Archive for the 'regulation' Category



“Means are Inconsequential; Only the Ends Matter”

History is replete with examples of bad things that happen when good people, with good motives, act to achieve an end without regard to the means used.  The CPSC’s letter last week to sellers of self-balancing scooters (most of us call them hover boards) brings squarely to mind that Machiavellian notion about ends justifying means.

The agency’s action came in the form of a letter from the acting director of compliance to sellers of hover boards telling them that their products should comply with the newly-released UL voluntary safety standard addressing the risk of fire associated with some of these products. Those products that do not comply with this voluntary standard will be considered by agency staff “to be defective and . . .may present a substantial product hazard,“  thereby triggering the reporting and recall provisions of §15 of the Consumer Product Safety Act and related penalty provisions.  While this may perhaps be a good safety result, the statute sets out a path for achieving this result and that path involves a bit more by way of due process than just issuing a decree to make it so, as seems to have been done here.  That path forward is set out in §9(b) of the Act and instructs the agency on how to rely on voluntary standards to address an established safety risk.

Few would argue against the need to address the safety issues associated with hover boards that have been highlighted in recent months.  And the CPSC is to be praised for its desire to investigate and fashion an across-the-board solution as opposed to its unfortunate recent tendency to regulate class-wide hazards by recall or retailer intimidation.  But no matter how laudable the motives of the agency may be, short-circuiting the statute is never good practice by a regulator.  Yet, in a striking example of ends justifying means, this is exactly what the agency has done.

9(b) of the Act sets out a process for the agency to use when it wishes to rely on voluntary standards to address safety hazards. That process requires the agency to collect and consider public comments before making a final decision to rely on a standard written by a voluntary standards organization. Once the agency uses this process to rely on a voluntary standard, the reporting and related enforcement provisions of §15(b) apply.  This process has rarely been used by the agency.  Why this is true is inexplicable to me. However, its use would have allowed the agency to quickly put in place a regulatory mechanism to address the risks associated with these products in a way that was consistent with the statute and that respected the due process considerations central to good regulatory practice.  Aside from being the right thing to do, it would also bolster the agency’s enforcement position in the (unlikely) event its actions are ever challenged. Instead, the agency acted by fiat to achieve the result §9(b) contemplates without bothering to follow the statute.

Some may argue that these products are so dangerous that the agency needed to act quickly and just could not be bothered to follow the law.  But again, the statute contemplates this type of imminent hazard situation and instructs the agency on the path to follow in such circumstances, a path that also includes due process protections. The statute was written to balance the public’s legitimate safety concerns with the public’s need for procedural protections to assure a just and fair result.  Hop-scotching over the statute, no matter the reason, is not something the federal government should do.

Saying Goodbye to Another CPSC Star

Several weeks ago, Neal Cohen, the CPSC small business ombudsman, called to tell me that he was leaving the agency.  Neal created the job of ombudsman and it turned out to be one of the most difficult and most under-appreciated but critically important positions at the CPSC.

The office of small business ombudsman was set up in 2010 in an effort to respond to the growing cries, especially from the small business community, that the agency’s regulations implementing the 2008 CPSIA statute were imposing a crushing burden on product sellers, notably small businesses.  When the office was set up, I argued that it should be a true ombudsman, bringing to the agency the concerns of small businesses as well as developing and advocating for solutions to the problems that community faced because of agency action.  Instead, the office was designed to be an outreach and education office—to help the small business community understand and comply with regulations.   While not fully meeting the true definition of an ombudsman, this still was a very important role, especially given the complexity of the rules the agency was in the midst of writing.  And Neal was just the right person to fill the position.

Over the past five years, Neal has worked tirelessly to make sure that businesses, especially small ones, understand their safety obligations as product sellers.  He has designed educational programs, given presentations throughout the country, answered thousands of emails and phone calls, and through that process, has helped the agency put a human and caring face on its work.  The latest achievement of his office, development of the Regulatory Robot, an on-line tool to help businesses understand what regulations they are subject to, will continue to be a testament to his dedication and hard work.

Whoever follows Neal in this role will have big shoes to fill but also a very good role model for how to get done a difficult but important job.  February 19, 2016 will be Neal’s final day at the agency. And as Neal leaves federal service to go into the private sector, no doubt he will come to understand even more the important public service he provided.

All I Want for Christmas Is . . .

A lifetime government job.  And if the commissioners at the CPSC grant tihe pending pettion to ban certain flame retardants, the staffers working on the ban will get that wish.

Earlier this month, the commission held a day-long hearing to consider a petition to ban all organohalogen flame retardants (OFT’s) used in children’s products, the plastic cases for electronics, mattresses and pads, and residential upholstered furniture.  Petitioners assert that the chemicals making up these flame retardants accumulate in the body and could cause cancer and other chronic diseases. Comments on whether to grant the petition will be accepted until mid-January.

