[Senate Hearing 116-59]
[From the U.S. Government Publishing Office]
S. Hrg. 116-59
OVERSIGHT OF THE
CONSUMER PRODUCT SAFETY COMMISSION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON MANUFACTURING, TRADE,
AND CONSUMER PROTECTION
OF THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JUNE 20, 2019
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
55-620 PDF WASHINGTON : 2024
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
ROGER WICKER, Mississippi, Chairman
JOHN THUNE, South Dakota MARIA CANTWELL, Washington,
ROY BLUNT, Missouri Ranking
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
CORY GARDNER, Colorado TOM UDALL, New Mexico
MARSHA BLACKBURN, Tennessee GARY PETERS, Michigan
SHELLEY MOORE CAPITO, West Virginia TAMMY BALDWIN, Wisconsin
MIKE LEE, Utah TAMMY DUCKWORTH, Illinois
RON JOHNSON, Wisconsin JON TESTER, Montana
TODD YOUNG, Indiana KYRSTEN SINEMA, Arizona
RICK SCOTT, Florida JACKY ROSEN, Nevada
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Renae Black, Senior Counsel
------
SUBCOMMITTEE ON MANUFACTURING, TRADE,
AND CONSUMER PROTECTION
JERRY MORAN, Kansas, Chairman RICHARD BLUMENTHAL, Connecticut,
JOHN THUNE, South Dakota Ranking
DEB FISCHER, Nebraska AMY KLOBUCHAR, Minnesota
DAN SULLIVAN, Alaska BRIAN SCHATZ, Hawaii
MARSHA BLACKBURN, Tennessee EDWARD MARKEY, Massachusetts
SHELLEY MOORE CAPITO, West Virginia TOM UDALL, New Mexico
MIKE LEE, Utah TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin KYRSTEN SINEMA, Arizona
TODD YOUNG, Indiana JACKY ROSEN, Nevada
C O N T E N T S
----------
Page
Hearing held on June 20, 2019.................................... 1
Statement of Senator Moran....................................... 1
Statement of Senator Cantwell.................................... 3
Statement of Senator Blumenthal.................................. 75
Statement of Senator Capito...................................... 80
Statement of Senator Markey...................................... 84
Statement of Senator Udall....................................... 85
Statement of Senator Rosen....................................... 87
Witnesses
Hon. Ann Marie Buerkle, Acting Chairman, United States Consumer
Product Safety Commission...................................... 4
Prepared statement........................................... 6
Hon. Robert S. Adler, Commissioner, United States Consumer
Product Safety Commission...................................... 7
Prepared statement........................................... 9
Hon. Dana Baiocco, Commissioner, United States Consumer Product
Safety Commission.............................................. 11
Prepared statement........................................... 13
Hon. Peter A. Feldman, Commissioner, United States Consumer
Product Safety Commission...................................... 14
Prepared statement........................................... 16
Hon. Elliot F. Kaye, Commissioner, United States Consumer Product
Safety Commission.............................................. 72
Prepared statement........................................... 73
Appendix
Letter dated June 13, 2019 to Hon. Jan Schakowsky and Hon. Cathy
McMorris Rodgers from Jennifer Loesch, Chief Executive Officer,
BreathableBaby, LLC............................................ 89
Letter dated June 19, 2019 to Hon. Jerry Moran and Hon. Richard
Blumenthal from Marc Rotenberg, EPIC President; and Caitriona
Fitzgerald, EPIC Policy Director............................... 91
Crystal Ellis, Elementary Educator, Parents Against Tip-Overs,
prepared statement............................................. 93
Response to written questions submitted to Hon. Ann Marie Buerkle
by:
Hon. Jerry Moran............................................. 97
Hon. Marsha Blackburn........................................ 99
Hon. Todd Young.............................................. 99
Hon. Ron Johnson............................................. 99
Hon. Maria Cantwell.......................................... 100
Hon. Richard Blumenthal...................................... 101
Hon. Tom Udall............................................... 110
Hon. Kyrsten Sinema.......................................... 111
Hon. Tammy Duckworth......................................... 112
Response to written questions submitted to Hon. Robert S. Adler
by:
Hon. Jerry Moran............................................. 113
Hon. Maria Cantwell.......................................... 114
Hon. Richard Blumenthal...................................... 114
Hon. Tom Udall............................................... 123
Hon. Tammy Duckworth......................................... 124
Response to written questions submitted to Hon. Dana Baiocco by:
Hon. Jerry Moran............................................. 135
Hon. Maria Cantwell.......................................... 136
Hon. Richard Blumenthal...................................... 139
Hon. Tom Udall............................................... 150
Hon. Tammy Duckworth......................................... 151
Response to written questions submitted to Hon. Peter A. Feldman
by:
Hon. Jerry Moran............................................. 152
Hon. Marsha Blackburn........................................ 153
Hon. Ron Johnson............................................. 154
Hon. Maria Cantwell.......................................... 154
Hon. Richard Blumenthal...................................... 156
Hon. Tom Udall............................................... 166
Hon. Tammy Duckworth......................................... 168
Response to written questions submitted to Hon. Elliot F. Kaye
by:
Hon. Jerry Moran............................................. 168
Hon. Maria Cantwell.......................................... 169
Hon. Richard Blumenthal...................................... 176
Hon. Amy Klobuchar........................................... 187
Hon. Tom Udall............................................... 187
Hon. Tammy Duckworth......................................... 188
OVERSIGHT OF THE
CONSUMER PRODUCT SAFETY COMMISSION
----------
THURSDAY, JUNE 20, 2019
U.S. Senate,
Subcommittee on Manufacturing, Trade, and Consumer
Protection,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:30 a.m. in
room SD-562, Dirksen Senate Office Building, Hon. Jerry Moran,
Chairman of the Subcommittee, presiding.
Present: Senators Moran [presiding], Thune, Fischer,
Capito, Young, Blumenthal, Cantwell, Markey, Udall, Sinema,
Rosen.
OPENING STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. Good morning, everyone. The Subcommittee
will come to order.
Welcome to today's oversight hearing on the Consumer
Product Safety Commission.
Thank you to all the Commissioners for being with us today.
I am pleased that we are having an on-time start. We have
votes at 11:30. So there will only be one round of questions.
That does not mean that the witnesses can pretend they do not
have all the answers in the first round of questions, knowing
we will not have a second round. We expect you to answer them
fully and to the best of your ability.
This is an important hearing, and we are glad to have you
all back with us. The Commission is fully formed and five
members.
According to that Commission, deaths and injuries and
property damage from incidents stemming from consumer products
cost the Nation more than $1 trillion. That is an economic
cost. The cost to human beings and lives and families is even
much more and unknowable.
You have a broad mandate to protect consumers from
unreasonable risk of injuries associated with more than 15,000
consumer products, including household products, toys, sporting
goods and more.
The Commission was established by the Consumer Product
Safety Act in 1972 as the jurisdictionally independent agency
charged with enforcing various Federal statutes geared at
protecting consumers.
Central to the Commission's function is its use of
voluntary consumer product standards instead of the
promulgation of mandatory regulations, requirements, when
appropriate. This approach allows the agency to have a
collaborative working relationship with consumer advocacy
groups, manufacturers, importers, retailers, and other
stakeholders, which increases the flow of information for
timely, accurate, and data-driven decisions related to risks
posed to consumers.
While the Commission is a relatively small agency, its
influence is felt across the country and across our economy.
And I look forward to hearing from you today about your
critical initiatives and rulemaking agenda.
In 2017, this subcommittee held a hearing to examine the
effectiveness of the Virginia Graeme Baker Pool and Spa Safety
Act, which was enacted to enhance the safety of public and
private pools and spas, reduce drownings and entrapment
incidents. While this law certainly has had a positive impact
on improving pool safety, the Commission published a report
this past May indicating the total number of drownings in 2016
and the total number of drownings in 2015, including instances
involving very young children. I hope the Commission today will
provide recommendations on what else can be done to prevent
these tragic deaths.
The data-driven mission of the Commission and its efforts
to keep pace with the increasingly technological economy will
continue to be a critical aspect of the agency's effectiveness.
As unauthorized disclosures of confidential information
continue to plague actors in both the public and private
sectors, including the CPSC, heightened attention to ensuring
that resources and staffing are effectively dedicated to
protecting such information is clearly necessary.
For these purposes, the Ranking Member, Senator Blumenthal,
and I introduced the CPSC Chief Information Officer Parity Act,
which will ensure that the agency's top IT expert has a
significant role in the Commission's decisionmaking process for
budgetary and personnel purposes. Additionally, it would
authorize the Commission to bring a chief data officer and a
chief technologist to support such efforts and to protect the
agency's systems from vulnerabilities.
As the Fourth of July approaches, I would like an update
from the Commission on an issue that we have discussed so many
times in a public setting and in private meetings: firework
devices. Again, this is not a Republican or Democrat issue in
regard to consumer safety. We all have something to care about,
and I look forward to hearing how we can assist the Commission
in making thoughtful and policymaking decisions.
Thank you to Acting Chairman Ann Marie Buerkle and
Commissioner Robert Adler, and the other three--and Dana
Baiocco, Peter Feldman, and Elliot Kaye for speaking to the
Subcommittee today on issues that directly impact our nation's
consumers.
Following Tuesday's news of withdrawing her pending
nomination, I would like to thank Acting Chairman Buerkle, in
particular, for her dedicated public service on the Commission
for the past six years and as the Acting Chairman for the past
two and a half years. Her leadership and engagement with this
subcommittee and all stakeholders has been commendable and led
to many significant advancements in consumer product safety.
With that, I will turn to the Ranking Member of the Full
Committee, Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Chairman Moran, for holding
this oversight hearing and for the Commission being here.
The Consumer Product Safety Commission is a small Federal
agency with a huge mission. It is to be the cop on the beat
when protecting consumers from potentially dangerous products.
Time and time again, though, over the last two years, I have
seen a pattern with the Commission where it has deferred to the
industry on critical product safety matters instead of being
more aggressive as a commission.
From the get-go, almost all of the consumer commission's
pending product rulemakings were terminated. For instance,
instead of setting mandatory standards for window blinds to
protect kids from cord strangulation, the Commission deferred
to the industry to set its own standard.
Another rule involved shut-off switches for portable
generators, which are commonly used after power failures caused
by hurricanes or winter storms that we often get in the Pacific
Northwest. These generators propose a carbon monoxide poisoning
risk, and again, the Commission nixed a mandatory standard and
instead asked the Portable Generator Manufacturers' Association
to write their own standards.
But the failures have not just been with the safety
standards intended to protect against dangerous products. Also
the Consumer Product Safety Commission has essentially stopped
imposing civil penalties on manufacturers. The Commission's
most basic mission is to protect consumers from dangerous
products, and I think two recent examples highlight a trend
that I think is very problematic.
