House and Senate Bills Creating New CPSC Powers is Long Overdue
Attorney
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Editorials like one appearing in the Wall Street Journal on Tuesday, March 4, 2008 are examples of irresponsible journalism. Just as the public tired of "liberal media" so are they sick and tired of the other extreme form of journalism that adds nothing to solving problems. The editorial board should go back to the basic foundation of good solid journalism and save their opinions for personal gatherings. I have one further suggestion. They should sharpen the lead in their pencils and as their mothers surely warned them, keep it out of your mouth.
In the Tuesday, March 4, 2008 edition of the Wall Street Journal there is an editorial titled "Lawyers 'R' Us. It discussed the house and senate versions of bills trying to strengthen the Consumer Product Safety Commission. Included in the editorial are claims that both bills include provisions that would "more than double the agency's budget by 2015...", increase "civil penalties faced by companies in violation of consumer safety rules.", a "whistleblower provision", "distribute enforcement power among the nation's dozens of state Attorneys General", allow the AG's the right "to file lawsuits and enforce rules against manufacturers"; "making matters worse, the Senate bill would create a new product safety database to provide "disclosure" of safety complaints - ostensibly for the benefit of consumers.", and lastly, "complaints from consumers would be listed on an official CPSC searchable database without any requirement to verify the claim or alleged defect."
At first glance I thought they were trying to be funny. In light of what we've recently experienced with lead paint on toys and how that affected the Christmas spending by consumers it appeared completely off the mark. But reading it again didn't shed any further light on the point of this editorial. The title suggests envy about what the editorial board perceives lawyers earn. If you don't like what your job pays then by all means get a new one. But don't throw your ethics away just to sell newspapers. Let's analyze each point the editorial makes to see if there's lead in the editorial staff's pencils. In considering each point they make and reflecting on current stories of toys covered in lead paint it's difficult to appreciate how anyone on the editorial board would consider this to be responsible journalism. Not even if they own stock in Mattel does this make sense to criticize. Let's examine each point they make and ask ourselves if this is a reasonable response to the proposed legislation.
WSJ COMPLAINT #1: Included in the editorial are provisions that would "more than double the agency's budget by 2015..."
RESPONSE #1: From all appearances the CPSC has been underfunded and is incapable of carrying out its legal mandate. So what is that mandate? On the website the mission is stated as:
"The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of serious injury or death from more than 15,000 types of consumer products under the agency's jurisdiction. Deaths, injuries and property damage from consumer product incidents cost the nation more than $800 billion annually. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard or can injure children. The CPSC's work to ensure the safety of consumer products - such as toys, cribs, power tools, cigarette lighters, and household chemicals - contributed significantly to the 30 percent decline in the rate of deaths and injuries associated with consumer products over the past 30 years. "
And in its annual report to the Congress the mission is described as follows: "CPSC's mission is to protect children and families against unreasonable risk of injury and death from over 15,000 types of consumer products. It is the only Federal agency that both identifies and acts on a wide range of product hazards. Our work ensures a uniform level of safety for the nation's families and provides businesses with a national level playing field for domestic and imported consumer products. CPSC addresses consumer product hazards through: the voluntary standards process; consumer information; safety guidelines; cooperative product recalls and corrective actions; and as a last resort, mandatory rulemaking and litigation. We operate advanced hazard identification systems, including a national hospital emergency room injury reporting system and provide safety information to the public through a toll-free telephone hotline, a clearinghouse, and a web site."
Whatever the budget may be in 2015 is anybody's guess but in light of the recent spate of defective toys coming into this country from abroad the one for 2008 seemed to be reasonable and realistically geared towards identifying and correcting current problems. For 2008 the CPSC requested $63,250,000. That amount represents a net increase of $880,000 over the 2007 funding level. That's an increase of 1.39%. Considering the CPSC deals with defects that are a fire hazard, those that can cause carbon monoxide poisoning and those concerning the safety of children's toys a 1.39% increase appears reasonable.
The 2009 Performance Budget Request includes the provision of $6,000,000 remaining available through 2011 for costs associated with the relocation of CPSC's laboratory to a modern facility and the upgrade of laboratory equipment. The 2009 request increases its budget to $80,000,000 for fiscal year 2009. This is in line with the goals set by Congress to enhance import safety and product testing capabilities. Simply put, if the manufacturers won't do the testing then we will.
