Archive for the 'Risk Analysis' Category

Majority’s Plan: Ram it through while we can

The past three days in this blog I have discussed my disagreements with the three-member majority on the Commission about the pending testing and certification rule they plan to ram through in October.

  • The proposed rule applies a one-size-fits-all approach to third-party testing that is guaranteed to be a misfit rather than requiring third-party testing where it is the most necessary (i.e., where the risk is highest);
  • The proposal needlessly sets detailed definitions of a “reasonable testing program” in regulatory stone; and
  • The voluntary component part testing rule—which holds the promise of actually lowering costs and for which work was completed some time ago—has been needlessly held back while we work on the testing rule.

I also question the insistence on rushing this flawed product through. H.R. 2715, passed just weeks ago, expressly instructed us to consider the costs of our testing rules and get public feedback on how to mitigate those costs while still ensuring the safety of children’s products.  It would make sense to get that information before we issue the rule, but the three-member majority doesn’t want to do that. I have to ask: If we don’t have time to get it right the first time, when are we going to have time to fix it?

Congress addressed another problem that I had with our proposed testing rule. The CPSIA required companies to submit “random” samples of their products for testing, but didn’t define the term “random.” It would have been good for the Commission to interpret “random” to mean that manufacturers couldn’t rig the game by choosing “golden samples” they knew would comply.

Our proposal, however, did not take that plain-language approach. It read “random” in a much more technical, complicated sense that might have meant lots of money for statisticians but little or no safety benefits beyond those of a common-sense reading.

In H.R. 2715, Congress resolved this dispute. The new law makes clear that Congress intended to prevent the cherry picking of samples by striking the word “random” and replacing it with “representative.” We could have done this by interpretation, but we chose to let others clean up our mess after the fact. Sound familiar?


  • Congress has expressly informed us that the majority was mistaken on at least one key aspect of the testing rule.
  • The new law re-shapes the landscape to require us to look at ways to reduce costs. 
  • The proposed testing rule has serious flaws that will make it more burdensome than it has to be and less effective than it could be.

Given all this, prudence indicates the path forward. We should take a few moments to re-examine what we’re trying to accomplish and how we’re trying to accomplish it. If we do that openly and sincerely, we will arrive at a better product.

Instead, because three members of the Commission want to do all they can while they still have their majority, they are poised to foist a misguided, misconceived, and likely expensive regulation on an already fragile economy. All with the promise that sometime in the future it could be fixed.  Man up and fix it now.



I recently wrote  about my hope that the majority of the Commission would seek and receive public input on our pending periodic testing and certification rule and the costs it will impose before we hand that rule down. I now know that hope was in vain, and three Commissioners will insist on forcing the rule through on the promise that the Commission will fix it as needed over the next year. Perhaps I was naïve to hope that the country’s economic worries, Congress’s direction in H.R. 2715, President Obama’s urging in his Executive Order, our staff’s practical concerns, and just plain common sense might steer the majority away from a course that is both irresponsible government and inconsistent with the spirit of the new law. 

It is now apparent that the final rule will be before us shortly, and the contents of that draft final rule have been predetermined by the majority.  Without getting into the minutiae of the rule, I believe there are fundamental principles it needs to reflect to be effective in balancing consumers’ needs for reliably safe products and businesses’ needs for regulation that places only as much burden as is necessary to meet our duty to consumers.

When the proposed rule came to the Commission in April of 2010, I worried the language did not strike that balance and, actually, made very little attempt to do so.  In fact, when three Commissioners voted down my suggestion that we consider the costs of the proposed rule and regulatory alternatives to meet the objectives of the statute, they declined even to ask about the consequences of the action they are so eager to take.  In the 17 months since, we’ve had clear messages from both Congress and the President that we should consider the costs and benefits of our actions and work to minimize the former while maximizing the latter, but three Commissioners have decided to summarily ignore those calls for common sense.   

The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires that, before a company first introduces a children’s product to the market, it send the product to a third-party lab for compliance testing. It also requires the same third-party testing whenever there is a material change in a product.

The CPSIA further requires periodic testing for children’s products. This means that, as long as a company makes a particular product, it has to test that product at regular intervals to ensure it still complies with all relevant laws and regulations, even if nothing about the product has changed.