The first involved the BOB jogging stroller. The Consumer
Product Safety Commission career staff found a serious defect
in the stroller that allowed the front wheel to detach
unexpectedly. Those wheel detachments resulted in serious
injuries to scores of adults and children. The Commission staff
recommended a recall, and some on the Commission voted to move
forward with a lawsuit against the manufacturer. But instead,
the Commission sought a settlement with the company that
resulted in little more than a public safety campaign and
provided certain consumers with replacement parts. Other
consumers with older models got nothing more than a 20 percent
coupon on the stroller. So this agreement allowed the company
to say that these corrective amount only to an information
campaign when so much was at risk for families.
The second involved the Fisher-Price Rock 'n Play Infant
Sleeper. According to the consumer products report, almost 35
infant deaths have been associated with this product since
2009. But the Commission did not reveal this information until
Consumer Reports blew the whistle and brought it to the public.
So who knows how many more children could have been impacted.
And even if the product was recalled, the Commission found a
way to continue to fail the consumer when the Commission's
recall notice listed just ``refund'' as the remedy for
consumers that return the Rock 'n Roll Play. So consumers with
older Rock 'n Roll Play Sleepers will only get a voucher for
another. And so this is very problematic.
We have a tradition on the Committee of working together to
enact bipartisan legislation to help protect consumers, and the
Consumer Product Safety Improvement Act of 2008, which was
signed into law by President George W. Bush, gave the Consumer
Product Safety Commission substantial new authority to protect
consumers. So going forward, I hope that the White House will
put forth names of people to be on the Commission that are
going to use the authority and put American consumers and our
children first when protecting them with these laws.
I thank the Chairman. I look forward to hearing from the
Commissioners.
Senator Moran. Ranking Member, thank you very much for
joining us today.
Senator Blumenthal is expected. He is in the Judiciary
Committee this morning. He is expected to join us shortly.
Let us begin with the testimony, and we will begin with the
Acting Chairman Ann Marie Buerkle. Thank you.
STATEMENT OF HON. ANN MARIE BUERKLE,
ACTING CHAIRMAN, UNITED STATES
CONSUMER PRODUCT SAFETY COMMISSION
Ms. Buerkle. Thank you. Good morning, Chairman Moran,
Ranking Member Blumenthal, who is not here yet, and Ranking
Member Cantwell, and distinguished members of this committee.
I am pleased to be before the Committee once again to
discuss the good progress being made at the Consumer Product
Safety Commission.
As you know, earlier this week, I announced my intention to
step down as the Acting Chairman and complete only my current
term as a member of the Commission. I feel honored for the
opportunity to have served as a Commissioner for the CPSC since
2013 and as the Acting Chairman for two and a half years. My
respect for this agency, its mission and, most importantly, for
the staff has grown with each and every year I have been with
the CPSC. It has been both a pleasure and a privilege to work
with so many talented and capable individuals.
Throughout my time at the agency, I have led with integrity
and principle, always--always--with our safety mission above
politics. I am incredibly proud of the accomplishments achieved
during my tenure and deeply appreciate the support and
excellent work by the CPSC staff. Together we have taken many
actions that save lives every day, including:
Initiating a multi-pronged approach on strengthening
furniture tip-over safety standards and enforcement;
Eliminating window cords in 80 percent of the market
to prevent child strangulation;
Educating people on the dangers of carbon monoxide
poisoning and facilitating the development of new
portable generator standards, resulting in safer
products being available today as we speak in the
marketplace;
Guided the disbursement of over $2 million in grants
to reduce drownings and pool entrapments;
Approving 14 new or revised mandatory standards,
many of them for children and infant products;
Leading CPSC's effort to address the safety of the
Internet of Things, including the formation of an
interagency working group led by the CPSC;
Jumpstarting a process to improve and modernize
saferpro-
ducts.gov.
In addition, CPSC is better positioned to be effective and
efficient because of the agency-wide improvements made under my
leadership. We have taken steps to modernize the agency both
with data and technological advancements, as well as enhancing
the organization and prioritization of staff as well as
resources. The work we have done and that continues to occur
will help ensure that the CPSC is equipped to succeed in a
rapidly changing global marketplace where the types of products
and how consumers buy and interact with those products is
constantly evolving.
Engagement with our stakeholders has been a priority for
me. I have regular calls with consumer safety groups to
understand and respond to their priorities. They provided
critical suggestions to improve saferproducts.gov. Some of
their suggested changes we were able to make the very next day.
Others we are examining and have put forth funds in our midyear
to fund that project.
To help us better understand the products we regulate, I
have asked staff to hold several tech-to-tech meetings. These
meetings help our staff understand how products work in real
world situations and help regulated industries understand the
concerns of our staff and the issues that manufacturers need to
address.
Finally, no group has been more influential than the
victims and their families that I have met over the years.
Their courage, resolve, and desire to ensure that no other
parent, relative, or loved one has to suffer the tragedy that
they faced has helped me to never lose sight of the importance
of the CPSC's mission and its effect on Americans. The efforts
of parents who have lost children to furniture tip-overs is why
I have called for a tougher standard for these products.
These achievements could not have been accomplished without
the CPSC staff, who are truly the backbone of our agency.
However, they need the proper resources to do their job. As you
have heard me say again and again, CPSC needs more resources.
CPSC's mission has long dwarfed its budget. And I am proud that
my advocacy for the agency has resulted in Congress and this
administration providing increased funding in the House's
current mark of $135.5 million. My hope is that as I depart,
this trend continues and the CPSC's budget is finally able to
be on par with its critical mission.
Following my departure from the CPSC, my hope is that staff
and the Commission will build upon the successes of my tenure
as I have sought to build on the legacies of those who came
before me. I hope my efforts to put politics aside and make
principled decisionmaking will continue, making civility and
robust engagement a priority. And I hope it is an agency that
continues to leverage the expertise and knowledge of our staff
to advance safety measures for consumers everywhere.
My life has always been in advocacy, health care, and
public service. I believe that my time at CPSC has been a
culmination of a lifetime of advocacy. I want to say here this
morning that it has been an honor to serve both the Obama and
the Trump administrations to protect Americans and keep their
families safe.
Thank you again, Chairman Moran, for the opportunity to be
here today, and I do look forward to answering any questions
that you might have. Thank you.
[The prepared statement of Ms. Buerkle follows:]
Prepared Statement of Hon. Ann Marie Buerkle, Acting Chairman,
United States Consumer Product Safety Commission
Good morning, Chairman Moran, Ranking Member Blumenthal, and
distinguished members of the Committee. I am pleased to be before the
Committee once again to discuss the progress being made at the Consumer
Product Safety Commission.
As you know, earlier this week I announced my intention to step
down as Acting Chairman and complete only my current term as a member
of the Commission. I feel honored for the opportunity to have served as
a Commissioner for the Consumer Product Safety Commission since 2013,
and as the Acting Chair for two and half years. My respect for this
Agency, its mission, and most importantly, for the staff, has grown
with each and every year that I have been with CPSC. It has been both a
pleasure and a privilege to work with so many talented and capable
individuals.
Throughout my time with the agency, I have led with integrity and
principle--always with our safety mission above politics. I am
incredibly proud of the accomplishments achieved during my tenure and
deeply appreciate the support and excellent work by the CPSC staff. We
have taken many actions that save lives every day including:
Initiating a multi-pronged approach on strengthening
furniture tipover safety standards and enforcement
Eliminating window cords in 80 percent of the market to
prevent child strangulation
Educating people on the dangers of carbon monoxide poisoning
and facilitating the development of new portable generator
standards, resulting in safer products being introduced into
the market
Guided the disbursement of over $2 million in grants to
reduce drownings and pool entrapments
Approving 14 new or revised mandatory standards, many of
them for children and infant products
Leading CPSC's efforts to address the safety of the Internet
of Things, including the formation of an interagency working
group
Jumpstarting a process to improve and modernize
saferproducts.gov
In addition, CPSC is better positioned to be effective and
efficient because of the agency-wide improvements made under my
leadership. We have taken steps to modernize the agency both with data
and technological advancements as well as enhancing the organization
and prioritization of staff and resources. The work we have done, and
that continues to occur, will help ensure that CPSC is equipped to
succeed in a rapidly changing global marketplace where the types of
products and how consumers buy and interact with those products is
constantly evolving.
Engagement with all stakeholders has been a priority for me and it
has produced results. I have regular calls with consumer safety groups
to understand and respond to their priorities. They provided critical
suggestions to improve saferproducts.gov. Some of their suggested
changes we were able to make the very next day. Others, we are
examining as we develop our plan for updating the site.
To help us better understand the products we regulate, I have asked
staff to hold several tech-to-tech meetings. These meetings help our
staff understand how products work in real world situations and help
regulated industries understand the concerns of our staff and the
issues that manufacturers need to address.
Finally, no group has been more influential than the victims and
their families that I have met over the years. Their courage, resolve
and desire to ensure that no other parent, relative or loved one has to
suffer the tragedy they faced has helped me never lose sight of the
importance of CPSC's mission and its effect on Americans. The efforts
of parents who have lost children to furniture tipovers is why I have
called for a tougher standards for these products.
These achievements could not have been accomplished without the
CPSC staff, who truly are the backbone of our agency. However, they
need the proper resources to do their job. As you have heard me say
again and again, CPSC needs more resources. CPSC's mission has long
dwarfed its budget. I am proud that my advocacy for the agency has
resulted in Congress and this Administration providing increased
funding and resources for the CPSC each year since I've been Acting
Chairman, including the House's current mark of $135.5 million. My hope
is that as I depart, this trend continues and that CPSC's budget is
able to be on par with its critical mission.
Following my departure from CPSC, my hope is that staff and the
Commission will build upon the successes of my tenure, as I have sought
to build on the legacies of those that came before me. I hope my
efforts to put politics aside and make principled decision-making will
continue, making civility and robust engagement a priority. And I hope
it is an agency that continues to leverage the expertise and knowledge
of our staff to advance safety measures for consumers everywhere.
My life's work has always been in advocacy, healthcare, and public
service. I believe that my time at the CPSC has been a culmination of a
lifetime of these experiences and has made the American public safer. I
truly look forward to the next chapter of my life and will continue my
service to community, country and most importantly my six wonderful
children and 18 grandchildren.
It has been an honor to serve both the Obama and Trump
administrations to protect Americans and keep their families safe.
Thank you again for the opportunity to appear here today. I look
forward to answering any questions you may have.
Senator Moran. Chairwoman, thank you for your testimony and
for your public service.
Commissioner Adler.
STATEMENT OF HON. ROBERT S. ADLER, COMMISSIONER, UNITED STATES
CONSUMER PRODUCT SAFETY COMMISSION
Mr. Adler. I am pleased to be here to discuss an agency
that I have been associated with in some fashion since its
opening in 1973 and where I have been a commissioner since
August 2009.
