In a recent story (apparently instigated by a former CPSC commissioner whose reappointment hopes were thwarted by the 2016 election), the Washington Post asserts that the Consumer Product Safety Commission’s leadership is not protecting the public. The Post article skews the facts to present an inaccurate picture to which a response is warranted. After much “tugging and pulling” the newspaper today agreed to print my Letter to the Editor attempting to correct some of the innuendos in the story. Here is a link to the letter:
The story involves a popular jogging stroller with a quick release wheel feature. Injuries occurred, not because the quick release malfunctioned, but when the consumers did not properly engage the quick-release. When the company refused to recall the strollers, arguing that they were not defective, the CPSC brought a lawsuit to force a recall. In the CPSC complaint, the agency argued that the strollers were defective because some consumers “may not read, may fail to follow or may misunderstand the instructions” on how to use the quick release. Importantly, the agency did not argue that the instructions were inadequate or confusing but instead that some failed to properly follow them and that this made the product defective. Under the CPSC’s theory, the potential for a consumer to misassemble or misuse a product, even with clear instructions and adequate warnings, is enough to render a product defective. The story discounts the fact that the product also met all applicable safety standards. If those standards are not adequate, the correct approach is to change the standard, not unilaterally declare products defective. (The three commissioners voting to bring suit did not suggest changing the standard, nor did the CPSC staff.) Injuries associated with consumer products are always very regrettable. But those injuries, when they come from misuse of a product or failure to follow clear warnings and when the product meets all safety standards, should not, by themselves, necessarily render a product defective.
The story goes on to suggest that, upon assuming the chair, Acting Chairman Ann Marie Buerkle worked to withhold information about the investigation from her fellow commissioners. That story-line does not comport with my experience as a CPSC commissioner. All commissioners can meet with staff at any time—my own practice was to meet with the director of compliance on a weekly basis to be briefed about on-going investigations, and that was also the practice of other commissioners. The staff, the majority of whom are dedicated career employees, do not withhold information from commissioners. And while politics should not be an issue, it is worth noting that both the director of compliance and the executive director of the agency, two senior staffers who were necessarily involved with the matter, were appointed by an earlier President Obama-nominated chairman. Finally, it must be remembered that the settlement of the case, which the Post faults, was negotiated by career staff and this was the recommendation put to the commission.
As I stated in my Letter to the Editor, Ann Marie Buerkle is very well qualified to be Chairman of the CPSC. She is a medical professional (an important skill set no other commissioner has had), an experienced lawyer and a former Member of Congress. She is the mother of 6 children and the grandmother of many—in other words, a real consumer. Having served with Ms. Buerkle as a colleague on the Commission, I know that she listens to and carefully considers all arguments and information provided her before making decisions.
The real gravamen of the story is that there are those who do not agree with some of the votes that Acting Chairman Buerkle has made and that disagreement has spurred attacks on her character such as were made in the Post article. However, policy disagreements should be debated at the policy level and those disagreements should not then be used to sully the reputation of a dedicated public servant.
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Published June 30, 2017 Burden Reduction , Comment Request , Consumer Product Safety , Nancy Nord , Recalls , regulation , safety Leave a CommentTags: CPSC, Nancy Nord, OFW, Recalls, regulation, safety
One of the very positive hallmarks of the new leadership at the CPSC is a desire to hear from all interested stakeholders on how to more effectively push forward the agency’s safety mission. The agency has offered several opportunities for input and for those of us who share that goal, these opportunities should not be ignored.
First, the agency will be conducting a workshop on ways to improve the recall process, including the effectiveness of recalls. Recall effectiveness is a perennial topic of conversation at the agency so it is gratifying that the agency is again looking at this topic, but hopefully from a new perspective. Both as a Commissioner and now, in private law practice, I often hear complaints about the opaqueness of the process. Participation in the workshop offers an opportunity to give real suggestions on how to make the recall process work better. The workshop will be held on July 26, 2017 at the agency headquarters in Bethesda. Those interested in participating must sign up with the agency no later than July 3. Here is more information about the workshop.
Second, the agency is requesting comments on ways to reduce the regulatory burden imposed by agency rules in ways that do not diminish safety. This effort is especially welcome since many of the regulations issued by the agency over the past eight years did not consider ways to accomplish safety goals in less burdensome ways. When Congress told the agency to try to find ways to reduce the burden of testing, the agency went through a fantasy effort to comply and, not surprisingly, came up with very little. Indeed, about the best it could do was exempt from testing toys made entirely from untreated wood from the trunks of trees (but not the branches—who knows what could be in branches!). (See here.)
Reducing unnecessary regulatory burden is important since this engenders respect and support for the agency. Rules that are outdated, overly complex, or impose requirements without regard to real and measurable safety results should be identified and either changed or repealed. The agency’s effort to collect information on burdens imposed by its regulations is a welcome first step in this process.