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These Shoes Are Made for Regulating

We have posted more than a thousand complaints so far to the public database since it was launched two months ago. At this rate we will have more than 6,000 reports after a year of operation. It’s a fact that the agency investigates less than 10% of the reports that are received, and there is no obligation to publish the results of those investigations, unless that investigation results in a recall. That raises the question of the validity of the overwhelming majority of the reports on the database. Some may well be valid and others are not. We include at the bottom of the database pages a disclaimer that the CPSC does not attest to the accuracy of the database’s information. So what stock should consumers place in the information in the public database?

To try to answer this question, I did a search of the generic category for “shoes,” then focused on toning shoes I found reports of people complaining of sore muscles from walking in toning shoes. I found people complaining of tripping, apparently because of these shoes. I found a complaint of sore feet after working out in these shoes.

My concern, and the reason I raise this example, is that it would be most unfortunate if these complaints were to divert the agency’s attention away from high priority hazards to deal with things like toning shoes. I hope that the agency has sufficient discipline to keep its focus on truly unsafe products. If we do not have that discipline, then high-heel wearers beware: We all know that 4-inch spikes are dangerous and should be banned.

Logjam Broken?

Published May 12, 2011 Children's Products , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Public Database , Risk Analysis , Small Business , Testing 1 Comment

I am glad to see that the House Subcommittee on Commerce, Manufacturing and Trade voted today to support a bill to enhance CPSC’s authorities to prioritize based on risk and thereby protect consumers while reducing some of the unintended consequences of the CPSIA. I hope that momentum for some real reform continues to pick up pace.

Arguments being made against the bill do not stand up to scrutiny. For example, it is said that this bill will do away with third-party testing: not true. Mandatory third-party testing is preserved for the standards that CPSIA listed as priorities (i.e. lead paint, cribs, pacifiers, small parts, lead content in children’s metal jewelry, baby bouncers, walkers, jumpers and other durable nursery goods). In addition, CPSC is allowed to require third-party testing for other standards as it determines is needed for consumer safety, as well as continued compliance testing. The point is that the expert agency will decide what testing makes the most sense.

It is said that this bill creates “common toy box” problems, i.e. children playing with older children’s toys. If the “common toy box” problem is the concern that children will use something beyond their age range, where does this theory stop when the child plays with things throughout the house?

Anyone who has raised children recognizes the silliness of the “common toy box” argument. Most parents remember sitting their baby on the kitchen floor with a pan and metal spoon to bang away with. Of course, the lead in these products – used for cooking and eating – is considerably higher than what is specified in the CPSIA. And parents know that 12-year-olds do not tolerate lightly toddlers getting into their stuff. But more importantly, the common toy box argument does not recognize the long standing practice of this agency to regulate products based on the hazard they pose as determined by the age of the child. For example, we recognize that small parts present a choking hazard to small children but that same hazard is not present for older children. Therefore we ban small parts in toys intended for toddlers. We do not take the position that a common toy box means that small parts are banned in all toys. We look at the risk and then regulate as appropriate. Lead exposure in children’s products should not be treated any differently.

Other arguments being made against the bill also do not stand up to examination. It’s good news that this bill is on its way to full committee consideration. The sooner CPSIA reforms are in place, the sooner CPSC can return to focusing its resources on consumer risks that matter most.

Finally Movement to Fix a Broken Law

Published April 7, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Public Database , Risk Analysis , Small Business , Testing 1 Comment

I am pleased that today the House Subcommittee on Commerce, Manufacturing and Trade is holding a hearing to discuss the draft legislation to solve problems with the CPSIA that have been so evident. The draft bill will go a long way to addressing many of the unintended consequences of the CPSIA. It’s time to get our agency back on track and focusing on real safety issues, not imagined ones.

I hope any final legislation will include the following necessary changes:

The lead exclusions need to be amended to give agency more flexibility to address unintended consequences. The amendment needs to recognize the expertise of the agency to define what is an unacceptable risk based on whether the child’s interaction with the product results in measurable increase in blood lead levels. Migration of lead limit from 300 ppm to 100 ppm (effective in 2011) should be repealed. The agency can set an appropriate lower level if dictated by safety. The scope of the lead provisions is too broad. The law treats all children – from infants to preteens – the same even though product interaction is quite different and risks are different. The scope should be narrowed to apply to products intended for younger children (recognizing that the agency has inherent authority to deal with risks, regardless of source, to older children).