At the outset, I would like to say a few words about my
colleague and friend, Acting Chairman Buerkle. I would like to
thank her for her service in what is often an exceedingly
difficult job, and I would like to commend her for her grace
under pressure. Of course, my affection and respect for her do
not mean that she and I share the same regulatory philosophy or
view of policy approaches. Far from it. But I think she is an
excellent role model for disagreeing without being
disagreeable, and her fair and respectful treatment of staff
serves as an example for us all.
Turning to my remarks, CPSC is far and away the smallest
health and safety agency in the Federal Government with the
current funding level of just $127 million and a staff of 539
FTEs. Let me put our budget in perspective. Our sister agency,
FDA, recently asked for an increase in its budget--increase in
its budget--that is five times what our entire budget is.
Notwithstanding our modest budget, our jurisdictional
scope, as the Chairman said, is extremely broad, encompassing
roughly 15,000 product categories.
This October will mark the 47th anniversary of the passage
of the landmark Consumer Product Safety Act. Looking back, I
believe that Congress and the agency should take great pride in
what we have accomplished, especially given the immense scope
of our mission.
Among our many achievements, I would like to note the
dramatic drop over the years in death and injuries to children
from consumer products. To say the least, that does not mean
our work is done, but I think it does mean we have made major
progress.
Despite this progress, I must caution that much of our work
has been stymied by several statutory roadblocks. When the
agency was established in 1973, we promulgated numerous
critical safety rules dealing with hazards that ranged from
flammable children's sleepwear, shattering glass panes, and
unsafe toys, and we did it under the traditional rulemaking
approaches in the Administrative Procedure Act. By my count,
the agency wrote 24 safety rules in its first 8 years, or about
three per year.
In 1981, however, Congress imposed a set of cumbersome
procedures on CPSC that have had the effect of stalling and
lengthening our rulemaking efforts. And here is the statistic.
In the following 38 years since 1981, we have managed to eek
out only 10 safety rules under these procedures, and that is
about one every 3 and a half years versus three per year. And
we have really written only one safety rule using these
procedures in the past 10 years.
Let me be blunt. I have little doubt that lives have been
lost and injuries incurred because of these delays in our
rulemaking with no particular improvement in the quality of the
standards that we write.
While I am discussing parts of the statute that I would
like to see reformed, I also must mention the onerous
information disclosure restrictions under which CPSC must
operate. I refer to the provisions of section 6(b). Unlike any
other Federal health and safety agency, when CPSC wants to warn
consumers about a particular hazard associated with a company's
product, we first have to run our press release past the
company to see whether they have any objections to it. And
especially in recalls, that means companies can object to our
proposed hazard warning, can threaten to sue us unless staff
waters down the release. So just imagine a product where a
dozen consumers have died and the company does not want us to
include that fact in the release, and then put yourself in the
shoes of staff who need to balance a timely warning against the
threat of delays brought about by litigation. And you can see
the dilemma that staff is often faced with, and I think you can
see we have a problem.
I would like to mention one final point in my testimony,
and that is a concern I have about a vulnerable group, of which
I am a proud member, and that is senior citizens. We make up
about 13 percent of the population, but we account for roughly
65 percent of consumer product-related deaths. And we are a
rapidly growing demographic. Far and away, the greatest
product-related hazard for seniors is falls. That is about 75
percent of the fatalities that we suffer. We also suffer
disproportionately from fires. Seniors are nearly four times as
likely to die in a home fire as the general population. And
there are numerous other products where seniors suffer
disproportionate injuries and death. With these statistics in
mind, I urge you to consider measures that would help with the
serious challenges that seniors face in the coming years.
Thank you very much for your attention, and I look forward
to any questions you have.
[The prepared statement of Mr. Adler follows:]
Prepared Statement of Hon. Robert S. Adler, Commissioner,
United States Consumer Product Safety Commission
Good morning Chairman Moran, Ranking Member Blumenthal, and the
members of the Subcommittee on Consumer Protection & Commerce. Thank
you for the opportunity to testify today along with my fellow CPSC
Commissioners. I am pleased to be here to discuss an agency that I have
been associated with in some fashion since its opening in 1973--and
where I have been a Commissioner since August 2009.
At the outset, I would point out that CPSC is far and away the
smallest of the Federal health and safety agencies, with a current
funding level for FY 2019 of $127 million and a staff of 539 FTEs. To
put our budget in perspective, I note that for FY 2020, our official
budget request is also for $127 million. By way of comparison, our
sister agency, FDA, recently asked for $6.1 billion dollars for FY
2020, which represents a $643 million increase over its FY 2019 budget
request. In other words, FDA's request for an increase is more than 5
times CPSC's entire budget.
Notwithstanding CPSC's modest budget, our jurisdictional scope is
extremely wide, encompassing roughly 15,000 categories of consumer
product found in homes, stores, schools, and recreational settings.
Given this broad jurisdiction, the agency has adopted what I believe to
be a thoughtful, data-based approach using its technical staff to
figure out which products present the greatest risk and which are most
susceptible to corrective measures. And, we address them using our
regulatory and educational tools in a way designed to minimize market
disruption while always making consumer safety our top priority.
Of course, the CPSC does not operate alone on product safety. We
have always sought to make CPSC's various stakeholders partners in our
quest to reduce or eliminate unreasonable risks. Included in this group
are our friends in the consumer and business communities as well as the
various standards development bodies that work with the agency.
This October will mark the 47th anniversary of the passage of the
landmark Consumer Product Safety Act (CPSA). Looking back, I believe
Congress and the agency should take great pride in what the agency has
accomplished, especially considering the immense scope of our mission.
What has the agency accomplished? As a starting point, I would cite
the estimated 30 percent reduction in the rate of deaths and injuries
associated with consumer products since the agency's inception. Of
course, not all of this drop can be directly attributed to agency
actions, but a lot of it can. And, I would particularly point to the
dramatic drop in death and injuries to children. Let me highlight just
a few of the many improvements in safety:
An over 80 percent drop in childhood poisonings,
An over 70 percent drop in crib deaths,
An almost 90 percent reduction in baby walker injuries, and
An almost complete elimination of childhood suffocations in
abandoned refrigerators.
We have also seen dramatic drops in fatal electrocutions,
residential fire deaths, and traumatic injuries from lawn mowers. In
short, CPSC has produced an excellent return on investment. By our
calculation a number of years ago, this drop in deaths and injuries has
resulted in well over $16 billion in reduced societal costs--which is
many times the resources the CPSC has been given to do its job. And, as
a tiny agency, we have produced these benefits at a very low cost.
One further point: What makes these reduced injuries and fatalities
so dramatic to me is that they occurred during a period when the
population in the U.S. jumped from 220 million to 330 million--a
roughly 50 percent increase. Drops in deaths and injuries this big in
the face of a growing population represent a major step forward in
safety.
I would also like to mention the tremendous strides the agency has
taken to implement the Consumer Product Safety Improvement Act of 2008
(CPSIA) in the ten-plus years since its passage. Among the actions we
have taken:
Enforcing stringent limits on lead and phthalates in
children's products,
Promulgating the strongest safety standard for cribs in the
world,
Implementing rules of the new CPSIA requirement that firms
have independent laboratories conduct third party testing of
children's products before introducing them into the U.S.
market,
Making mandatory a comprehensive toy standard, ASTM F-963,
Writing, and continuing to write, a series of standards--I
believe the count is now 20--for durable infant products such
as play yards and strollers, and finally,
Developing new approaches to stopping dangerous imported
products before they are sold to U.S. consumers.
While I'm thrilled with our implementation of the CPSIA, I would
simultaneously, with some frustration, point out the broad disconnect
between the effectiveness of our rulemaking under CPSIA and our
rulemaking under the infinitely more cumbersome procedures found in the
other acts we enforce.
Let me briefly explain: When the agency was first established in
1972, we promulgated numerous critical safety rules dealing with
hazards such as flammable children's sleepwear, dangerously shattering
glass panes, and unsafe toys under the traditional rulemaking
approaches found in section 553 of the Administrative Procedure Act. By
my count, the agency wrote about 24 safety rules in its first 8 years--
or about 3 per year. In 1981, however, Congress imposed numerous
cumbersome provisions requiring new steps and findings on CPSC
rulemaking that had the effect of stalling and lengthening our
rulemaking efforts.
In the following 38 years, although we have promulgated a
significant number of standards under the streamlined procedures in
CPSIA (alas applicable only to a small subset of products we regulate),
we have managed to eke out only 10 safety rules under these revised
procedures--or about 1 every 3 \1/2\ years. What's of greater concern
is that we have written only one safety rule using these procedures in
the past 10 years.
To be blunt, I have little doubt that lives have been lost and
injuries incurred unnecessarily because of these delays in our
rulemaking.
I would love to report that these cumbersome provisions of CPSA
have resulted in dramatically improved safety rules that justify the
extra time and effort in drafting them. Frankly, I cannot do so. For
the most part, the quality of safety standards has remained unchanged--
only the timeliness has changed. So, nothing would delight me more than
to see Congress permit us to return to writing important safety rules
under the time-honored, traditional provisions of the Administrative
Procedure Act.
While I'm discussing features of the Consumer Product Safety Act
that I'd like to see reformed, I must also mention the onerous
information disclosure restrictions under which the CPSC alone among
all health and safety agencies in the Federal government must operate.
I refer to the provisions of section 6(b) of the CPSA. Unlike any other
health and safety agency, when the CPSC receives a request for
information in its files under the Freedom of Information Act (FOIA),
if a manufacturer's identity can be ascertained from the information in
our files, we cannot simply respond with the information. Instead, we
must first send the manufacturer the file for comments on the accuracy
and fairness of releasing the information, process any comments the
manufacturer submits, and determine whether or not to release this
information in light of those comments. All of this done, I might add,
with the looming prospect of being sued if the company doesn't like
what we're about to disclose.
On this point, I have heard the comment that the threat of
litigation is not a serious concern because very few lawsuits to enjoin
CPSC information disclosure have actually been filed and that companies
prefer to negotiate more agreeable versions of press releases rather
than go to court. I have two responses to this argument. First, saying
that concerns about litigation are minor is akin to saying that
countries should not worry about nuclear weapons since they are not
used. The fact, however, is that the threat is sufficient to alter
behavior. Second, I have little doubt that companies prefer to
negotiate more agreeable versions of press releases. Therein lies the
problem. What is more agreeable to a firm is likely to be a watered
down version of a notice to the public of a serious safety hazard.
Companies may be happy, but consumers end up at greater risk.