WSJ COMPLAINT #2: Increase "civil penalties faced by companies in violation of consumer safety rules." The CPSC has been a commission seeking voluntary solutions to product hazards.
RESPONSE #2: What's wrong with putting teeth into enforcement? If after you warn the delivery boy about throwing the newspaper through your window, but continue to buy the newspaper he'll never stop. We've known for centuries how little we can trust the word of the Chinese government. Why then not make penalties real? As it is the CPSC is too nice.
Here is what I'm referring:
Whenever possible, the Commission seeks a voluntary solution to product hazards. This voluntary approach is demonstrated by our high ratio of voluntary to mandatory safety standards (almost ten-to-one since 1990) and our success at getting voluntary recalls (100 percent in 2006). (Page 9 of the report.)HOW WE REDUCE HAZARDS -
The Commission uses a number of strategies to reduce the risks associated with hazardous consumer products. These strategies include (1) participating in the voluntary standards process or developing mandatory safety standards; (2) conducting compliance activities such as recalls, corrective actions, and enforcement of existing regulations; and (3) alerting the public to safety hazards and informing them about safe practices. We also recently developed an international program to focus on reducing hazards from imported products. The agency bases its actions to reduce the risks from hazardous consumer products on information developed from its extensive data collection systems that assess the causes and scope of product-related injuries.
Consumers already think it's the fox watching the henhouse. Maybe if consumers read about a few large fines, consumer confidence would improve and it's consumer confidence that drives this economy.
WSJ COMPLAINT #3: A "whistleblower provision".
RESPONSE #3: If the manufacturer isn't doing anything wrong they have nothing to fear from those working in the manufacturing process.
"Staff participates in the development of voluntary standards at a number of steps in the process. Staff first submits recommendations for new standards, or modifications of existing standards, to voluntary standards organizations. On acceptance of our recommendations, the organizations complete technical work to support the requirements, publish a proposal for public comment, receive and evaluate comments, and publish a standard. This process may take months or several years. Staff participates in the process by providing expert advice, technical assistance, and information based on data analyses of how deaths, injuries and/or incidents occurred. Our voluntary standards policy does not permit us to vote on proposed changes or new standards. However, our comments are considered throughout the process."
It's been reported that whistleblowers attempting to report safety issues face an uphill battle just trying to keep their jobs.
"Whistle-blowers have faced hostility not only under Republican administrations. During President Clinton's tenure, Bogdan Dzakovic, an undercover security agent with the Federal Aviation Administration, suffered retribution for speaking out about weak airport security -- three years before Sept. 11, 2001. Dzakovic was passed up for promotion time and again, and today, he says, he remains consigned to data entry duties for the Transportation Security Administration. But a six-month investigation by the Center for Investigative Reporting, in collaboration with Salon, has found that federal whistle-blowers almost never receive legal protection after they take action. Instead, they often face agency managers and White House appointees intent upon silencing them rather than addressing the problems they raise. They are left fighting for their jobs in a special administrative court system, little known to the American public, that is mired in bureaucracy and vulnerable to partisan politics."
And so the fox stretched and yawned... and was heard to mutter, "Will they ever learn?"
WSJ COMPLAINT #4: "[D]istribute enforcement power among the nation's dozens of state Attorneys General", allow the AG's the right "to file lawsuits and enforce rules against manufacturers"
RESPONSE #4: The CPSC is stretched thin and including state AG's in the process would go a long way to enforcing product standards. Spreading out the duties would reduce the CPSC's workload. The state AG's already assist as a valuable and credible enforcement arm so why be concerned about them lending a hand? Is there a specific complaint the editors have to present or is this just more whining?
WSJ COMPLAINT #5: "[M]aking matters worse, the Senate bill would create a new product safety database to provide "disclosure" of safety complaints - ostensibly for the benefit of consumers."
RESPONSE #5: You're kidding me right? You're whining about consumers telling each other what's wrong with the toys they buy for their kids? The Commission does this already and the manufacturers have input into any rules that may apply. What's wrong with a mother telling other mothers and fathers that a certain toy has been found to have lead in it? If you're worried about false reports then allow the CPSC to add editorial comment or for that matter let the manufacturers add comments.
"Safety standards may also be developed through mandatory rulemaking. If a voluntary standard exists, by law, we may issue a mandatory standard only when we find that the voluntary standard will not eliminate or adequately reduce the risk of injury or death or it is unlikely that there will be substantial compliance with the voluntary standard.