The lead and phthalates provisions need to be amended so that the law applies prospectively, rather than retroactively.

Mandatory third party testing requirements for all children’s products impose a significant burden especially on small businesses. Testing and labeling provisions need to be amended to minimize the damaging impact on product makers while protecting consumers. Rather than requiring third party testing in every instance, the agency should be able to set reasonable and appropriate testing and labeling requirements to assure compliance with underlying safety standards.

Regulations should be subject to cost/benefit analysis.

The Public Database provisions should be amended to include only complaints from consumers who bought or used the product or relevant public health or other public agencies; enhance the ability of businesses to respond to complaints; and include the duty of the agency to assure accuracy of any information made public.

The discussion draft would go a long way to solving the obvious problems with the CPSIA. I hope that Congress will move swiftly to pass constructive legislation.

Put Accuracy to Work for Consumers

Published March 31, 2011 Congress , Consumer Product Safety , CPSC , CPSIA , Public Database Leave a Comment

The Wichita Eagle also posted my op ed piece outlining my concerns with the consumer product database. I am worried that we could be giving the public misleading information, with the government stamp of approval. I applaud Representative Pompeo for taking a leadership role on this issue. The text of my opinion piece is below:

“Put Accuracy to Work for Consumers”

Rep. Mike Pompeo, R-Wichita, has been receiving criticism for raising questions about a well-intentioned but flawed federal program to establish a public database of safety complaints about consumer products. However, he is doing exactly what a member of Congress should do — raising questions about how best to use tax dollars and whether scarce public resources should be used for such a poorly conceived program.

Though the objectives of this program are laudable — to provide consumers with reliable information about the safety of the products they buy — one can and should question the way in which this program is being implemented.

I have served as a commissioner at the U.S. Consumer Product Safety Commission for the past five years and have closely watched the development of this database. I can attest that this program may well mislead consumers to their detriment. Here are some of my concerns:

* Instead of limiting the people who can post a complaint to those with firsthand information about the incident, anyone can post a complaint — trial lawyers trolling for clients, unscrupulous competitors looking to damage a business or its reputation, or the gossiping neighbor down the street who heard the story “through the grapevine.”

* Instead of requiring those who submit complaints to at least put the location of the incident or the model number of the product, complaints could be filled with only sketchy information that is of little use to anyone.

* Instead of verifying that the information posted to the database is correct, the commission is under no obligation to confirm the accuracy of information submitted, even when the accuracy is challenged. And while it is clear the commission will not investigate most of these claims, when we do, we are not planning on telling consumers the results. It appears that once the complaint is there, accurate or not, it’s there indefinitely.

We had the chance to make the database a helpful tool for consumers, but instead it will potentially become just another sinkhole for complaints, but with the apparent “seal of approval” that comes from being on a federal government website. We had the opportunity to get it right but instead spent millions of taxpayer dollars to construct something that could well mislead consumers and undermine our safety mission. Consumer safety is not advanced by such a result.

To be clear, the intent is not to keep reports from consumers; the goal is to give consumers accurate reports that can be safely relied upon in their decisions.

Give Consumers Accurate Data

Published March 31, 2011 Congress , Consumer Product Safety , CPSC , CPSIA , Public Database Leave a Comment

Today the Wichita Eagle published the letter to the editor that I sent defending Congressman Pompeo’s move to halt funding for the consumer product database. Here’s the letter, in case you missed it.

“Give consumers accurate data”

The commentary “Pompeo’s cut puts children’s safety at risk” (March 8 Opinion) could not have been further from the truth. Rep. Mike Pompeo, R-Wichita, is doing exactly what he should do — question spending scarce public resources on poorly conceived programs that may well mislead consumers to their detriment.

The U.S. Consumer Product Safety Commission public database was launched with a “punch list” of more than 120 fixes still needed, and the list grows. It is not ready for consumers to rely on.

The commentary compared the database to warnings on cigarette packs. Really? Science tells us what carcinogens are in cigarettes. The commission will investigate less than 10 percent of the reports on this database, and those results will not necessarily be made public. A sketchy warning, at best.

Pompeo rightly insists on spending the money on a database that gives consumers accurate reports that can be safely relied upon in their decisions, not a mishmash of “junk science.” We should give consumers “news they can use,” not just a sinkhole for complaints.

We all want a database that works for consumers, not confuses them. The commission is supposed to address defective products, not produce them.