Moreover, what's so frustrating about this process is that it
applies to almost anything in our files even if we are simply a
repository of the information--like a library. If, for example, we have
obtained a simple list of 50 firms that make widgets and someone makes
a FOIA request for the list, we must send out 50 different copies of
the list with 49 names blanked out to each of the identified
manufacturers and process each one's response to the list. No other
agency in the government has to follow such time-consuming and costly
procedures. Each year, we must spend hundreds of thousands of dollars
and delay sometimes for months or longer the release of information
because of 6(b).
Let me be clear: I am not endorsing an approach in which the agency
is free to disseminate inaccurate or unfair information willy-nilly.
Any time CPSC initiates a disclosure of information that identifies a
manufacturer, I think we ought to inform them of our intention to do so
and permit them to point out any problems with this information
disclosure. Other agencies have been doing this effectively for many
decades without serious problems. What I object to is having the
government play data nanny to information that the public desperately
needs in order to protect itself.
As a final point, I would like to share a concern I have about an
often vulnerable group of which I am a proud member: senior citizens.
Unfortunately, seniors do not necessarily get as much attention as they
probably should. I say this because seniors are one of the fastest
growing demographics in the country. Specifically--
Roughly 40 million people in the U.S. are age 65 or older.
This number is projected to more than double to 89 million by
2050.
By 2030, one in 5 people in the U.S. will be 65 or older.
The U.S. currently contains more people age 65 and older
than the entire population of Canada.
Today, the ``oldest old''--those 85 and older--have the
highest demographic growth rate in the country. This group now
represents 10 percent of the older population and will more
than triple in number by 2050.
On the good news front, I can report that recent studies show that
we're not only living longer, we're also living healthier. So, if we're
to extend our lives as healthier adults, we also need to spend these
years as safer ones. But, here the news is not so good. Although
seniors currently make up about 13 percent of the population, we
account for roughly 65 percent of consumer product-related deaths.
Far and away the greatest product-related hazard for seniors is
falls--comprising roughly 3/4 of the fatalities that we suffer.
According to CDC, every 19 minutes a senior dies from a fall. Moreover,
roughly one in four seniors in the U.S. reports falling each year. In
fact, every year, 3 million people, including many seniors, go to an
emergency room for injuries from falls, and 800,000 are hospitalized.
And, for reasons that are unclear, CDC reports that fall fatalities
have increased dramatically in recent years--up 31 percent from 2007-
2016.
Another serious hazard to seniors is fires. Fires in homes
constitute an extremely serious problem for seniors. CPSC staff report
that almost 400,000 residential fires occur annually, resulting in
roughly 2,400 deaths, 12,500 injuries, and over $7 billion in property
loss. And, the U.S. Fire Administration estimates that adults age 75-84
are nearly four times as likely to die in a home fire as the general
population, while those over age 84 are nearly five times as likely to
die.
In addition to these concerns, I should mention that there are a
whole host of consumer products that harm all users, but
disproportionately injure and kill seniors. Here are some of the
products that do so:
Chairs, sofas, and sofa beds
Power tools
Gardening equipment
Ladders
Carpets and rugs
With these statistics in mind, I urge you to consider measures that
would help with the serious challenges that seniors face in the coming
years as American ages.
I look forward to working with my colleagues and the members of
this Subcommittee as we focus on our mission to protect citizens from
risks of unreasonable injury or death.
Thank you for this opportunity to share my views.
Senator Moran. Thank you, Commissioner.
Commissioner Baiocco.
STATEMENT OF HON. DANA BAIOCCO, COMMISSIONER, UNITED STATES
CONSUMER PRODUCT SAFETY COMMISSION
Ms. Baiocco. Good morning, Chairman Moran.
Senator Moran. Good morning.
Ms. Baiocco. Thank you for inviting me to this hearing.
I think it is a very big responsibility to discuss with all
of you the performance of the agency and, indeed, a frank
evaluation of the agency's performance is the first step to
ensuring that the agency is operating effectively, given the
complex and fast-paced issues in today's consumer product
safety world.
The agency can and must do more to facilitate its mission
in this global economy. First, we must enhance the agency as a
whole to better serve the consumer. To do this, the Commission
must commit immediately to three investments that will make the
agency more nimble and effective. One is improved equipment.
Two, additional and specialized personnel to revamp the
agency's technology, data capabilities, and hazard
identification systems. So, Chairman Moran, your proposed bill
with Senator Blumenthal is a welcome piece of legislation. And
third, we need a more robust plan for testing and evaluating
emerging technologies and the products in general.
Given the speed with which products enter the market, the
ease with which they get directly into consumers' homes, and
the complexity of the global supply chain, which includes
products that do not comply with our safety rules and
standards, real action must be taken to keep this agency
relevant. We must transition the CPSC into a forward-looking
agency rather than a reactive one.
To illustrate, there is a great demand right now for the
production of more sustainable products. To the extent that
``sustainable'' includes recycled or reusable products, the
agency must ensure that this demand does not indirectly undo
safety advancements that the agency has worked long and hard to
achieve. The agency should be studying now and not reacting
later to such pitfalls.
Second, the agency must be purposeful in its regulatory
activities. Rulemaking, of course, is the key to the CPSC's
charge, but the agency must do a better job with this
authority. When the agency promulgates a safety rule, it should
do so swiftly and decisively, have a sound legal basis and
scientific reason to do so. It serves no purpose to force a
rule that does not solve or at least adequately address the
hazard. All agency actions must be credible, rationally related
to the hazard before it and consistent with the rule of law.
The commission should not support any process that merely meets
an arbitrary and capricious standard.
Third, the CPSC should be the gold standard in engineering,
testing, and problem solving. Our engineers must be more
solution-oriented and empowered to solve problems
affirmatively. Our compliance team should accept and capitalize
on opportunities where industry is willing to share sound
testing results and road maps for successful programs that the
CPSC does not yet have. An ``us versus them'' mentality will
impede good engineering solutions and interfere with strong
stakeholder relationships.
Since joining the CPSC, I have worked on some individual
initiatives designed to contribute to the agency's mission. For
example, I have pushed for and the agency now has a mobile-
friendly recall app. This simple, inexpensive initiative is
just one way the agency is closing the gap between the way it
works and the way today's consumer operates. Communication is a
major key to success.
My office is also committed to working with the e-commerce
community to develop better ways of patrolling the varying
platforms of noncompliant goods. I have opened discussions with
several e-commerce hosts about direct recall notice, data
sharing, and ways to better liaise with experts who are
studying consumer behavior that the agency may benefit from.
Another initiative focuses on counterfeit products. My
research has revealed that knock-offs and other brand copy-cat
products make up a deep pool of noncompliant goods that pose
real safety risks. The agency's import surveillance team, small
as they may be, are working extremely hard and quite
effectively to stop the inflow of these noncompliant products.
The individuals working daily at our nation's ports have
developed an excellent and critical relationship with their
U.S. Customs and Border Protection colleagues to accomplish a
lot on this front. The agency should allocate more resources to
these efforts so that they may expand on that good work.
My goal as a commissioner is to ensure that the CPSC is
employing the best practices in all that we do. It has been a
challenging and rewarding opportunity to serve the American
public as a commissioner, and I appreciate this opportunity to
testify and to discuss, going forward, how the agency can
achieve its mission.
On a personal note, I would like to join Chairman Moran and
my colleagues in thanking and congratulating Ann Marie Buerkle
on her contributions to the CPSC. She is a committed and
dedicated public servant and has served all of us with
distinction. Her greatest accomplishment, however, has been the
respect and admiration she has received from every staff member
at the CPSC. Ann Marie, congratulations.
[The prepared statement of Ms. Baiocco follows:]
Prepared Statement of Hon. Dana Baiocco, Commissioner,
United States Consumer Product Safety Commission
Good morning, Chairman Moran, Ranking Member Blumenthal, and
Members of the Senate Subcommittee on Manufacturing, Trade, and
Consumer Protection. Thank you for inviting me to this hearing and for
providing all of the CPSC Commissioners with the opportunity to appear
before you today. It is a great responsibility to discuss the status of
the Agency. A frank evaluation of the Agency's performance is the first
step to ensuring that the Agency is operating as effectively as
possible given the complex and fast-paced issues in today's consumer
product safety world.
The Agency can and must do more to facilitate its mission in this
global economy. First, we must enhance the Agency as a whole to better
serve the American consumer. To do this, the Commission must commit
immediately to three investments that will make the Agency more
efficient, nimble, and effective: (1) improved equipment; (2)
additional and specialized personnel to revamp the Agency's technology,
data capabilities, and hazard identification systems; and (3) a more
robust plan for testing and evaluating emerging technologies and
products in general.
Given the speed with which new products enter the market, the ease
with which they get directly into consumers' homes, and the complexity
of the global supply chain, which includes products that do not comply
with our safety rules and standards, real action must be taken to keep
the Agency relevant. We must transition the CPSC into a forward looking
Agency rather than a reactive one.
To illustrate, there is a great demand for the production of more
``sustainable'' products. To the extent that ``sustainable'' includes
recycled or reusable products, the Agency must ensure that this demand
does not indirectly undo safety advancements that the Agency has worked
long and hard to achieve. The Agency should be studying now, and not
reacting later, to any such potential pitfalls.
Second, the Agency must be purposeful in its regulatory activities.
Rulemaking, of course, is a key part of the CPSC's charge but, the
Agency must do a better job with this authority. When the Agency
promulgates a safety rule, it should do it swiftly and decisively, and
have a legally sound and scientific reason to do so. It serves no
purpose to force a rule that does not solve, or at least effectively
address, the hazard. All Agency actions must be credible, rationally
related to the hazard before it, and consistent with the rule of law.
The Commission should not support any process that merely meets an
``arbitrary and capricious'' standard.
Third, the CPSC should be the gold standard in engineering,
testing, and problem solving. Our engineers must be more solution-
oriented, and empowered to solve product hazards affirmatively. Our
compliance team should accept and capitalize on opportunities where
industry is willing to share sound testing results and roadmaps for
successful programs that the Agency does not yet have. An ``us versus
them'' mentality will impede good engineering solutions and interfere
with strong stakeholder relationships.
Since joining the CPSC, I have worked on some individual
initiatives designed to contribute to the Agency's mission. For
example, I have pushed for, and the Agency now has, a mobile-friendly
recall app. This simple, inexpensive initiative is just one way the
Agency is closing the gap between the way it works and the way today's
consumer operates.
My office is also committed to working with the e-commerce
community to develop better ways of patrolling the varying platforms
for non-compliant goods. I have opened discussions with several e-
commerce hosts about direct recall notice, data-sharing, and ways to
better liaise with experts, who are studying consumer behavior so that
the Agency may benefit from this information pool.
Another initiative focuses on counterfeit products. My research has
revealed that ``knock-off,'' and other brand copy-cat products make up
a deep pool of non-compliant goods that pose real safety implications.