The CPSIA, however, gives CPSC the flexibility to decide, based on risk, how and when companies can do their periodic testing in-house and whether they are required to use a third-party lab. Our current proposal requires periodic third-party testing for every children’s product, continuing our recent trend of clumsy, one-size-fits-all regulation that imposes heavy burdens on businesses large and small while doggedly refusing to consider costs, risks, or benefits.

For some categories of children’s products, of course, third-party periodic testing makes sense. It makes sense where the risk is highest, such as for products that very young children are in close contact with for extended periods of time.  However, when a child’s interaction with a product is more distant, intermittent, or incidental, third-party testing may not be necessary or may not need to be done with the same frequency. 

Different treatment for different risks should be intuitive. Any mother would tell you she’s more concerned about the safety of her child’s pacifier than she is about the brass knob on the drawer of a dresser that happens to be in the child’s bedroom. However, three Commissioners are eager to ignore that wisdom and treat the pacifier and the brass knob identically for third-party periodic testing. Not only does this fly in the face of common sense, it also wastes CPSC’s limited resources.

Our new law (H.R. 2715) grasps this common sense. Under it, we can give small businesses exemptions or lower-cost testing alternatives unless they make any of six specific materials or products: lead paint, cribs, pacifiers, small parts, children’s metal jewelry, walkers, and durable infant/toddler products (like high chairs, bath seats, and play yards). In this new law, Congress recognizes that the products on that list are a greater risk and should face more scrutiny. Why shouldn’t we do the same? The CPSIA allows it, common sense suggests it, Congress’s most recent law mirrors it, and resource limitations urge it, so let’s focus the most attention on the biggest risks, rather than setting a bar for the highest risk product and then mandating every other product meet the same demands. 

Regular readers of this blog will know that I am primarily concerned about two things: the safety of consumers, and the unnecessary costs of the regulations we impose.  My concern for costs is at its lowest when risk is at its highest.  If a company is making pacifiers, I want those pacifiers to go through the tests necessary to make sure they’re safe.  I don’t want the tests to be any more expensive or burdensome than they need to be, but whatever costs are necessary are necessary. Conversely, where the risk is lower (if it exists at all), in-house production testing or other QA/QC techniques may be the appropriate way to make sure the products continue to comply.  

This risk-differentiated approach is what I will be looking for in our periodic testing and certification rules.  One-size-fits-all fits no one well.  Let’s tailor the requirements to the risk and require third-party periodic testing where it will make a difference in safety, not just cost.

Bridge Over Troubled Water

In October, Thomas Moore, with whom I have had the pleasure of serving for six years, will end a 16-year tenure of stewardship as a CPSC Commissioner. Like many others, I hope the President nominates and the Senate confirms Commissioner Moore’s successor promptly.

There has been growing speculation as to how the Commission will function if our new colleague’s arrival is delayed. It’s no secret that many of our recent decisions have been contentious, with philosophical disagreements producing frequent 3-2 splits in either votes or opinions. Until another takes Commissioner Moore’s place, the three-Commissioner majority bloc will be down to two, and some worry a four-member CPSC will be immobilized by stalemates.

This dire prediction overlooks an option we’ve had all along: Cooperation. And for an example of how important that can be, we need look no further than Commissioner Moore.

From three years, I served as the acting Chairman of the CPSC. During that time, we had more seats empty than filled, as Commissioner Moore and I were the only members. With only two votes available, and since the law requires at least two votes for any official action, we had to work together if we wanted to get anything done. So we did.

During that time, with an under-funded and under-staffed CPSC, we took important strides to make, among others, portable generators, upholstered furniture, ATV’s and cribs safer, and we started climbing the mountain of work the CPSIA demanded. In the 9 months following the passage of the CPSIA, we issued more than two dozen rules and other decisions. We could not have done any of that work without a commitment to cooperation and civility.

But that collaboration wasn’t just a matter of necessity. Cooperation was—and remains—the most effective way for the CPSC to operate.  Cooperation and collaboration are hallmarks of genuine leadership. Leadership is recognizing that the best time to build a bridge is before the water is troubled. Commissioner Moore and I built such a bridge, but it seems to have been burned.

With the crutch of an absolute majority to lean on, it has not been necessary for the current Commission to collaborate or cooperate. Now, it looks like a seat will be empty and any action will require bi-partisan support.  We will again have a river to cross, but with no bridge to walk. My hope is that we still remember how to build a new one.

