With the CPSC’s blessing, a large furniture company recently sent out wall anchors for its children’s dressers to address a tipping hazard and the accompanying CPSC press release did not refer to the activity as a recall. Subsequently a child was killed when one of the dressers fell. Chaffing under criticism from its decision to allow the company to do a “non-recall recall”, the powers-that-be at the CPSC have now apparently decided that every corrective action or other announcement about a product must be labeled a “recall.” Commissioner Buerkle has pointed out why this rigid adherence to labels is bad policy. And this past week we have seen why her concerns are well-founded.
The issue involves the agency’s investigation of flooring made in China and sold by Lumber Liquidators, which allegedly emitted dangerous levels of formaldehyde. After the issue was described in a 60 Minutes segment in March, 2015, the company responded by agreeing not to sell the Chinese flooring and to test the flooring of those consumers who so requested. After over a year of extensive study, testing and investigation by several different agencies, no formaldehyde emissions above government guidelines were found.
Rather than announce this good news and put consumers’ minds at ease, last week the CPSC instead chose to cast the announcement in terms of a “recall.” The “recall” that the agency announced is a first ever “recall to test”, with the company agreeing to continue what it has been doing from the beginning–that is, test for formaldehyde emissions the flooring of consumers who request that. No promises of a refund, a repair or return of the flooring are made (although the release does hint that a consumer maybe, possibly could get some replacement flooring under undescribed circumstances at the company’s discretion). Buried in the press release is the admonition that consumers are not to pull up flooring they may be concerned about because that action could be dangerous.
I saw many press stories reporting that the investigation did not find a problem with the company’s product. I did not see stories that discussed the fact that the company was doing a “recall” (although perhaps I may have missed some). This is a good thing since, by trying to unnaturally shoehorn the announcement of the investigation results into the concept of a recall, the release is both confusing and misleading to consumers. And it belies the agency’s oft-stated notion that the press will ignore releases that do not include “recall” in the headline. It is an example of what happens when, like a myrmidon, the agency insists on rigid adherence to rules without concern as to appropriateness under the circumstances. As Commissioner Buerkle notes, the CPSC should never say never.
testing laboratories to a wide range of standards including, but not limited to those issued by the CPSC. My presentation was an opportunity to discuss how the agency has implemented the CPSIA with a special focus on the agency’s testing requirements. However, this was also an opportunity to have a free-wheeling conversation about the role that testing and testing laboratories play, and should play, in product safety.
“Insanity: doing the same thing over and over again and expecting different results.” Albert Einstein
Published February 25, 2014 Burden Reduction , Comment Request , Testing Leave a CommentTags: burden reduction, CPSC, Testing Rule
For the third (or is it the fourth?) time in as many years, the CPSC is again “addressing” the issue of reducing third-party testing burdens. For those who have already
commented repeatedly on this issue, Einstein’s definition of insanity may seem especially apt. In spite of direction from the Congress to either address testing burdens on its own or report on appropriate statutory authority needed to do so, the agency has repeatedly asked for comment but done nothing to actually reduce the testing burdens that have been so well documented.
This time the agency has announced that it will be holding a workshop, on April 3, focusing on reducing testing burdens associated with the regulations dealing with phthalates and lead content and the eight substances listed in the ASTM F-963 Toy Standard. The purpose is consider whether it is possible to determine that certain materials, irrespective of manufacturing origin or process, will always comply with agency regulations and therefore do not need testing. The agency is interested in worldwide production processes—past, current and, interestingly, future—but only with respect to the three areas noted above. In other words, tell them how past and current materials and manufacturing processes, and looking into a crystal ball, those that might be used in the future throughout the world show that the existing regulations in the three areas always will be complied with. Anything else is outside the scope of this inquiry.
Because the agency’s scope of inquiry is so narrow, it follows that any relief coming out of it will also be very narrow. So while I encourage either comments (due by April 17) or participation in the workshop (sign up by March 13), I do not have high hopes that meaningful burden reduction will be the end product. At best, there might be a slight adjustment to the list of materials the agency has determined do not and cannot contain lead and, hence, do not need testing. The further development of a list of materials determined not to have phthalates and the other substances listed in the toy standard may also be of help. At worst, the information collected will go into the maw of the agency and be digested with the other information the agency has already collected, but with no further useful output any time soon, other than for the agency to look like it is busy doing something.
There have been many practical suggestions made over the past three years that, if implemented, would reduce the needless waste of resources that the testing requirements have added to the supply chain and which consumers have to pay for. But the agency has been operating in a world that values endless process over meaningful results.
Einstein also said “We can’t solve problems by using the same kind of thinking we used when we created them.” Unfortunately, it does not look like any new thinking will be happening soon.