The Agency's import surveillance team, small as they may be, are
working extremely hard, and quite effectively, to stop the inflow of
these non-compliant products. The individuals working daily at our
Nation's ports have developed excellent and critical relationships with
their Custom and Border Protection colleagues to accomplish a lot on
this front. The Agency should allocate more resources to these efforts
so that they may expand that good work.
My goal as a Commissioner is to ensure that the CPSC is employing
best practices in all that we do. I recommend that the Commission
conduct an in-depth, internal review of the Agency's staff directives
and procedures to identify and enhance areas that need improvement.
That review, in my opinion, is essential to the integrity and core
functioning of the Agency.
It has been a challenging and rewarding opportunity to serve the
American public as a CPSC Commissioner. Thank you for this opportunity
to testify before you and for your good work on this Subcommittee. I
look forward to answering your questions today and, I am always
available to discuss in more detail my comments regarding the Consumer
Product Safety Commission in general and my perspectives, goals, and
ideas for fulfilling the Agency's mission.
Senator Moran. Thank you, Commissioner.
Commissioner Feldman.
STATEMENT OF HON. PETER A. FELDMAN, COMMISSIONER, UNITED STATES
CONSUMER PRODUCT SAFETY COMMISSION
Mr. Feldman. Thank you and good morning.
I want to begin my remarks this morning by thanking
Chairman Moran, Ranking Member Blumenthal, and the members of
the Subcommittee for providing me this opportunity to appear
before you today.
I also want to thank the dedicated career staff at CPSC who
are the lifeblood of our agency and who are at the front lines
of our efforts to protect American consumers.
It has been a great privilege to serve under the leadership
of Acting Chairman Buerkle as a commissioner on CPSC since my
confirmation last October. I want to echo the sentiments
expressed here today. Ann Marie has a long career of public
service that extends far beyond her work at the Commission,
including her work as a nurse, an assistant attorney general, a
Member of Congress, and above all, an advocate for American
children and families. It has been a pleasure to work with her
over the years, and she will certainly be missed by everybody
at the agency.
I am relatively new to CPSC and previously served as Senior
Counsel under Chairman Thune on the Senate Commerce Committee.
So in that respect, it is good to be back.
As a Senate staffer, I worked directly with many of you on
oversight matters, including oversight of CPSC. And therefore,
I understand the important function that hearings like this
serve. I also come to the agency with a deep understanding of
the congressional intent behind the statutes governing the
agency, its duties, and its limitations under the law.
I am pleased to see some new faces behind the dais. Senate
Commerce is a special committee with broad legislative
jurisdiction and stewardship over our Federal independent
agencies like CPSC that are charged with protecting consumers
and advancing American prosperity through trade, innovation,
and a vibrant manufacturing sector. I look forward to working
with all of you going forward, and I hope I can be a resource
to you and your staff.
When I last testified before the House Energy and Commerce
Committee, I was asked an important question. Is CPSC
fulfilling its mission? My overall view is that the Commission
is doing many things well. There are areas in which we are
making progress, but there are also others where we could be
doing more to protect the American consumers from dangerous
products.
As a Commissioner, my priority is to advance the agency's
safety mission through inclusiveness and compromise. In the
short time I have been at the agency, I am most proud of the
opportunities that I have had to collaborate with my fellow
commissioners on bipartisan solutions. These include bipartisan
support to increase the agency's transparency in the form of an
open meeting to discuss the agency's budget request, the first
such meeting in recent memory and a tradition that I hope we
will continue. Along with Commissioner Baiocco, we have
advanced a number of amendments with bipartisan support,
including efforts to strengthen the agency's data collection
expertise, prioritize enforcement of the Child Nicotine
Poisoning Prevention Act, and accelerate a mandatory standard
to protect children from furniture tip-overs. More work is
needed, but I am encouraged by this forward progress.
During my confirmation hearing in June of last year, I laid
out a number of priorities to this committee that I felt would
achieve the Commission's goal of protecting consumers from
unreasonable risks of dangers associated with consumer
products. These include modernizing the Commission's data
collection and processing capabilities to identify emerging
hazards and to support the agency's enforcement, standards, and
regulatory work. I testified that the Commission must rethink
its market surveillance capabilities, especially with respect
to e-commerce and new and emerging distribution models. As a
general matter, CPSC must advance safety through engagement
with safety groups and the regulated community with
transparency and clarity about its expectations.
These remain critical priorities and necessary to advance
CPSC's mission, and our work here does remain ongoing. To
further the goal of modernizing the Commission, I am excited
that CPSC is leading the creation of an interagency working
group, along with our sister agencies, FCC, FTC, FDA, DOT,
NIST, and others to tackle issues pertaining to the Internet of
Things and connected devices. The agency also took recent steps
to identify unobligated agency funds to create an IoT research
lab at our National Product Safety Testing Center in Rockville,
Maryland. While this process is still in its early stages, it
is an exciting development, and I see it as a necessary
development and investment in the agency's knowledge and
understanding of the new technologies that are increasingly
integrated in the products that consumers demand.
More can be done to close the agency's skills gap with
respect to emerging technologies in consumer products. I am
pleased that the agency voted, for example, to accept our
proposal to hire a Chief Data Officer, but more work remains to
ensure that the position is funded and implemented
appropriately. I believe that the Commission should explore the
creation of a Chief Technologist to expand staff expertise, as
many of our sister agencies have done successfully.
To further the goal of transparency, I maintain an open
door and encourage all stakeholders to share their concerns
with me. This invitation applies cross the board to consumer
groups, trade groups, legislators, companies, and individual
consumers.
I have urged staff to work to implement the new regulations
that we are working on expeditiously. I will continue to do so.
But in closing, I look forward to our efforts to keep
American consumers safe through bipartisan and collaborative
solutions.
Thank you again, Mr. Chairman, for the opportunity to
appear before you today.
[The prepared statement of Mr. Feldman follows:]
Prepared Statement of Hon. Peter A. Feldman, Commissioner,
United States Consumer Product Safety Commission
Good morning. I want to begin my remarks by thanking Chairman
Moran, Ranking Member Blumenthal, and the members of the Subcommittee
on Manufacturing, Trade, and Consumer Protection for providing me this
opportunity to appear before you today.
It has been a great privilege to serve, under the leadership of
Acting Chairman Buerkle, as a Commissioner of the United States
Consumer Product Safety Commission (CPSC) since my confirmation last
October. I am relatively new to the agency and previously served as
senior counsel to Chairman John Thune on the Senate Committee on
Commerce, Science, and Transportation. It's good to be back.
As a Senate staffer, I worked directly with many of you on CPSC
oversight matters and therefore understand the important function that
hearings like this serve. I also come to the agency with a deep
understanding of the congressional intent behind the statutes governing
the agency, its duties, and its limits under the law.
I am pleased to see new members behind the dais. Senate Commerce is
a special committee with broad legislative jurisdiction and stewardship
over the independent Federal agencies like CPSC that are charged with
protecting consumers and advancing American prosperity through trade,
innovation, and a vibrant manufacturing sector. I look forward to
working with you going forward and hope I can be a resource to you and
your staff.
When I last testified before the House Energy and Commerce
Committee, I was asked an important question. Is the Consumer Product
Safety Commission fulfilling its mission? My overall view is that the
Commission is doing many things well. There that there are areas in
which we are making progress, but there are also others in which we
could be doing more to protect American consumers from dangerous
products.
As a Commissioner, my priority is to advance the agency's safety
mission through inclusiveness and compromise. In the short time I've
been at the agency, I am most proud of the opportunities I have had to
collaborate with my fellow commissioners on bipartisan solutions. These
include bipartisan support to increase agency transparency in the form
of an open meeting to approve the agency's budget request, the first
such meeting in recent memory, and a tradition I hope we will continue.
Along with Commissioner Baiocco, we have advanced a number of
amendments with bipartisan support, including efforts to strengthen the
agency's data science expertise, prioritize enforcement of the Child
Nicotine Poisoning Prevention Act, and accelerate a mandatory standard
to protect children from furniture tip overs. More work is needed, but
I am encouraged by this forward progress.
During my confirmation hearing in June of last year, I laid out a
number of priorities to this Committee that I felt would achieve the
Commission's goals of protecting American consumers from unreasonable
risk of danger. These include modernizing the Commission's data
collection and processing capabilities to identify emerging hazards and
to support the agency's enforcement, standards, and regulatory work. I
testified that the Commission must rethink its market surveillance
capabilities, especially with respect to e-commerce and new and
emerging distribution models. As a general matter, the CPSC must
advance safety through engagement with safety groups and the regulated
community with transparency and clarity about its expectations.
These remain critical priorities necessary to advance CPSC's
mission, and our work remains ongoing. To further the goal of
modernizing the Commission, I am excited that the agency is leading the
creation of an interagency working group, along with the FCC, FTC, FDA,
DOT and NIST, to tackle issues pertaining to the Internet of Things and
connected devices. The agency also recently took steps to identify
unobligated agency funds to create an IoT research lab at our National
Product Testing and Evaluation Center in Rockville, MD. While this
process is ongoing, it is a step in the right direction. I see this as
a necessary investment in the agency's knowledge and understanding of
emerging technologies integrated into the products that consumers
increasingly demand.
More can be done to close the agency's skill gap with respect to
new and emerging technologies in consumer products. While I am pleased
that the agency voted to accept our proposal to hire a Chief Data
Officer, more work remains to ensure the position is funded and
implemented appropriately. I also believe the Commission should explore
the creation of a Chief Technologist to expand staff expertise, as many
of our sister agencies have done.
To further the goal of agency transparency, I maintain an open door
and encourage all stakeholders to share their concerns with me. This
invitation applies to consumer groups, trade groups, legislators,
companies, and individual consumers. I have also worked to stress the
importance of the Commission's independent Inspector General and to
highlight the numerous, important recommendations that remain
outstanding. I have urged staff and the Commission to work to implement
these expeditiously and will continue to do so.
In closing, I look forward to continuing our efforts to keep
American consumers safe through a bipartisan, collaborative and
forward-looking agency. Thank you again, Mr. Chairman, for holding this
important hearing and for your work to protect consumers. I look
forward to this important discussion and responding to members'
questions.
______
ADDENDUM 1
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ADDENDUM 2
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Senator Moran. Commissioner Feldman, welcome back to the
Commerce Committee.
Now Commissioner Kaye.
STATEMENT OF HON. ELLIOT F. KAYE, COMMISSIONER, UNITED STATES
CONSUMER PRODUCT SAFETY COMMISSION
Mr. Kaye. Good morning, Chairman Moran, Ranking Member
Blumenthal, Senator Udall. Thank you for holding this critical
oversight hearing of the United States Consumer Product Safety
Commission.
As my colleagues have said, the CPSC is a tiny agency
compared with our sister Federal health and safety agencies.
Accordingly, we run a lean operation and provide an excellent
return on investment.