The talk about Commissioner Moore’s departure should be limited to how much we’ll miss him, but instead the rancor of the past two years stirs whispers of deep divides and stalemates.  This doesn’t have to be. Every Commissioner wants to protect consumers, as does every CPSC employee. We differ in our approach, in how we choose to balance the consequences of our choices, but we share that common goal.

 My vote will continue to go, as it always does, to the merits of each issue. If we can build another bridge and restore an atmosphere of collegiality and trust, I’m confident we can find enough common ground to allow the CPSC to effectively carry out its mission. The only remaining question is how many bridge builders we have left on the Commission.

Look Before You Leap

Much of CPSC’s work under 2008’s Consumer Product Safety Improvement Act (CPSIA) is done, but one giant piece remains: the periodic testing and certification rule. That rule will mandate periodic testing for manufacturers of children’s products, resulting in repeated testing against myriad standards and requirements.  As it was proposed, the rule requires that this ongoing testing be done by third-party laboratories. 

There are more than a few looming questions about how we will design and implement the rule. Perhaps the most fundamental is whether or not we will continue the majority’s approach of handing down needlessly expensive, one-size-fits-all regulations that treat the biggest international corporations, the mid-size companies, the niche businesses, and the one-person crafters the same.

There is reason to hope, however, that we will chart a new course. The CPSC reform law the President signed last Friday (176k PDF) requires us, within two months, to ask the public for information about the costs of third party testing requirements and ways to minimize those costs. A reasonable reading of our new law should lead us to give the public the chance to share their views with us and to give ourselves the chance to understand and consider those views as we develop the final rule. This would lead to a more thoughtful, more collaborative, and more transparent testing rule.  As an added advantage, this would also help us develop a final rule that does not impose unnecessary costs on an already stressed economy.

 My hope is that my colleagues will recognize how invaluable public input is, seek it now, and produce a testing and certification rule that utilizes that input. I’m hopeful the majority has understood the clear message from Congress and the President that we take the time to understand what it is we’re doing before we do it.

Democracy Means Debate

Today I was surprised to learn that our Chairman assumes any disagreement with her view of the world and rulemaking means, in her words, delay and distortion to circumvent the will of America.

I join with the Chairman and our talented, dedicated staff in seeking to remove genuine, unreasonable threats to consumer safety as our statute charges us to do. Life, unfortunately, doesn’t follow statutory rules, and always presents some risk. Falling off a bicycle will hurt even if it contains no lead whatsoever. As a mother, I would do anything in my power to change those realities. As a regulator, I know the CPSC does not have the power to change all those realities.  That’s why I advocate using our limited resources to address the greatest risks to consumers, particularly children.

The Chairman states that our excellent staff are “made up of parents and grandparents who are also consumers.” I guess I need to remind the Chairman we Commissioners and our staff are also made up of parents and grandparents who are also consumers. What’s her point?

I was struck by the number of baseless allegations by the Chairman. Among these was her imagining a “coordinated campaign” against her regulatory agenda. Two or more Commissioners expressing their sincere concerns about a regulatory approach does not a conspiracy make.

What the Chairman characterizes as “vigorous resistance” is actually my principled insistence on collaborative, participatory, democratic government. What does that mean?  That means the Chairman and the majority should not do what they just did on phthalates:  withhold information from the public and foreclose public debate. One virtue the Chairman does not and cannot claim here is transparency.

The “tactics” she accuses me of using are those of needless delay. Let’s see. The Chairman has repeatedly joined in votes to stay enforcement of a variety of CPSC mandates, and she has touted several of these votes as expressions of a spirit of cooperation. Apparently, when she agrees with a delay, it is merely wise bi-partisan restraint, but when I advocate for prudent restraint, it is merely dilatory.  

Additionally, the Chairman ignores the reality that I voted for many of the regulations she cites as CPSC’s latest achievements. In fact, she fails to mention that I took the lead in pursuing the new rules on drawstrings on children’s clothing, pressed the Chairman for months to bring it to a vote, and expanded the scope of that regulation to protect children more fully.

While the Chairman’s slogan “safety delayed is safety denied” may seem catchy, I prefer to focus on substantive language. For example, last week I tried to get regulatory language to focus our resources on our “particular consideration to the safety impacts on children.” I was voted down by the majority.

The message I get from the Chairman is clear: sit down, you’re rocking the boat.  It is unlikely her wish will come true.

Question: When is Children’s Safety a Particular Concern?

