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Product Safety Agency Drags Feet on Critical Rules, Relies on Manufacturers to Police Themselves

March 3, 2008  

Product Safety Agency Drags Feet on Critical Rules, Relies on Manufacturers to Police Themselves

Unfinished Rules at CPSC Have Been Delayed for More Than a Decade, Public Citizen Report Shows

WASHINGTON, D.C. – Seven rules that the Consumer Product Safety Commission (CPSC) has been working on since at least 2004 – two since 1994 – cover hazards that the agency blames for more than 900 deaths and more than $460 million in property damage annually, a Public Citizen report published today reveals.

Public Citizen’s report, “Held Back: Incomplete Consumer Product Safety Commission Rules, Class of 2007,” shows that the CPSC has been working on each rule for an average of nearly a decade (9.6 years) and that, for each rule, an average of nearly six years (5.9 years) has passed since the agency formally initiated the rulemaking process by issuing an Advance Notice of Proposed Rulemaking (ANPR). Governing law requires the agency to produce a final rule within 14 months of adopting an ANPR, a standard the agency has failed to meet in the cases discussed in the report – and which it has met only once since President Bush took office in 2001. Since 1990, the CPSC has completed 38 rules; it has completed just four of those during the Bush administration.

The CPSC’s unfinished rules would reduce deaths, injuries and property damage from hazards such as bed rails, crib slats and baby bath seats that can suffocate, strangle or drown infants; excessively flammable upholstery, bed linens and clothes that are among the leading causes of fire-related death in U.S. homes; and cigarette lighters that, by the CPSC’s own analysis, fail to meet an industry-created voluntary standard at least 60 percent of the time.

Public Citizen’s review confirmed that the CPSC is hamstrung by rulemaking procedures that are far more burdensome than those of most federal agencies – procedures strongly biased toward letting industry regulate itself with unenforceable voluntary standards. The CPSC rulemaking procedure established by Congress during the Reagan era requires the agency to provide double the usual amount of notice and opportunity for public comment, to explain repeatedly why it is not deferring to industry’s voluntary proposals, and to prove that any rule imposes as little burden as possible on industry.

“Voluntary rules are nothing but an industry invention to escape accountability,” said Public Citizen President Joan Claybrook. “Manufacturers shouldn’t be allowed to make up public safety rules to suit themselves. Writing rules is the federal government’s job. The government is supposed to be protecting lives and limbs from the dangers of consumer products. Instead, it is relying on the industry to police itself.”

Moreover, the agency’s procedures call for it to halt any rulemaking if industry creates a voluntary standard that appears likely to address the problem – even though such voluntary standards are unenforceable. Public Citizen’s report shows that industry often frustrates the CPSC’s efforts by strategically adopting voluntary rules, thereby derailing rules addressing hazards implicated in causing suffocation, strangulation or drowning of infants.

These problems point to the need for Congress to alter the law to better enable the CPSC to fulfill its mission of protecting the public from hazardous products.

Whether due to lack of resources or will, the CPSC has consistently failed to overcome the obstacles imposed on it. For example, even though a cigarette lighter association asked the agency in 2001 to create a rule to prevent unsafe lighters from finding their way to the market, the agency has failed to complete a rule more than six years later.

The record is replete with examples of the CPSC missing its own rulemaking deadlines. Agency staff pledged to present for commission approval a final rule to combat flammability of bed sheets and blankets by early 2006. It never did so. The agency later explained that its 2007 efforts on this hazard amounted to continuing “to monitor the progress of California’s efforts” and providing “a draft status report on project related activities.”

In 2003, the CPSC proposed a rule on baby bath seats that have been implicated in infant drownings. In its 2005 annual report, the agency pledged to prepare recommendations for a final rule in 2007. But the agency’s performance reports have not mentioned the rulemaking since.

Regarding the cigarette lighter rulemaking, the agency wrote in its 2007 annual report that its goal for the year had been to “take action as directed by the Commission” – only to note that in 2007 “no activities were directed by the Commission.”

Public Citizen’s report also demonstrates that the agency defers to voluntary standards far more than required – or even permitted – by the law. Although the CPSC must yield to a voluntary standard when it believes the standard is likely to be adequate, it is required in these instances to make a formal statement that it will “rely on” the voluntary standard. This formality at least triggers a minimal reporting requirement for companies that fail to comply with the standard, even though the agency has no authority to fine them or force compliance.

But the agency has relied formally on voluntary standards only twice in its history, deferring to industry informally in hundreds of other instances. The agency informally participated in 390 voluntary rules between 1990 and 2007 and 141 between 2004 and 2007, during which time it created only three mandatory rules.

“We put a man on the moon in less time than the CPSC takes to create a rule,” said David Arkush, director of Public Citizen’s Congress Watch division, which produced the report. “The agency’s rulemaking process would be comical if the results weren’t so tragic.”

READ the report.