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Crib Recall Pt. 4 - CPSC - Protect the Public or Industry?

Posted by Jane Akre
Thursday, November 01, 2007 12:20 AM EST
Category: None
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50 years ago, Americans were being injured by washing machines, power tools, toys, kitchen appliances and cribs.  The enforcement on hazardous products was largely reactive. The Refrigerator Safety Act of 1956 and the Flammable Products Act of 1953 resulted only after consumers were hurt and children were burned.

President Lyndon Johnson supported broad-based regulations that would cover a range of consumer products and Congress created the National Commission on Product Safety (NCPS).

In a 1970 report, it concluded consumers were being exposed to hazards and the marketplace was not regulating itself.  The report proposed a new independent federal agency that would have the authority to regulate and set mandatory safety standards for dangerous products on the market.

In the early 1970’s the Consumer Product Safety Commission was given the authority to impose mandatory safety standards, a recall and ultimately a ban on unsafe products. But that was the non-controversial nature of consumer protection more than 30 years ago.

All of that changed around the time Ronald Reagan became president in 1980.  The climate was “get government off our backs.”  At Reagan’s Office of Management and Budget, David Stockman, wanted to entirely abolish the CPSC.

In 1981, the CPSC was amended.  It would no longer be able to promulgate a “mandatory” safety standard.  

 The Language of Regulation

 Today the CPSC takes a hands-off stand with the companies it oversees.  Manufacturers of 15,000 products –everything from lawnmowers to tires and baby cribs have the option to conduct a “voluntary recall” of faulty products. That means that the agency can avoid costly and time consuming litigation.

CPSC’s Scott Wolfson, tells IB News that the voluntary recall system has allowed the commission to conduct 472 recalls in 2007 alone.  “That allows us to carry out more recalls in a given year than if we had to compel,” he says.  

Then there’s, what Public Citizen calls the “notorious” 6(b) statute which governs how the commission disseminates product safety information to the public. Former Commissioner Anne Graham says, “You know there is a problem, but you (as a commissioner) can’t tell anybody about it until you go through the staff and you contact the industry. I’m not against trying to cooperate with industry but CPSC should not sit on something for a year when they are almost 99% sure there is a problem.”

And section 6 (b) of the CPSC lays out a very cozy relationship with manufacturers firmly in the driver’s seat.  Manufacturers of a suspected hazardous product have the right to withhold information for thirty days or longer.  The manufacturer has the right to approve whether or not information is released and can bring lawsuits against the CPSC to prevent disclosure of any information enclosed in a product notice.

The Public Interest Research Group, in trying to release its 2006, Trouble In Toyland annual report, ran into the Commissions “internal clearance requirements,” that made it difficult to find out which toys had been identified as dangerous and what remedial actions had been taken.

Amid the growing problem of defective products being overseen by a gutted agency that has lost more than half of its staff and budget since 1980—on October 4, 2007, hearings began on the CPSC Reform Act of 2007.  Senate Bill S. 2045, sponsored by Senator Mark Pryor, a Democrat from Arkansas, S. 2045 would reauthorize and modernize the CPSC by increasing funding by about 10 percent a year and giving the agency more control over recalls.

Children’s products with lead would be banned and independent third-party labs would be used to identify design flaws and determine if a product, such as lead, exceeded existing regulations.

$20 million would be used to improve the CPSC’s outdated testing facility, a former Nike Missile testing site in Gaithersburg, Maryland.

U.S. Public Interest Research Group’s Edmund Mierzwinski testified before Senators that the agency needs to strengthen a ban on lead and make accountable companies that import products with lead, rather than point the finger at third party suppliers.  

The bill proposes amending 6(b), limiting a companies response time to 15 days and taking away the ability of a manufacturer to institute court proceedings against the CPSC if it notifies the public about a dangerous product.

The biggest enforcement stick would be the agency’s ability to raise civil penalties from $1.83 million to $100 million with the possibility of jail time and asset forfeiture for repeat offenders.

The National Association of Manufacturers opposes the bill fearing that without proper vetting, the agency might release misleading and defamatory information that could seriously hurt a product and the company’s reputation. 

Surprisingly at the hearing, CPSC’s acting chairwoman Nancy Nord also opposed the bill.  She told senators that amending the law would make companies shut down and discourage them from coming forward.  Under the present rules, the agency can assure manufacturers confidentiality about their products even if a hazard is present. 

The Consumer Federation of American and the U.S. Public Interest Research Group both endorse the legislation. #

 

 

 


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