So why does granting this petition guarantee lifetime employment for the staff working on it?  First, the breadth of the petition makes for an almost unmanageable task for those trying to write a regulation that would be upheld by a court.  The petition is not just asking for a ban of a single substance; instead it includes at least 83 different flame retardants, each somewhat different from the other, and would apply to substances for which risks are undemonstrated and entirely speculative. The product categories are also very broad and would include thousands and thousands of products where exposure to the OFR’s differ one from another.  Contrary to the assertions of the petitioners, the statute does not allow for regulation based on speculative harm. And like it or not, the statute does require that any regulation be based on risk and exposure.

In this regard, petitioners draw an analogy to the commission’s regulation of lead, a comparison that is entirely inapposite.  Prior to passage of the CPSIA, the agency regulated lead based how exposure contributed to risk of injury.  Congress changed that science-based approach and decreed that mere presence, not exposure, was the trigger for regulation of lead.  However, for other substances, the agency must still find the existence of a hazard and the mere presence of a substance does not necessarily indicate there is a risk of harm.

Establishing the extent of the risk for a wide class of chemicals as they are used in broad product categories is not the only statutory hurdle that must be addressed.  It is entirely unlikely that the ban requested by petitioners would satisfy the cost benefit analysis required both by the statute and by good administrative policy. For example, while barriers, rather than OFR’s, may be an option for upholstered furniture, the costs of implementing that option are extraordinary.  And the agency would need to consider the value of the lives saved from fires that were prevented by the OFR’s.

The statute also calls for the creation of a Chronic Hazard Advisory Panel (CHAP) when the agency seeks to regulate chronic hazards like those now under discussion.  As experience has shown, managing the work of a CHAP will keep a number of staffers working hard for the foreseeable future.

This is not to say that the health effects of OFR’s should not be examined.  On the contrary, the Environmental Protection Agency has the authority (soon-to-be enhanced under proposed amendments to the Toxic Substances Control Act), and has underway activities looking at these substances.  TSCA clearly gives the EPA the authority to regulate both these chemicals and their uses and the EPA is doing that.  If the pace or outcome of this activity does not satisfy the petitioners, then they should take action at EPA to change that, not go forum-shopping around the government.

This petition illustrates the quicksand the CPSC wanders into when it acts to regulate broad classes of chemicals that may present chronic hazards.  The agency is well equipped to address acute hazards but chronic hazards through chemical exposure present very different challenges.  Should the agency grant the petition and venture into the regulation of whole classes of chemicals, that action could sink the agency into a quagmire that will keep staff busy for years trying to claw out.

If the Public Doesn’t Buy it, Keep Selling it Anyway

Today, the CPSC is reannouncing a recall because the original announcement garnered such a low response rate—under one percent.  Today’s action and the original recall – done in May, 2014—illustrate how the agency overuses and misuses the recall system.

Here’s the background.  In May, 2014, the agency announced a recall of portable adult bed handles used to assist getting in and out of bed.  According to the agency release, the bed handles could shift and create a gap with the mattress; three individuals in adult care facilities became entrapped and died in the gap between the mattress and the handle.  The agency is concerned about 113,000 bed handles manufactured between 1994 and 2007.  The remedy that the agency proposed is for those who have the bed handles to contact the company to get a set of straps (and 3 pages of instructions) to use to hold the handles in place.  And, yes, did I mention that they also get a sticker to put on the handle to remind them to use the straps?

The agency has taken a business-as-usual, cookie-cutter approach to a problem that needs more creative thinking to solve.  The home health care and adult care industries have traditionally not been ones that have had to deal with the CPSC. And while greater availability of products in the general marketplace makes for greater responsibility on the part of providers, safety regulators also have a role to play in reaching out to those it newly seeks to regulate.  Efforts to craft a safety standard for this product have now been over two years in the making, so writing a standard apparently is not necessarily an easy undertaking.  In the meantime efforts to encourage an industry safety campaign to educate caregivers—perhaps even giving out safety straps where needed–could go a long way to addressing the risks the agency has identified. But up to now the agency has been absent on that front. [Commission Adler and I will be on a program before the home health care industry next month addressing some of these issues.]  My point is that such an educational program would reach more caregivers in a more effective way than the 2014 press release and today’s reannouncement.  Yet, the CPSC is wedded to the notion that only a recall and press release will suffice, in spite of evidence to the contrary.

The recall is trying to reach products that are quite old.  The newest bed handles subject to the recall have been in the market for at least eight years and who knows how many are still being used.  The remedy that is proposed also appears to be somewhat hard to accomplish and that may also explain why so few people have responded. The statute states that a recall remedy shall be a “repair”, a “replacement”, or a “refund”; it does not say a “re-jiggering.”  Yet, that is what this feels like.

The CPSC has overused the recall device to the point that even when the agency yells, often people don’t listen.  It has underused its ability to take on safety campaigns, either solely or in cooperation with other allies who could help it leverage its resources and broaden its reach.  That is too bad.


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