connemara in western Ireland. (The salmon were quite safe while I was in the river.) At a totally-off-the-beaten-track fishing lodge, I meet an American couple who were also seeking a quiet corner of paradise. As we talked, they told me they had sold their business and were taking a bit of time to decompress. That is when reality came creeping in.
Archive for July, 2014
Former long-time CPSCer and agency executive director Patsy Semple used to regularly remind the staff to “not throw the baby out with the bathwater.” In other words, do not, through excessive zeal, eliminate the good while working to eliminate the bad.
Patsy’s admonishment came to mind when, earlier this week, I read an excellent article by Lee Bishop, a very well-respected practitioner, in the Product Safety Letter. Here is a link to the article.
Using CPSC published statistics, Lee notes that the number of voluntary Section 15(b) reports (required when a company has reason to believe a substantial product hazard may exist) resulting in a recall has dropped dramatically in 2013 compared to earlier years. Because these reports are what usually triggers a recall, it is no surprise that the number of recalls has also gone down. Lee catalogues recent agency policy changes that, taken together, have resulted in a more punitive posture on the part of the CPSC. As a result, rather than following the agency advice of “when in doubt, report,” more companies are being cautious about reporting to the agency for fear that a marginal safety issue may be turned by the agency into a big enforcement headache. Lee concludes that the statistics suggest “more companies appear willing to take the risk of a penalty for late or non-reporting for marginal safety issues over the second-guessing and punitive treatment that are now routine for companies that turn themselves in and volunteer to conduct recalls.”
As one seasoned CPSC staffer told me at a recent event, the focus of the agency is more on finding violations and seeking penalties than on trying to work with product sellers to solve safety problems. This is a short-sighted approach that ignores the fact that product safety can best be achieved when regulators and product sellers work collaboratively to address problems. It is time for the agency to start paying more attention to the baby and less to the bathwater.
Tags: burden reduction, CPSC, lab variability, Testing Rule
This week I had the pleasure of speaking to the leadership and staff of the American Association for Laboratory Accreditation. The association accredits third party testing laboratories to a wide range of standards including, but not limited to those issued by the CPSC. My presentation was an opportunity to discuss how the agency has implemented the CPSIA with a special focus on the agency’s testing requirements. However, this was also an opportunity to have a free-wheeling conversation about the role that testing and testing laboratories play, and should play, in product safety.
I asked these experts whether third party testing of children’s products was the most effective way in all cases to assure regulatory compliance. Interestingly, these representative of the testing laboratories agreed that while third party testing is the most expensive compliance tool, it is not always the most effective tool. They pointed to the EPA’s green appliance regulations as an example of an effective regulatory regime that does not mandate third party testing. They pointed to NIST’s accreditation of first, second and third party testing laboratories to make the point that it is possible to oversee the integrity of in-house testing.
I pointed to the rule to require warning labels on slings—cloth infant carriers—that the agency plans to proposed next week, asking whether sending slings to a third party testing laboratory to “test” whether the label was correct was an efficient use of resources. While the audible answer was “probably not”, judging by the body language of the folks in the room, the real answer was “are you kidding me?!”
I asked these experts about whether testing variability occurs among different labs or within the same lab. The answer I got was “Of course it exists. Everyone knows that.” Apparently, everyone but the CPSC. This is an issue I tried to get the agency to address when I was a Commissioner but agency leadership was steadfast in refusing to even see lab variability as an issue.
We talked about the feasibility of laboratories discounting prices to small businesses who are suffering mightily under the burden of CPSC-required testing. Commissioner Adler has suggested that laboratories do that since the testing requirements of the law and the CPSC regulations have provided laboratories with such a business windfall. The conclusion of these experts was that this is not a workable option for a wide variety of reasons.
However, we did talk at some length about the role testing laboratories could play in assuring that testing resources are directed at those products that pose the greatest risk and are not wasted on unnecessary testing. I challenged the industry to participate constructively in suggesting ways to reduce testing burdens beyond the rather unimaginative actions now being taken by the CPSC. While the industry may experience some short-terms gains by a system that requires excessive and burdensome third party testing, everyone, including testing laboratories, benefits from a system that deploys resources efficiently and reduces the costs that product sellers (and consumers) pay to assure safety in the marketplace.