Submitted Testimony on FY22 CPSC Priorities

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Written Testimony of Remington A. Gregg For the U.S. Consumer Product Safety Commission

Submitted on March 17, 2020

Public Citizen appreciates the opportunity to submit testimony with our recommendations for priorities that the U.S. Consumer Product Safety Commission (CPSC or Commission) should add to its Fiscal Year 2022 agenda.  Public Citizen is a national non-profit organization with more than 500,000 members and supporters. Now in its fiftieth year, our organization represents the public interest through legislative and administrative advocacy, litigation, research, and public education on a broad range of issues that include product safety and consumer rights in the marketplace.

Introduction

The CPSC, founded in 1972, was dubbed the “most powerful Federal regulatory agency ever created”  when it was established. It was designed to be a modern agency, and so “Congress wanted the agency to have strong regulatory authority, generous funding, broad participation (especially by consumers) in decision-making, widespread openness, and substantial independence from White House influence.”  As the CPSC enters the fiscal year that represents its half century in existence, it is helpful to assess whether the CPSC has functioned as it was devised.

There is much to be done to ensure the CPSC functions as designed and lives up to its mission to robustly protect consumers as Congress envisioned. To that end, Public Citizen is eager to see the CPSC increase transparency through less reliance on Section 6(b) of the Consumer Product

Safety Act, increase the use of technology to advance the agency’s mission, advocate strongly for more funding for the agency to carry out its important mission, center diversity and racial equity into its policymaking, and swiftly finalize rulemaking on important issues that have languished at the agency.

The Commission’s  key priority should be transforming the agency to meet the challenges of the 21st century.

The Commission should begin documenting how Section 6(b) of the Consumer Product Safety Act contributes to the agency’s lack of transparency and places the public at risk.

Over time, the agency’s operations have become increasingly opaque to the public and Congress. One way to fix this problem is to repeal Section 6(b) of the Consumer Product Safety Act (herein 6(b)). Section 6(b) restricts the CPSC from publicly disclosing any information from which the public can readily ascertain the identity of a manufacturer or private labeler of a consumer product unless certain criteria are met. This often slows the flow of pertinent information from getting to the public. As a result, 6(b) has restrained the CPSC’s ability to proactively disclose safety hazards to the public. Section 6(b) is outdated, anti-consumer, and intended solely to protect the reputation of businesses, including those that put harmful products on the market.

When the CPSC seeks to release information about product safety hazards in which the public can readily identify the product or manufacturer, it must first notify the company and allow it to agree to release the information. If the company objects, and the agency decides to overrule the company and release the information, Section 6(b) gives the manufacturer the right to go to federal court to stop the release, which forces the agency into lengthy and expensive litigation, and further delays the release of safety information to the public. The inevitable result: the CPSC often chooses to instead issue vague warnings that fail to prevent avoidable injuries and deaths or issue little helpful information for consumers.

Section 6(b) frustratingly ties the hands of the CPSC, which has had tragic real-world consequences. Consumer Reports found that the CPSC knew that the Fisher Price Rock ‘n Play and similar products were linked to infant deaths, but failed to inform the public about the risks of these specific products.4  If the agency had sought to “name names,” under existing law, it could have been pulled into protracted litigation, which could have further delayed the release of safety information to parents. Rather than risk these delays, in May 2018, the CPSC issued a “consumer alert”—essentially a press release—that cautioned parents against the hazards of allowing babies to sleep unrestrained in “inclined sleep products.”5  Normally, such a generic name would not provide enough information to a consumer to know that a specific product maybe in their home, but that is especially true for busy, sleep-deprived parents.

The 6(b) provision not only muzzles the CPSC from releasing specific safety information, it prevents journalists, consumer advocates, and government watchdogs from obtaining information about the agency’s unfortunately all too frequent failures in getting dangerous products out of our homes in a timely manner. A Public Citizen report found that 6(b)’s restrictions are time consuming and waste money that could be better spent keeping consumers safe.6

While we will work with Congress to repeal or at the very least reform 6(b), the Commission can play a role in increasing transparency into how often companies invoke 6(b) to prevent the release of critical health and safety information. We urge the Commission to: better track the use of this provision through yearly detailed reports on the number of times 6(b) has been invoked by a company and if that prevented the agency from releasing information; how many times 6(b) litigation has occurred; and whether the same companies repeatedly invoke 6(b) to avoid information disclosures. We suggested in testimony from the last two priorities hearings that the Commission carry out these recommendations. No progress has been made.