It’s a sad day when the Consumer Product Safety Commission (CPSC) – charged with keeping consumers, especially children, safe from harmful products – can’t even agree that it will demonstrate “particular concern for the safety impacts on children” when it enforces its rules. Yesterday was that sad day.

Two weeks ago, when a majority of the Commission decided to impose a heavy-handed, indiscriminate lead requirement when there were plenty of reasons not to, I suggested that we direct staff to draft an enforcement policy to let people know how we would seek to enforce that rule.  What followed were two weeks of negotiations that resulted in a rather empty “statement” drafted at the Commission level that does little to help the community understand our goals.

I had hoped we could, at least, tell people we will enforce the limit with “particular concern for the safety impacts on children.” This would tell manufacturers of things kids actually use, touch, and mouth that they needed to be extra cautious. I was not able to reach agreement to include this phrase.  Apparently, enforcement with  “a particular concern for the safety impacts on children” isn’t a message we want getting out.

During yesterday’s debate, we heard that we can’t make our enforcement policy public or it will turn into a “How to” manual for getting around our rules. However, such a public policy is not an unusual idea.  Other agencies do it, and, indeed, our own agency has done it before, and we’re still able to enforce our regulations especially when companies get either sloppy or cheap and endanger consumers.

During the debate we also heard that kind of public enforcement policy would be “backdoor rulemaking.” I fail to see how it is anything other than the kind of open, transparent governing we should be doing. We are, after all, supposed to govern in the sunshine, so why not put our policies out front so people know just what it is we’re trying to do? It seems odd to me that it would be “backdoor rulemaking” to talk publicly about what we’re doing privately. It seems to me that, if governing openly is “backdoor rulemaking,” then governing in secret is “trapdoor rulemaking”, and that’s a style of governing I can’t support.*

Instead of a clear, open policy that would put manufacturers of the products most likely to cause harm on notice that they needed to adhere to very tight safety programs, we wound up with the statement we approved yesterday. I agreed to the statement because it does acknowledge that lead testing at the level we’re requiring is, at best, an inexact science, and it assures that staff will consider that fact as appropriate when bringing enforcement actions.

Nonetheless, when we can’t even agree to let people know our enforcement decisions embody “particular concern for the safety impacts on children,” then perhaps it’s time to re-think how we approach regulating.

Here is the statement that we did agree to:

The Consumer Product Safety Commission is cognizant of the claims that some manufacturers have made regarding their difficulty in consistently meeting the 100 ppm requirements because of the inherent variability in testing methods and the variability in materials they use in the manufacturing process.

The Commission always attempts to apply good judgment, common sense and fair and reasonable approaches when it enforces its regulations. The Commission staff will always consider documented claims made by manufacturers regarding their difficulty in consistently meeting the 100 ppm lead content requirements.

*In addition to my concerns on the limited value of the statement we passed, I also believe the majority, in opposing a more substantive policy, is misusing the term “backdoor rulemaking.” In real backdoor rulemaking, agencies establish new rules through procedures other than the familiar (and open) notice-and-comment process the law provides for rulemaking. An example of this would be using enforcement powers to force companies into complying with an agency’s demands, thereby setting a de facto rule without having to go through actual rulemaking.

A Conversation I Wish We Weren’t Having

When I started this blog, I wanted it to be an open conversation with consumers, companies and those who are impacted by what the CPSC does.  The feedback I have gotten has been very helpful in informing my thinking on the various issues we are called upon to address. 

Today a majority of commissioners decided to discount the concerns that a number of small retailers have raised about the effective date of our new crib standard.  I believe that the majority made the wrong decision.  I believe that a modest extension of the rule’s effective date will not impact safety but will help small retailers.  I want to share with you a note I received in response to this vote.  This note sums up the issue better than I ever could and makes fighting the good fight worth it.

Commissioner Nord, I just wanted to take a moment to thank you for your support of our family’s small business in this morning’s Commission meeting. The outcome is sad & will, without a doubt, have a significant impact on medium size specialty stores (with built up inventory) such as ourselves. It is a shame that one . . . competitor (in business 7 years & borrowing to buy cribs at all) was so vocally against helping other specialty retailers. We have been in business 40 years & pay upfront for all of our merchandise. I’m ashamed to be in the same market & category as this other retailer. Thank you for your efforts on our behalf. My family really does appreciate it. From the bottom of our hearts,

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