Generally, our statutes require us to go through a three-step rulemaking process (an advance notice of proposed rulemaking, a notice of proposed rulemaking, and a final rule). During this process, we seek input from all interested parties, including consumers, industry and other government agencies. We usually develop performance standards, rather than design standards, to give manufacturers the most flexibility in meeting our requirements. Examples of mandatory standards are requirements for child-resistant lighters and for bunk beds. We may initiate rulemaking based on petitions from outside parties or based on our own internal staff work."
WSJ COMPLAINT #6: "[C]omplaints from consumers would be listed on an official CPSC searchable database without any requirement to verify the claim or alleged defect."
RESPONSE #6: Why would a supposedly objective third-party see a downside to making complaint information readily available to end users? To some extent this is already occurring. By creating a portal with the CPSC it would funnel to the very agency responsible for enforcement.
"CPSC warns the public about product-related hazards through print and electronic media, our hotline and the Web sites (www.cpsc.gov, www.recalls.gov and www.atvsafety.gov) and other outreach activities such as the Neighborhood Safety Network (NSN). The NSN is a grassroots outreach program that provides timely, lifesaving information to 5,000 individuals and organizations who, in turn, share our safety posters and news alerts with underserved consumers who would have otherwise never heard or received the information from CPSC. Additionally, we develop and provide safety information for the public through safety and recall alerts, print and video news releases, public service announcements, publications, national and local television appearances, and hotline messages. When knowledge of a hazard requires immediate warnings to the public, such as the recall of a playpen that caused the death of a baby, we rely heavily on the media (newspapers, radio, TV, news wire services) to disseminate our message. For warnings that need to be repeated -- and most do
-- we often rely on outreach by partnering with other organizations and developing programs, such as the NSN, to more rapidly disseminate important safety information."
Allowing citizens to participate in safety issues will benefit everyone. Secrecy aids nothing but adds to the injured children. If you want to reduce the number of legal claims for personal injury then this is a perfect way to achieve that goal. Let citizens warn each other and you will reduce the number of unsuspecting children who are injured. Do that and you keep the parents put of the trial lawyer's office.
WSJ COMPLAINT #7: Another complaint of the WSJ editorial staff is that small manufacturers will be put at a disadvantage due to costs associated with enforcement.
RESPONSE #7: This doesn't seem to be a legitimate assumption. First of all we already are at a disadvantage with Chinese labor costs. Second, a disadvantage is not a legitimate reason to poison our children with lead paint. It may cost American manufacturers more to do business but it will equally impact the imported toys. The Commission is sensitive to the disparity across markets and tries to do what it can to work with manufacturers on a voluntary basis.
"We use a Small Business Ombudsman to help small firms comply more easily with product safety regulations and guidelines by providing them with a single point of contact for assistance and information. The Ombudsman coordinates a clear and understandable response from our technical staff so that firms receive the information they need within three business days.
In 2003, we initiated the creation of www.recalls.gov, an innovative "one-stop shop" for all federal product recalls, in partnership with five other federal health and safety regulatory agencies. This Web site is an easy-to-use portal to all federal agencies that have the authority to conduct safety recalls. In 2006, there were 1.2 million visitors to the site. The hotline receives consumer complaints and provides information on product hazards and recalls to the public. The National Injury Information Clearinghouse provides injury data to our staff and the public and provides manufacturers with consumer complaints, reported incidents, and investigations involving their products."
The editorial makes it seem as if this is an agency that is out of control, interfering with the business of making toys and one that has gone too far. In reality that's just not true.
"For 2006 and 2007, we reduced resource levels and reduced some annual performance targets to reflect resource reductions, as appropriate. In 2008, we set ambitious targets given the proposed reduction in staff. After further analysis by the Commission, and based on actual funding, targets may have to be adjusted in the 2008 Operating Plan."
CONCLUSION: Editorials like the one appearing in the Wall Street Journal on Tuesday, March 4, 2008 are examples of irresponsible journalism. And just as the public grew tired of the "liberal media" so too have they become sick and tired of the other extreme flavor of journalism that adds nothing to solving problems. The editorial board should go back to the basic foundation of good solid journalism and save this baseless opinion for personal gatherings. I have one further suggestion. They should sharpen the lead in their pencils and as their mothers surely warned them, keep it out of your mouth.
http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf
http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2009plan.pdf