NANCY A. NORD

Commissioner

U.S. Consumer Product Safety Commission

Bethesda, Md.

At Least the Wall Street Journal Is Listening

Published March 11, 2011 Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Public Database , Small Business 3 Comments

The Wall Street Journal got it right with this editorial today…

Get the Lead Out, Sir

Nutty test standards give Obama a real chance to help business.

President Obama has been on a campaign to shake his antibusiness reputation, so a good place to start would be to revisit the Consumer Product Safety Improvement Act, a mess of a law that has put new burdens on small businesses.

In 2008, Congress passed the law in a rush to do something after a scare over lead in toys imported from China. Its problems were quickly apparent, sweeping products from books to bicycles into the dragnet for lead standards. But while businesses pleaded, Democrats stood behind it as a pinnacle of consumer protection while blaming the Consumer Product Safety Commission for any enforcement problems.

The CPSC has done what it can to allay the fiasco of unintended costs and disruptions for small businesses, including staying large portions of the law. But as Commissioner Nancy Nord told House Democrats last year, the language of the bill is drafted in such a way that fixing all the problems is impossible because the “exclusions and exemptions process is not workable.”

Instead of being able to focus energy on products that present real risks to kids, the CPSC’s staff has had to regulate products that pose no harm. The likelihood of a toddler swallowing an all-terrain vehicle, for instance, didn’t stop that product from being swept into the maw.

The law also requires the CPSC to propose the parameters of a third-party lead testing regime, but the issue is so mired in complexity that the commission has yet to set those standards. Under the proposed version of this so-called “15 Month Rule,” Learning Resources Chairman Rick Woldenberg has estimated that supplying multiple testing samples on each of his company’s toys and products will cost his company some $15 million per year.

It gets worse. In August, the lead standard is set to go down to 100 parts per million from the current level of 300 parts per million. Like the earlier step down, the new standard is supposed to be retroactive when it goes into effect, meaning that it will apply to toys and children’s products manufactured before that date, which were perfectly legal when they were made. All five CPSC commissioners have said they don’t believe the new standards should be retroactive when they go into effect this summer.

At a hearing in the House Energy and Commerce Committee in February, California Democrat Henry Waxman defended the law as “necessary to protect kids and families across the country.” We wonder how he figures that, since the incidence of lead poisoning from toys made by domestic manufacturers is nil.

Energy and Commerce Chairman Fred Upton and Subcommittee Chair Mary Bono-Mack have said they will soon introduce a bill that would finally end a regime that has clobbered small businesses with ill-conceived regulations. If Mr. Obama wants to help small business job creation, he could agree that the government doesn’t need to mandate a lead testing protocol for every product known to man.

A Defective Consumer Product – Courtesy of CPSC

Published March 10, 2011 Congress , Consumer Product Safety , CPSC , CPSIA , Public Database 2 Comments

Come March 11, reports filed with the CPSC from virtually any source will be logged into a database that will become available for public viewing on April 1 (no comment!). There has been much press coverage of what a boon to consumers this information will be. What is remarkable is that no one in the media has made the effort to look behind the curtain at how it is really working. The fact is, this show is not ready for prime time.

For the last six weeks, the dress rehearsal for the database launch has been running into issues and questions that have been mounting up. Yes, that’s the purpose of a soft launch, to discover AND address glitches. Problem is, the list of concerns that have been identified (and it’s well over 100 and still counting) will take, at a minimum weeks, and in some cases months, to iron out. Problems range from technical to conceptual. For example:

· Licensees or retailers may be referenced in a report, but because of the database set-up, they cannot respond to the report and would not even be put on notice.

· Currently our system allows us to send only one automatic electronic notification through the business portal to a manufacturer or importer. Anyone else who should receive it gets it sent manually and if sent by “snail mail,” that will eat up much of the 10 day turnaround time allotted for manufacturers’ responses.

This is hardly an exhaustive list. Yet we are rushing to get this up and going, I suspect, in part, to beat any Congressional action to delay it until these issues can be resolved.

Interestingly, concerning another agency’s online electronic reporting platform, EPA just announced that “following conversations with industry and others, and in the interest of providing high quality data to the public…” it is extending the online launch of the Greenhouse Gas Reporting Program until later this year. This extension will “allow EPA to further test the system.”

Gee, what a novel idea. I don’t see why CPSC couldn’t do that and instead insists on launching a defective consumer product. CPSC is supposed to address defective products, not produce them.