The Commission must better use technology to more effectively carry out its responsibilities.

We are pleased that Congress required the Commission to create the Saferproducts.gov database. The database serves a dual purpose. It gives consumers more information to enable them to avoid buying or continuing to use dangerous products. The database also helps close the time gap between a manufacturer learning of a hazard and the information reaching consumers. While we continue to applaud the creation of the Saferproducts.gov, the website can become a more effective tool to avert death or injury to the public, as should the National Electronic Injury Surveillance System database, which collects data on consumer product-related injuries occurring in the United States. These two databases can, and should, be used in tandem to help the Commission understand which products may be more unsafe than others, where product- related injuries are occurring, and in what communities. This, however, would take more funding from Congress in order to create a more useful database.

Public Citizen has continuously urged the Commission to collaborate with technologists and innovators, including those who have experience in the private sector, to implement the recommendations that we have made to the Commission that include a non-exhaustive list of ideas we believe would make Safeproducts.gov more effective.7  We once again urge you to do

Finally, we hope that Sen. Jerry Moran (R-KS) once again introduces the CPSC CIO ParityAct,8 which would require the agency to hire a chief technologist who would help address the important issues discussed above—and hope that the Commission would support the legislation and its passage.

 Commissioners should become stronger advocates for increased agency funding.

The CPSC has jurisdiction over more than 15,000 consumer products. Its staggeringly low budget—at less than $130 million per fiscal year—makes it difficult for the agency’s dedicated staff to carry out its mission. According to Acting Chair Adler, “…every year CPSC deals with more deaths and injuries than NHTSA – or OSHA – or the Mine Safety and Health Administration (MSHA) — or almost any of the other federal health and safety regulatory agencies with bigger budgets than CPSC.”9  That staggering statistic should serve as a wakeup call to every commissioner to strongly advocate for more funding. Without substantially more funding, the agency will continue to struggle to meet all the statutory and regulatory demands the agency faces.

The Commission should promote diversity in its ranks and in its policymaking focus.

A 2008 Government Accountability Office (GAO) report on data collection related to injuries of children of color and how to better assess how to protect them, it concluded that: “Some research suggests that there are racial and ethnic disparities in child death rates due to injuries related to particular consumer products; however, CPSC does not routinely assess whether such disparities exist, primarily because data limitations make it challenging to conduct such analyses.”10  Since that report has been released, it is unclear if the agency has accepted or implemented any of the recommended actions. Since that time, moreover, it is has become even clearer that Black and Brown people have disproportionately lower health outcomes, life expectancies, incomes, and household wealth than whites11—all damning indictments on how society treats Black and Brown people. The CPSC’s complicity in allowing these disparities to continue without addressing them is no better than the rest of society’s failures to do so. The Commission should take heed of the Biden-Harris administration’s commitment to centering racial equity into its policymaking. This should be done in several ways. First, the Commission should show a genuine commitment to listening to impacted communities and creating policies that address those concerns. (That includes meeting people in their communities.) Second, the agency should do more to bring greater diversity in its ranks. Policymaking is informed by lived experiences, and the lived experiences of leadership in the agency is very far removed from the lived experienced of many Black and Brown people. Third, the Commission should urge President Biden to consider diversity in nominating members to the Commission—this should include racial diversity and a commitment to nominating consumer advocates.12

The Commission should work with standard setting bodies to finalize long- standing voluntary standards and promulgate long-delayed mandatory standards.

