Archive for the 'Harm Reduction' Category

Retailer Reporting: Something for Nothing?

Over ten years ago, the CPSC compliance staff negotiated an agreement with Wal-Mart that has grown over the years into what is now known as the retailer reporting policy. Under the agreement, Wal-Mart agreed to file weekly reports with the CPSC documenting safety issues reported to its stores about products it sold. This reporting gave the agency important insights into the range of safety issues the world’s largest retailer was seeing. It allowed the agency to get an early heads-up on potential safety issues before they matured into “substantial product hazards.” And Wal-Mart got some protection from allegations that it had failed to report substantial product hazards to the agency.

Because this was such a win-win for both the agency and the company, other large retailers and then several large manufacturers soon began asking to participate in the program as well. In response, the agency expanded the program over the years. However, several years ago, the retailer reporting program was put on hold.

The agency staff has now decided to revise the program. Only selected companies will be “invited” to participate. The revised program makes very clear that participation in the program does not provide a substitute for or otherwise impact any reporting requirements under Section 15(b) of the law. However “consideration” may be given to participating companies should they be faced with subsequent enforcement actions for failure to report. The confidentiality protections applying to Information submitted under Section 15(b) of the law would not apply to these reports.

The staff believes that these changes make the program more transparent and answer long-standing questions about how the program operates. That is certainly true. But the changes also raise several other questions as well. For example, the selective nature of the program and the “consideration”, if any, given to participants does raise troubling fairness issues,  A company wishing to participate and frozen out of the program will have little recourse in challenging the decision of some invisible staffer. What kind of consideration will be available to some but not others?

But more basically, the changes raise the question of why any company should bother to participate. When I raised that question, when I was still a Commissioner, the answer I got was “that it is the right thing for companies to do.” Perhaps there are companies who will find the CPSC staff “invitation” irresistible. (I assume that there will be no measure of bullying associated with these invitations.)  However, there may be others who believe that the effort involved and the benefits to be gained are not worth it. In this case the agency will lose out on an important source of information that could help it identify risks as they come up over the horizon.

However, the biggest concern is a process one. The program has been in place for over ten years. Although it was initiated by the staff, it has grown over the years and it has consumed considerable staff resources. Changes of this magnitude should be placed before the Commission for explanation and approval in a public meeting. The program’s role in gathering useful information should be better explained and it should be part of the agency’s annual operating plan. Regardless of what one thinks of the merits of the program and the changes being made, this is something that Commissioners should consider and approve, not delegate to staff.

Advertisements

Debbie Downer Goes to the Super Bowl?

The spectacle that is the super bowl is for some (including me) as much about the ads as it is about football.  On this day after the big game, the morning talk shows offered up various commentators’ lists of the best and worst of those advertisements.  One ad that seemed to show up on everyone’s worst ad list is the “Make Safe Happen” ad sponsored by Nationwide Insurance.  Even one of my heroines, Lenore Iskenazy, in her Free Range Kids blog, tagged it as the worst super bowl ad.

For the benefit of the maybe ten people in the country not watching the super bowl, this ad featured a child musing about all the things he would not be able to do—learn to ride a bike, fly, get married–because he had died in an accident. Was the ad provocative? Yes.  Did it get people’s attention?  By all means.  Did it highlight an important issue that gets only passing attention from many?   It did.  And I believe that Nationwide deserves praise for its courage in running the ad.

As Nationwide points out in its response to the ad’s critics, “preventable injuries around the home are the leading cause of childhood deaths in America.”  As a CPSC commissioner I saw, first-hand and every day, the tragedies caused by accidents in the home that were entirely preventable.  Shining a light on risks such as accidental drowning and tipping furniture serves as a reminder to all of us that accidents often happen in places where we feel the safest—our homes—and can happen in the blink of an eye and when we least expect it. Getting this reminder from a child who has died brings home with real impact the fact that many of the worst accidents happen to our children.

Some may say that the ad somehow suggests that parents who have suffered these tragedies are to blame for not being careful enough or that these accidents point to the need for more governmental involvement in how we raise our children. Not so. The ad sought to build awareness and awareness is the first step in solving a problem that, as parents, we must address in the way that is best for our own families.

§6(b): Get Ready for More “Tweaking”

Rumor has it that the CPSC staff will soon be sending up to the Commission suggestions for “modernizing” the §6(b) regulations (16 CFR 1101) dealing with disclosure oftweak image company and product-specific information. “Modernizing” is a word that covers a lot of ground and it will be instructive to see how the agency staff and commissioners define it.

The §6(b) regulations were written in 1983 and do not, for example, contemplate communication by email—hence the perceived need for modernization. But if the Commission’s recent proposal with respect to voluntary recalls—where significant substantive changes are being proposed under the rubric of “tweaking” an interpretive rule—are any indicator, then interested stakeholders should pay close attention to the proposed §6(b) rule when it comes up for Commission review.

§6(b), along with §15(b) and the voluntary recall process are three legs of the stool that supports a collaborative and cooperative relationship between the Commission and product sellers.  This cooperation, in large part, is what makes the agency as effective as it is.  §15(b) requires submission of information indicating a product hazard, but most companies, up to now, heed the oft-stated advice of “when in doubt, report”, reporting information before, or even absent, the statutory obligation.   This happens because §6(b) protects the disclosure of information that is not fair or accurate.  (Here is a link to an article that discusses the consumer protection aspects of §6(b).) Taken together, the statute provides incentives for companies to give information to the agency earlier than they otherwise would because those companies have the assurance that information about specific products will be used internally but will not be prematurely released to the public, before the agency has determined if there is a problem.  The voluntary recall process compliments this statutory framework by allowing recalls to be made quickly and, in some cases, before there is a determination that a substantial hazard does, in fact, exist.

The important role that §6(b) plays in making the statute work is not appreciated by some within the agency.  That is unfortunate.  If the Commission decides to use this proposed §6(b) modernization rule as an opportunity to make more substantial changes (as it did with the voluntary recall proposed rule), it threatens to further erode the foundation of cooperation that is so vital to an effective CPSC.

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.


Enter your email address to subscribe to my blog and receive notifications of new posts by email.

Join 986 other followers

Archives

RSS CPSC Breaking News & Recent Recalls

  • An error has occurred; the feed is probably down. Try again later.

Nancy's Photos

  • 81,119 visits
Advertisements