When the CPSC is at our best, we are using our limited
resources and our full authorities as a Federal regulatory
agency to drive both voluntary and mandatory standards
development to make consumers safer.
When the CPSC is at its best, we are leading the charge to
end persistent hazards such as furniture tipping over and
killing young children, infants suffocating in unsafe sleep
environments, and toddlers strangling on dangerous window
covering cords.
When the CPSC is at our best, we are promptly trying to
recall dangerous products. We are using our litigation
authority when necessary. We are assessing and pursuing civil
penalties, as appropriate, to deter bad actors.
When the CPSC is at our best, we are anticipating safety
problems with emerging technological innovations.
I believe that the CPSC and our outstanding staff can do
all these things. I have seen them do it, and whether you have
seen it too, we are all safer because of the CPSC staff.
But even at our best, we still need help. For that, we
desperately need additional authorities and adequate funding.
While this is not an exhaustive list, we need revisions to
our statutes to eliminate unnecessary hurdles to developing
mandatory safety standards. We need enhanced authorities to get
dangerous products recalled and off the market quickly. We need
additional authorities so we can assess fines at our ports to
prevent violative and defective products from reaching the
stream of commerce. And we need the anti-consumer safety, anti-
transparency requirements of section 6(b) of the CPSA to be
eliminated so we can provide the public with vital product
safety information in a timely manner. As I stated during our
House oversight hearing earlier this year, people die because
of section 6(b). It is that simple.
We also desperately need more resources. I know this is not
an appropriations hearing, but our current budget of $127
million is just not enough. It is truly amazing to me how
under-funded consumer product safety actually is.
With Congress' support for additional authorities, adequate
funding, and continued robust oversight, we can stay true to
our safety mission.
Before closing, I do want to commend CPSC Acting Chairman
Ann Marie Buerkle for her years of dedicated service to the
American people. She has spent her entire life in service to
others. While we differ greatly on policy and government
philosophy, we have always agreed on the importance of
representing the agency and its great staff with civility. I
look forward to continuing to work with her in the months to
come and continuing to call her a lifelong friend.
Thank you again for the invitation to speak to you about
the CPSC and the lifesaving work undertaken by our staff. I
look forward to answering any questions you may have.
[The prepared statement of Mr. Kaye follows:]
Prepared Statement of Elliot F. Kaye, Commissioner,
United States Consumer Product Safety Commission
Good morning, Chairman Moran, Ranking Member Blumenthal and Members
of the Subcommittee. Thank you for holding this critical oversight
hearing and for inviting us to speak about the important work of the
United States Consumer Product Safety Commission (CPSC or Commission).
I am pleased to be here with my friends and colleagues: Acting Chairman
Buerkle and Commissioners Adler, Baiocco and Feldman.
Today, we are representing the work of approximately 550 dedicated
CPSC career staff. I am truly honored to work with them and my fellow
Commissioners in furtherance of the CPSC's mission of saving lives and
protecting the public from unreasonable risks of harm associated with
consumer products.
The CPSC is tiny compared to our sister Federal health and safety
agencies, such as the U.S. Food and Drug Administration or the National
Highway Traffic Safety Administration. Our budget has hovered around
$127 million the past few years. Accordingly, we run a lean operation
and provide an excellent return on investment considering our
increasingly complex global economy with billions of consumer products
entering commerce each year.
Every day our actions affect the lives of all Americans, whether
they realize it or not. From a child sleeping in her crib, to the toys
that she plays with, to the smoke and carbon monoxide alarms that warn
her parents of imminent danger, to the child- resistant packaging that
keeps her from getting into poisonous medicines and household cleaners,
we take very seriously our jurisdiction and its accompanying
responsibility to keep consumers safe.
When the CPSC is at our best, we are using our limited resources
and our full authorities as a Federal regulatory agency to drive both
voluntary and mandatory standards development to make consumer products
safer. We are funding innovative safety research, writing effective
testing protocols and driving much safer product designs to market.
When the CPSC is at its best, we are leading the charge to end
persistent hazards such as furniture tipping over and killing young
children, infants suffocating in unsafe sleep environments and toddlers
strangling on dangerous window covering cords. To that end, I have
published a statement that outlines the steps necessary to end ten of
the most persistent consumer product safety hazards that continue to
take lives and devastate families.\1\
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\1\ See my statement on persistent hazards at: https://
www.cpsc.gov/s3fs-public/Commissioner
%20Kaye%20Consumer%20Product%20Safety%20Persistent%20Hazards%20Paper%20%
20April%
202019%20%28Final%29_0.pdf?BB56H79uwkQ6dDVAa4bjSlfmIlJkOio.
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When the CPSC is at its best, we are addressing hazards associated
with exposures to classes of toxic chemicals in toys, art supplies,
kitchenware, playgrounds, clothing, furniture and household
cleaners.\2\
---------------------------------------------------------------------------
\2\ For one example of the importance of the CPSC's work on chronic
hazards, see my statement on organohalogen fire retardants: https://
www.cpsc.gov/s3fs-public/Commissioner_Kaye_State
ment_on_Organohaloen_Fire_Retardants_Petition_9.20.17.pdf?caGuQ1LWIZyZBw
qIgZwED0EpF
IDVtCjQ.
---------------------------------------------------------------------------
When the CPSC is at our best, we also are concurrently using our
enforcement authorities aggressively and appropriately to robustly
enforce our existing laws and regulations and to keep unsafe products
out of the marketplace. We are promptly seeking recalls for dangerous
products, with comprehensive and consumer-friendly recalls and
corrective action plans.\3\ We are using our litigation authority when
necessary. We are assessing and pursuing civil penalties as appropriate
to deter bad actors from selling recalled goods and failing to report
to us as required under Section 15(b) of the Consumer Product Safety
Act (CPSA). And, we are creating a level playing field and an
environment where good actors can thrive. We do this by enforcing
safety-oriented standards and working to remove from the market the
products of those few bad actors who do not have safety in mind.
---------------------------------------------------------------------------
\3\ See my statement on the six basic principles of consumer-
friendly recalls at: https://www.cpsc.gov/about-cpsc/commissioner/
elliot-f-kaye/statements/statement-of-commissioner-elliot-f-kaye-on-
consumer.
---------------------------------------------------------------------------
When the CPSC is at our best, we are prioritizing our presence at
the ports and are working with our partner agencies both domestically
and internationally to stop violative or unsafe products from entering
the stream of commerce.
When the CPSC is at our best, we are anticipating safety problems
with emerging technological innovations. We are able to keep pace with
the global expansion of the Internet of Things and to stay ahead of the
potential effects on consumer safety from all aspects of the market for
networked products.\4\ We are dedicating resources to research and
understand high-energy density battery technology to prevent batteries
from combusting and harming people and their property. We are keeping
abreast of and promoting safety in fast-moving tech trends, such as
electronic rideshare scooters.
---------------------------------------------------------------------------
\4\ See my paper setting forth a framework for safety across the
Internet of Things at: https://cpsc.gov/s3fs-public/
A_Framework_for_Safety_Across_the_Internet_of_Things_1-31-2019_0.pdf?1
KJ.t4Tn04v9OtEBr2s0wyLAP.KsuuQ3.
---------------------------------------------------------------------------
When the CPSC is at its best, we give careful thought to special,
vulnerable populations, such as children and senior citizens.
I believe that the CPSC and our outstanding staff can do all of
these things. I have seen them do it, and whether you all have seen it
too, we are all safer because of the CPSC staff.
But even at our best, we still need help. Even our best is
sometimes not good enough to prevent some deaths and injuries. For
that, we desperately need additional authorities and adequate funding.
While this is not an exhaustive list, we need revisions to our
statutes to eliminate unnecessary hurdles to developing mandatory
safety standards. We need enhanced authorities to get dangerous
products recalled and off the market quickly. We need additional
authorities so we can assess fines at our ports to prevent violative
and defective products from reaching the stream of commerce. And, we
need the anti-consumer safety and anti-transparency requirements of
Section 6(b) of the CPSA to be eliminated so we can provide the public
with vital product safety information in a timely manner. As I stated
earlier this year during our hearing before the U.S. House of
Representatives Committee on Energy and Commerce, people die because of
Section 6(b). It is that simple.
We also desperately need more resources. When Congress last
reauthorized our agency in 2008, it voted overwhelmingly to
incrementally increase our funding levels annually, authorizing our
budget at approximately $136 million for Fiscal Year 2014. We have yet
to be funded at that level despite our budget justifications.
I know this is not an appropriations hearing, but our current
budget of $127 million is just not enough. At every budget cycle, we
cut important and meaningful projects that could ultimately save lives
and decrease the pain and suffering of millions of American families
because there is just not enough money to do everything that needs to
be done.\5\
---------------------------------------------------------------------------
\5\ See my statement and amendment to the CPSC's FY 2020 Budget
Request to Congress: https://cpsc.gov/about-cpsc/commissioner/elliot-f-
kaye/statements/Statement-of-Commissioner-Elliot-F-Kaye-on-the-Fiscal-
Year-2020-Performance-Budget-Request-to-Congress.
---------------------------------------------------------------------------
We lack funding for anything more than the most basic research and
demonstration projects. We lack funding for adequate coverage of
dangerous products coming into the country through our ports. We lack
funding to adequately monitor online sales channels. We lack funding to
maintain our data infrastructure so it operates smoothly and securely
well into the future. We lack funding for timely fulfillment of FOIA
requests. We lack funding to recruit and to retain talented
investigators, enforcement officers, engineers, scientists, economists,
communication specialists, lawyers and support staff.
It's truly amazing to me how underfunded consumer product safety
actually is. It's kind of sad, really. It is also totally unnecessary.
With Congress' support for additional authorities, adequate funding
and continued robust oversight, we can stay true to our safety mission.
Thank you, again, for the invitation to speak to you about the CPSC
and the life-saving work undertaken by our staff. I look forward to
answering questions you may have.
Senator Moran. Commissioner, thank you.
We have been joined by the Ranking Member. I am going to
ask him if he has an opening statement to present, and then we
will go to questions and answers.
Senator Blumenthal.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thank you, Chairman Moran, and thank
you for your understanding and my absence due to a Judiciary
Committee meeting with votes on judicial nominees. And I am
very pleased to be here and thank the Commissioners for being
here as well, and thanks for the opportunity to give this
opening statement.
As a number of you have remarked, the CPSC is, indeed, a
small agency with a small budget, but enormous
responsibilities. And I agree completely that that budget
deserves more support. It literally can make a difference
between life and death for countless of our citizens and
particularly our children.
I am deeply concerned about inaction and mishandling of
complaints that I have seen on a number of product safety
issues, especially involving the deaths of infants. In my view,
the CPSC may be making a habit of sitting on evidence of
dangerous and deadly products and taking action only after
there is widespread media coverage and ensuing public outrage.
I will give you an example.