The Commission is well aware of the impediments placed on the agency requiring it to work with standard-setting bodies to create voluntary standards before it may draft mandatory standards—even though consumers are injured unnecessarily as voluntary standards take years to draft and are often too weak.13  While the Commission cannot unilaterally change this congressional mandate, it can urge voluntary standard-setting bodies to work more quickly to complete voluntary standards. And it can urge Congress to revert the law back to its original language so that the agency may engage in “less cumbersome rulemaking.”14  In addition, Public Citizen agrees with and echoes Acting Chair Robert Adler’s call for the agency to swiftly finalize “mandatory safety standards for infant sleep products, crib mattresses, crib bumpers, clothing storage units, Carbon Monoxide hazards, high-power magnets, as well as Organohalogen Flame Retardants (OFRs), table saws, and window coverings.”15

The below rules, which have the unanimous support of the entire Commission, should be speedily finalized to protect our nation’s infants.

Inclined Sleep Products and Gates and Enclosures

Section 104 of the Consumer Product Safety Improvement Act (CPSIA) required the Commission to promulgate standards for durable infant and toddler products. Public Citizen strongly supports the Commission quickly finalizing the remaining Section 104 standards for infant sleep products and gates and enclosures. While the infant sleep proposed rule was strengthened to limit the incline of infant sleep products to a maximum of 10 degrees for products that are not already addressed by another safety standard, yet it has not been finalized. We are troubled that so much time has passed between the posting of the initial proposed rule and the submission date for the revised proposed rule. During that timeframe, infants have been injured or have died.16

Moreover, we noted in comments submitted by Consumer Federation of America, Consumers Union (now Consumer Reports), Public Citizen, and U.S. PIRG (Consumer Groups) in response to the 2017 notice of proposed rulemaking that “Canada only allows up to a 7-degree angle in their sleep products.”17  While we are heartened that the Commission has accepted Dr. Erin Mannen’s recommendation to prohibit infant sleep products to an incline of no more than 10 degrees, we urge you to not consider your job complete once you swiftly act to finalize that revised proposed rule. We urge the Commission to add to its priorities studying the impact and efficacy of adopting Canada’s more protective standard in order to determine whether further rulemaking is warranted.

The proposed rule for gates and enclosures was primarily developed by ASTM International with input from consumer advocates, industry, and the public. This noncontroversial rule should be immediately finalized.

Crib Bumpers

In 2016, the Commission directed staff to initiate rulemaking for crib bumpers, which was not included in the definition of what is considered a durable infant or toddler product in the CPSIA. In March 2020, the Commission unanimously agreed to advance rulemaking for a final crib bumper safety standard. Public Citizen urges the Commission to quickly finalize this rule.

Conclusion

In the mid-1960’s through the 1970’s, Congress passed monumental consumer protection laws including the Fair Credit Reporting Act, Occupational Safety and Health Act, and Consumer Product Safety Act (which established the Consumer Product Safety Commission). It is no surprise, then, that the era was dubbed the “consumer decade.” Over the past half century, Public Citizen has stood for the public interest in the face of well-resourced corporate opponents and are highly concerned that the ability of companies to stymie the work of the Commission—through processes like voluntary industry-set standards or 6(b)’s secrecy requirements—have kept the agency from fully fulfilling its mission.

The Commission’s work is very challenging at the best of times. Now, however, as the country fights a global pandemic that has kept so many of us home 24/7, keeping consumers safe has become an even more difficult task for the CPSC. While the Commission’s staff work tirelessly to fulfill the agency’s mission, unfortunately partisan politics, personality differences, anemic funding, and the occasional lack of interest from Congress or the executive branch about the agency’s work makes all of the staff’s work even more difficult. The Commission, however, can and must meet the moment by promulgating robust rules and standards to protect consumers, proactively working to get ahead of product safety hazards, and engaging with consumer advocates early and often on issues that they are seeing are problematic.

As Public Citizen—and soon the CPSC itself—mark five decades of work on behalf of keeping consumers safe, we urge the agency to truly assess what it will take for the CPSC to fulfil its mandate, protect consumers and their families from unsafe products, and be a visionary leader at home and abroad for product safety enforcement. We look forward to being a true partner in providing the Commission the tools it needs to more effectively carry out its mission.

Thank you for the opportunity to provide comments and we look forward to continuing to work together to improve consumer safety.