What’s ahead for the Consumer Product Safety Commission?

What’s ahead for the Consumer Product Safety Commission?

Carol Dawson

Five years ago, CPSC Monitor issued brief recommendations to improve the regulatory functions of the U.S. Consumer Product Safety Commission (CPSC). The recommendations were made at the request of the House Commerce Committee. [1]

None of the recommendations was implemented. Under the regime of former Chairman Ann Brown (1994-2001), the Commission took a new direction and the results were often harmful to both consumers and the regulated industries. CPSC Monitor commented frequently on the regulatory excesses and unreasonable policies that marked the agency during those seven years.

The beginning of a New Year is an appropriate time to look at the failures of the past seven years and suggest how CPSC’s new leaders can profit from those mistakes.

Consumer Alert’s Recommendations:

(1) Instill a Tone of Civility and Openness

An area that is improving already under Acting Chairman Thomas Moore is the tone at the Commission. Staff and industry representatives often felt the sting of former Chairman Brown’s harsh judgments.

Such inconsiderate behavior created fear among the staff, and hostility of those on the outside. Such an environment does not promote cooperation and certainly does not lead to increased protection for consumers.

But a new tone is already apparent at the agency’s headquarters. Tom Murr, the Acting Executive Director, is moderate in manner, studious in his approach to staff work, and eminently approachable to the public.

Brown’s obsession with publicity led her to impose barriers to media contact with staff. This policy has ended and there now seems to be no problem getting candid and useful information from the technical staff. Ken Giles, the experienced professional who is Acting Director of Public Affairs, is readily available to the media, as are other experienced staff members.

Commissioners Gall and Moore and their staffs are friendly and approachable and work well together, while not always in agreement on the issues.

We applaud this new tone and hope that it prevails in years to come, especially once the Senate confirms a new Chairman.

(2) Base Regulations on Good Science

Both top officials and career staff at the agency need to approach their work with some degree of skepticism. There is much bad science circulating in the steam of product safety discourse (See our earlier articles on phthalates in vinyl children’s toys.). Staff should be encouraged to question the data, and find better data when available. Staff should raise a basic question at the beginning of any regulatory or compliance procedure: “Will this action help protect the consumer?”

Under Brown there was a marked tendency to assume that federal regulations will always benefit consumers. If the new chairman directs the staff to use common sense, do cost-benefit analysis, and invoke the “unreasonable risk” test before recommending regulations, it will save consumers from potential harm.

This approach may mn into opposition from some quarters on Capitol Hill and among the so-called “consumer advocate” community who sometimes hold that the only safe product is one that is heavily regulated. But Congress has delegated the authority to promulgate safety regulations to CPSC and both Commissioners and staff should be prepared to defend their actions, even when they decide not to regulate.

(3) Stick to the Statute–And Don’t Regulate by Press Release

The Consumer Product Safety Act (CPSA) was adopted by Congress in 1972. It was the subject of extended debate at the time and was carefully crafted to meet many reasonable objections from lawmakers.

It has been amended several times since (more on this later), but it is still basically a sound statute.

CPSC gets into trouble when it attempts to circumvent the clear meaning of the statute by inventing artful interpretations of the law. (A good example is the bunk bed issue, where a tortured definition of “substantial compliance” supplied by the Brown-appointed General Counsel allowed two Commissioners to vote for a regulation, supplanting a legitimate voluntary standard.) CPSC also steps outside the statutory boundaries when it attempts to expand its jurisdiction beyond what the law provides (for example, the issue of possible federal regulation of escalators, fixed-site amusement park rides, and fire sprinklers).

The appointment of a competent new General Counsel is the best way to avoid the hazard of subverting the intent of the statute. The current Acting General Counsel, Alan Shakin, is certainly competent. (The fact that he directed a letter of reprimand to the former Chairman when she attempted to appropriate a CPSC project, “the Product Safety Circle,” shows he has a no-nonsense approach.) [2] When the new chairman arrives, however, he will undoubtedly name a new General Counsel. That person should be someone with knowledge of the statute and a commitment to accurate and prudent legal interpretations for the Commissioners.

CPSC’s leaders should seek to avoid unilateral public pronouncements by either the Chairman or by a single Commissioner designed to force a manufacturer to make changes in a product without the benefit of official CPSC action. An example of such an instance was former Chairman Brown’s pronouncement demanding that crayon manufacturers reformulate their product based on a bogus allegation that the crayons contained harmful amounts of asbestos. [3] Manufacturers, faced with a public embarrassment, had no choice but to comply.

(4) Give Voluntary Standards Community the Respect It Deserves

Many industries subject to CPSC jurisdiction work closely with voluntary standards groups such as ASTM and ANSI [4] to develop good safety standards.

Standards groups such as Underwriters Laboratories and others have been in the standards business a lot longer than CPSC.

Nevertheless, under Brown, there seemed to be hostility to the non-government standards community and an assumption that the feds could always do it better.

In 1981, Congress directed that CPSC defer to private standards, whenever certain findings could be made. Under Brown, that directive got only lip service, not real application.

CPSC’s new leadership should begin to promote an open, trusting relationship with the non-government standards community. It should also keep asking the question “should CPSC interfere with this particular standard development at all?”

In many cases, CPSC could not make the statutory finding of “unreasonable risk” that is required before formal rulemaking. If that is the case with the product in question, CPSC should also back off from interfering in the non-government standards-setting process.

Only when that system falls short and only when the risk involved meets the “unreasonable” level, should CPSC intervene in the voluntary standards effort.

CPSC’s new leaders should also observe the “civility” role when dealing with that community. Under Brown, there was a thinly veiled effort to discredit Underwriters Laboratories through a negative story in the Washington Post–a good example of the worst kind of hostile approach. [5]

(5) Work for Improvements to the Statute

CPSC Monitor suggests that CPSC’s congressional liaison recommend several changes to the Consumer Product Safety Act (CPSA).

One recommendation is to eliminate the amendment added in 1990 that requires companies to comply–under penalty of CPSC action–with certain voluntary standards. Such a provision is inconsistent with the term voluntary. CPSC still has the use of Section 15 to protect consumers if the products not in compliance with the designated voluntary standard present an unreasonable risk.

Require the use of cost-benefit analyses in both regulatory and compliance actions.

Repeal Section 37 of the CPSA that imposes reporting requirements on companies, but has failed to produce much useful information.

(6) Stick to the Mission

CPSC’s new leaders should act quickly to eliminate the “Chairman’s Award” and the “Product Safety Circle” instituted by Brown. Both of these publicity-seeking activities are outside the statute and could lead to an erroneous impression that a regulatory agency can endorse specific products or companies. Those activities tended to compromise the agency’s independence.

Following these simple recommendations would be a good start for the new leadership at CPSC.

[1] See CPSC Monitor, Vol. 2, Issue 3, “Consumer Alert Recommends Changes to Improve the CPSC,” by Rich Zipperer, Consumer Alert policy analyst.

[2] See CPSC Monitor, Vol. 6, Issue 10, “Brown Touts CPSC `Initiative’ as her own on SAFE Website,” Nov-Dec. 2001.

[3] See CPSC Monitor, Vol. 5, Issue 6, “A Silly Fuss Over `Killer Crayons,'” June 2000.

[4] (ASTM) American Society for Testing and Materials, and (ANSI) American National Standards Institute.

[5] See CPSC Monitor, Vol. 4, issue 12, “The War on the Mark,” November 1999.

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