Only thanks to Consumer Reports and the journalists there
did the public learn of the Fisher-Price Rock and Play dangers
and the 32 babies that have died since the product was first
introduced in 2009. The Consumer Products Report revealed
nothing that was not already known to this agency. They knew
about the product killing babies. They had all the data on
these deaths. And during this hearing, I would like to know why
the CPSC, in effect, remained inert and inactive, did nothing
on these data for so long. Kids In Danger, a national nonprofit
dedicated to protecting children, released a report earlier
this year that found the number of recalls has reached a record
low since it first started tracking this data in 2001.
So I worry about the products that are out there right now
that the public has no knowledge of and pose dangers to
children and others. What would normally be called a recall,
which is a term the public well understands, are now being
replaced with euphemisms like an information campaign. That
term is confusing to the public who do not understand all of
the meaning of those terms of art, even though they may have
meaning to the CPSC.
And so that is what has happened in the case of the
defective BOB jogging strollers. They have resulted in reports
of babies being flipped over, bashing their teeth on curbs, and
bleeding from injury.
Too often the CPSC now settles for inadequate voluntary
standards that do nothing to protect consumers. And these
voluntary standards are crafted with gigantic loopholes. They
benefit the industry. They are based on unsubstantiated data.
Another example. The new voluntary standard for window
coverings creates a confusing dichotomy in which stock window
coverings must meet standards that protect children from the
risk of strangulation, but custom window coverings do not have
to meet that standard. So the industry claims that it covers 80
percent of the market. I am skeptical about the market data
supporting it.
What we see time and time again is that, in fact, the
industry is driving the standards, the conversation, the
debate, and in effect, setting those standards. And they will
cut corners and go the cheapest route, leaving consumers
vulnerable.
And that is why when it comes to protecting our most
vulnerable in setting agreements for infant sleep products, I
believe that they should be consistent with the longstanding
recommendation by medical experts and pediatricians that babies
should only sleep on firm, flat surfaces with no extra bedding.
I introduced the Safe Sleep Act of 2019 that would ban the
sale, manufacture, and import of infant inclined sleep products
that may pose dangers.
And finally, I am concerned with the CPSC giving
manufacturers and retailers a free pass, cutting back on civil
penalties and setting them too low to create a meaningful
deterrent threat. Last year, under Acting Chair Buerkle, the
CPSC issued only three civil penalty settlements, down from six
in 2016 and 2017.
In short, consumers trust the CPSC to do its job, which is
to keep dangerous products off the market. They believe that a
product will not be sold online or store shelves if it is not
safe. If the CPSC fails in its responsibility, consumers are
betrayed.
I look forward to making sure that the CPSC remains a
strong watchdog for all Americans, especially our youngest and
most vulnerable. Thank you.
Senator Moran. Ranking Member, thank you very much.
I will remind folks we have votes beginning at 11:30. I am
going to hold myself and every member to the 5-minute rule.
And I am interested in both specific kind of consumer
issues, but I also think that we sometimes fail, in the quest
of pursuing the things that we are most interested in, to look
at the broader picture about the structure of the agency. So I
am happy to have that conversation during this question and
answer period.
I want to start with one for you, Chairman Buerkle, that I
have had conversations, since coming to the Senate, about
fireworks. The Fourth of July is around the corner. I have been
interested in the rulemaking efforts, the standard
determination, the so-called ``ear test'' that has been
controversial and inconsistent in its application. And so I
would just want to give you the opportunity to update me and
the Committee on the agency's activities with respect to
fireworks.
Ms. Buerkle. Thank you, Senator Moran.
Yes, the fireworks NPR is still up before the Commission,
and unfortunately, we do not have consensus among the five
Commissioners as to how to proceed. And so the choices would be
to bring it up and perhaps have it be defeated. I think there
is some feeling among the Commissioners that does not address
safety issues, that some of the issues in it--the platform,
yes, but other aspects of the proposed rule do not.
And I think the issue for industry is the uncertainty as to
how we are going to proceed. I have talked about this with many
Members of the Senate and the concern with regard to the
uncertainty about a way forward. We can bring it up. Possibly
it would be defeated, but then there would be certainty that
nothing new will be happening until we perhaps propose another
NPR, another rule, that would allow us to maybe robustly
address the safety hazards.
Senator Moran. So is that decision pending as to whether to
bring it up?
Ms. Buerkle. Yes. We can bring it up. We can bring it up at
any time, and the Commission could have a decision, a public
meeting to discuss it. But the concern I have heard from some
of my colleagues is that it really does not affect safety and
so why promulgate the rule.
Senator Moran. It has interested me. Just since yesterday,
I have had two Senators reach out to me about this topic.
Interest in this has grown.
And the failure to bring up and pass or defeat that
proposal--what is the status of the regulation of the industry
today?
Ms. Buerkle. Today the proposed rule is just that. It is a
proposed rule. It has not been finalized, so the status quo
remains.
Senator Moran. Chairman Buerkle, let me ask a follow-up
question unrelated to this topic but to you. I understand that
you requested that the CPSC's Office of Inspector General
investigate the facts surrounding the unauthorized disclosure
of information from the Commission's National Injury
Information Clearinghouse. While that investigation remains
ongoing, will you please explain what steps the Commission has
taken to identify and correct issues that led to this
disclosure, including any consultation with outside experts and
law enforcement?
Ms. Buerkle. Thank you, Senator Moran, for this opportunity
to talk about an issue that really the agency has taken very,
very seriously.
What we currently are referring to is an inadvertent
disclosure. Unfortunately, some of the safeguards--a second
pair of eyes was not laid on and reviewed the outgoing
information. That has been changed. Ever since we became aware
of this issue, it goes through our FOIA Office where there is a
higher level of scrutiny. There were also some changes in
personnel at the time that the disclosure began, as well as a
change in software. I think all of those contributing factors
resulted in this very unfortunate situation.
The agency has made it a priority to get to the bottom of
it, and, yes, the IG is doing a very thorough investigation. We
look forward to his findings and a determination as to whether
or not we need to proceed and perhaps refer it elsewhere for
some criminal activity.
Senator Moran. Will you confirm to me that you will keep me
and this subcommittee informed of the developments?
Ms. Buerkle. Absolutely. I have made it clear to staff that
I am available at any time to come up here and brief in person
or to have conversations. But it certainly is something that I
am committed to and I would be more than happy to do that.
Senator Moran. Thank you very much.
Commissioner Baiocco, at the Commission's recent midyear
meeting, you introduced a measure to enlist support from other
Federal agencies, including the FBI and the DOJ, to assist with
a response and investigation into the unauthorized disclosure.
Why do you feel that outside help is necessary?
Ms. Baiocco. The CPSC is in over its head on this type of
situation. As we have all talked earlier, we are a small agency
with limited resources. We are still trying to get our arms
around our own data. This was a large disclosure that I am not
convinced was inadvertent. The little bit of information I have
been able to look at I have not been able to link the
information that went out the door with requests for the
information. So I wanted that to be looked into a little bit
more. And I did not believe that the agency, A, had enough
time, B, had enough experience, or C, had a staff that had
expertise in this area.
Senator Moran. Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman, and thank you
for bringing up this issue of wanting to have a broader
discussion, as well as focused-in discussion. And I would just
point out that I think when the Commission comes before the
Committee, even though I certainly believe in a very robust
subcommittee level--anytime the Commission comes before this
Committee, it should come before the whole committee.
These are issues of mammoth importance to consumers, and we
need to make sure they are getting the attention of an
opportunity of everybody on this committee to participate, not
that people could not show up if they are not on the
Subcommittee. But this is about the bright light of day, and we
want to make sure that that is known at least from our
perspective.
To the BOB stroller issue, we requested documents further
explaining why the Commission did not recall the stroller. And
in the information we received back, the Commission knew of
almost 200 incidents related to the stroller, including some
serious injuries because of the front wheel detachments.
We have also learned that in late September, the CPSC's
Office of Compliance staff did a presentation listing a litany
of injures that could occur as a result of the defective
stroller and stated that the Commission should push for a
recall. So we know the rest of the history that that did not
happen.
So I want to get to the Commission--you know, I am all for
the latest and greatest technologies. I am all for consumers
having more information. But there is a difference between
pushing and pulling and how you get information out to people
and when you need to do a recall.
So, Commissioner Kaye, do you think this information
campaign remedy was a good enough protection for consumers?
What else should we have been doing?
Mr. Kaye. Thank you, Senator.
No, I did not. I put out a statement with my colleague,
Commissioner Adler, at the time explaining our concerns to the
point you are making that consumers were not being given a full
remedy. They were not being given the kind of information that
they needed.
I thought an excellent proof of why this was such a failure
and that we had recognized ahead of time it would be a failure
was reported by the Washington Post when one of the retailers
that was required to receive notice under the agreement had
been sent an e-mail by the company, apparently looked at it,
and decided since it did not have the word ``recall'' in it, it
was not worth doing anything about. And that was exactly what
we were concerned about: people were going to push this to the
side. And I just did not think if safety was truly the
company's priority, that this was an action indicative of
trying to protect its own customers.
Senator Cantwell. Commissioner Adler, did you want to add
anything to that?
Mr. Adler. I concur completely with Commissioner Kaye. The
idea of calling something that is truly a recall that has
corrective action aspects to it an education campaign and
hiding deeply within the information that was sent to consumers
is what we called aggressively misleading. And it was very
unfortunate, and I am sure it is one of the reasons that this
recall is turning out to be less successful.
One of the other concerns that we had was these are
products that were on the market for roughly 18 years, but the
recall, as disguised as it was, only addressed about 6 years.
So why two-thirds of the products were left----
Senator Cantwell. Well, this is why that challenge is if
you are not clear and you are not precise and you do not get
the information out to the consumer by saying that it is that
serious, then it is very problematic. I am not saying that
there are not ways to increase communication, but we should be
very clear about what the rule is.
So what happened in May 2018, the Commission released a
vague alert about the deaths involved in the sleeper products
for infants. There were 32 deaths related to that. Can you tell
us what went wrong? Are there other defect products that you
are aware of that the Commission is not notifying the public
on?
Mr. Adler. Well, I would take a first address at that. And
part of the problem, honestly, is section 6(b). We cannot just
simply say we have got this number of deaths associated with
the product. We have to consult with the company. We have to
make a determination, if the company is resistant, that the
public health and safety advance an immediate notice.
So part of it was that. I think part of it was--and I blame
myself in part for this. There was not as much of the
recognition of this growing problem. And I really want to
commend Commissioner Kaye for being a strong voice about
pursuing the issue. And if it had not been for him, I do not
think I would have paid as much attention. So I give him a lot
of credit for that.
Senator Cantwell. Commissioner.
Mr. Kaye. Sure. Thank you, Senator. I am happy to answer
that as well.
I think, frankly, we failed the American public on this
one. I would say by early 2017, a critical mass of deaths had
come to our attention. Yes, it is true that 6(b) certainly was
a factor in us not reporting, but I think we could have even
done a lot then despite the constraints of the law.
Senator Cantwell. Thank you.
Thank you, Mr. Chairman.
Senator Moran. You are welcome.
Senator Capito.
STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM WEST VIRGINIA
Senator Capito. Thank you, Mr. Chairman.
And thank all of you for serving and for the testimony here
today.
Chairman Buerkle, I would like to ask again about the
recent data breach. Can you explain how the agency has worked?
I mean, I know you have explained this before the Committee,
but if you could explain one more time how the agency has
worked to resolve this, and specifically who did the CPSC
contact following the breach? Have you consulted and worked
with other agencies throughout this process? And have you been
able to determine if the entities who received unauthorized
data have taken appropriate steps to destroy that?
Ms. Buerkle. Thank you, Senator Capito.
The disclosure issue, as I was recounting to Senator Moran,
has been taken with the utmost seriousness by the agency.
The Executive Director and her staff prioritized and did
various stages as to how they were going to handle this. The
immediate concern was stopping any more breaches, which they
did immediately, and they changed the process. So now any
requests go through the FOIA Office, which has the expertise
needed. It will be reviewed by lawyers.
The Department of Justice was contacted almost immediately
because we were concerned about our remedies in clawing back
the information that had been disclosed. And I am very pleased
to say of the 36 entities that information was disclosed to, 30
have certified destruction of that information, and one large
disclosure is pending. That certification is pending. So we
have gotten back much of the information that was disclosed
inadvertently.
I want to emphasize something about the Inspector General
and his investigation. That is not the CPSC. There is some
confusion that that is CPSC doing their own investigation. The
Inspector General is doing an independent investigation apart
from any of the CPSC staff. It is delving into this issue. I
believe he has the expertise at this point to complete his
investigation to make sure and to be able to tell us what are
the appropriate next steps or whether it was truly inadvertent.
But to call in someone else--it is not that I am opposed to
that. I think right now, the Inspector General has to do what
he does best, and that is a thorough investigation.
Thank you.
Senator Capito. Thank you.
I have a question. We have a rural state, and I am always
carping about in this committee and others about our lack of
broadband connectivity, but a lot of us have this issue in our
states.
As you are looking at recalls and product warnings, how do
you meet that challenge of an elderly population, people buying
used products a lot or trading products for other things, and
the lack of connectivity? Are you relying on that? So I will
just kind of open it up to the panel. And, Mr. Feldman, do you
have a comment on that?
Mr. Feldman. I appreciate the question, and I understand
the concern that you are raising.
We know that direct notice recalls are the most effective
recall, where a manufacturer or a retailer is able to reach the
consumer directly and provide information about a health and
safety notice----
Senator Capito. Through however method, letter, whatever.
Mr. Feldman.--through letters, through e-mails.
But I understand how the connectivity issue in a rural
state complicates that. We have been taking a look at
additional technologies like blockchain to improve the
traceability of products through the supply chain from
manufacturer to retail to secondary market. That is probably
somewhat a ways off but would offer a huge benefit with respect
to traceability and the ability to figure out exactly who has a
product at any given time to be able to effect that direct
notice. But in the meantime, it remains a challenge relying on
traditional modes of communication.
Senator Capito. Does anybody else have a comment?
Ms. Buerkle. If I could. We have an Office of
Communications, and for instance, one of the things we just
did--Senator Moran, you raised the issue of drowning. I spent
half of a day doing interviews that will reach millions of
people across the country, both radio and television. We do
organized campaigns to get the word out because, to your point,
not everyone has connected or has connectivity. And so we must
rely on more traditional ways of getting information out.
Senator Capito. Did you want to speak to that?
Ms. Baiocco. I did. Thank you, Senator Capito.
I am actually from the Ohio Valley. I was born in West
Virginia, grew up right across the river in Yorkville. So I am
very familiar with the area.
And I think that you raise a couple very good points on the
secondary sales, the resales. I mean, that is the neighborhood
that we are from.
Senator Capito. Right.
Ms. Baiocco. So I think having the recall--everybody works
on their phone now. Even my mother has a phone and an iPad and
so forth. So getting a recall app together where the CPSC can
actually ding somebody who has the information and say, hey,
this has been recalled I think is very important. But that
needs to be expanded.
I would also like to see the CPSC have a full complement or
department, if you will, of people who--you know, whether it is
the old-fashioned way, pick up the phone and call Mary's resale
shop in Wheeling and say, hey, do you have this product and it
has been recalled. I mean, I do think we could use a small army
of people who are reaching out in as many ways as possible
because now we are in a situation where we have different types
of markets. We have different types of resale, third party
platforms, and so forth. They run the gamut. So I would like to
see us put a little bit more effort into that.
Senator Moran. Thank you.
Senator Blumenthal.
Senator Capito. Thank you.
Senator Blumenthal. Thank you, Mr. Chairman.
Chairman Buerkle, was the CPSC aware of the infant
fatalities involving the Fisher-Price Rock 'n Play product
before Consumer Reports published its data?
Ms. Buerkle. Absolutely, sir. A report or a story certainly
is not what generates a recall at the CPSC. It is an issue the
agency has been working on. We were aware of deaths since 2009.
They began to pick up 2011. So this actually occurred somewhat
before my time as Chairman.
However, we immediately, with the Executive Director and
her office in Compliance, worked very diligently once this
issue became, as someone mentioned, the critical mass where it
came to the point where we needed to do something.
We put out a generic warning at that time to begin to
address this issue and to hopefully get the parties to the
table that we were serious about addressing the hazards with
inclined sleepers.
Senator Blumenthal. Is there any Commissioner who was not
aware of these deaths? And why did you not warn earlier?
Ms. Buerkle. Well, there was----
Senator Blumenthal. What is a critical mass of infant
deaths?
Ms. Buerkle. The issue was complex because of the
mitigating factors, if there was an unsafe sleep environment,
as you are raising with your Safe Sleep Act, pillows, blankets
in the crib. Some of the babies were compromised, but it was
identifying what the hazard was. And when we did--it is a
multi-pronged process, and I do think that we are headed in the
same direction as your Safe Sleep Act.
Senator Blumenthal. Did section 6(b) prevent the CPSC from
acting sooner?
Ms. Buerkle. I do not believe so. I think that we took
immediate action once it got to the point where it did. And it
is a multi-pronged approach. We will be terminating the
proposed rule that exists right now for inclined sleepers. I
hope my colleagues will join me in getting that rule terminated
immediately so we can turn it around and begin rulemaking on
the product that will address the hazard that you are speaking
of.
Senator Blumenthal. With regard to the Safe Sleep Act, when
it comes to establishing standards for infant sleep products,
can you commit that you will support standards that are
consistent with the best practices agreed on by consumer
advocates and experts?
Ms. Buerkle. Yes. I have had conversations with both Nancy
Cowles and others in the safety community, and I know exactly
their feelings and their beliefs of how they should be
addressed. And I believe we are headed in that direction.
Senator Blumenthal. Do you not agree that the public is
better informed when you use the word ``recall'' rather than
``information campaign''? They have no idea what an information
campaign is, especially when products are sold secondhand on
the Internet.
Ms. Buerkle. I think that you are absolutely correct. A
recall is certainly clearer than an information campaign.
However, our recalls--mostly all of our recalls are voluntary.
And so whenever we put out a press release, it has to be the
parties have agreed to this press release and the language in
it.
In the Britax situation, the decision was made we need to
get this information out, and rather than suing it and be in
prolonged litigation as we had been in other cases, the magnets
case in particular, where the consumer ends up with no remedy--
--
Senator Blumenthal. But the lawsuit itself is a warning to
consumers. Correct? It is a public act in effect saying this
product is unsafe.
Ms. Buerkle. But it is not clear. It certainly raises the
issue, but it is not clear to the consumer what their remedy is
and a lawsuit does not provide any remedy to the consumer.
Senator Blumenthal. It eventually can provide remedies, but
the lawsuit itself sends a signal. When you allege as the CPSC
that a product is unsafe, that is much more informative and
dramatic to consumers than saying that this company has an
information campaign. Would you not agree?
Ms. Buerkle. I agree except for the concern of the agency
is to get unsafe products out of the marketplace. In the
magnets case, that case was sued, and for six and a half years,
we had no remedy for the consumer and the product exists in the
marketplace to this day. And so the concern with Britax or any
other product where we have identified an issue with it, how we
can get that out of the market quickest and away from the
consumer to avoid any additional injuries or incidents is
really the goal.
Senator Blumenthal. I have a great many other questions,
which I am going to put in writing for a written response.
Ms. Buerkle. Thank you, Senator.
Senator Blumenthal. But let me just finish with one
question.
Three years have passed since the CPSC, in coordination
with the EPA and the CDC, said it was going to study crumb
rubber. When will that study be done?
Ms. Buerkle. I can only speak for our agency, and we are
moving along. What we were charged to do with playgrounds, the
study is done, and we will be getting a report.
And if I could just make a pitch at this point to our
budget because what you are addressing is a chronic hazard. We
generally address acute hazards. We have talked today about
emerging hazards, and another issue that we have are chronic
hazards. We need additional funding. We would take on the crumb
rubber issue, but we need to have the funding to be able to do
so.
Senator Blumenthal. Are you saying that another agency is
delaying it, not yourself?
Ms. Buerkle. So it was a joint project with CDC, EPA, and
CPSC, and the CPSC has completed our very small part of it,
what we were charged to do.
Senator Blumenthal. Thank you.
Ms. Buerkle. Thank you, Senator.
Senator Moran. I do not think the vote has been called, but
we have about 10 minutes for the rest of the four members of
the Committee who are here. So Senator Markey is next. I do not
know what that will do on how this story ends.
[Laughter.]
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Mr. Chairman.
The enforcement decisions that this Commission has made
over the last few years, particularly as they relate to
children's products, gravely concerns me. Instead of issuing
recalls to protect the public, CPSC has increasingly relied on
voluntary settlement agreements, and it has not even tracked
whether the companies that have entered into these settlement
agreements are adhering to them. Instead of levying civil
penalties against bad actors, CPSC has been turning a blind eye
to their wrongdoing. And instead of finalizing mandatory safety
standards, CPSC has continued to kick the can down the road,
allowing products like dangerously inclined infant newborn
sleepers to proliferate.
Today Senator Blumenthal and I have asked the GAO to look
into these and other enforcement-related issues.
Chairwoman Buerkle, since 2012, the CPSC has been aware of
spontaneous crashes caused by the popular BOB jogging stroller
made by Britax, crashes resulting in broken bones, torn
ligaments, and smashed teeth. After months of investigating,
the CPSC staff recommended the stroller be recalled. And in
2018, the Commissioners voted in support of that recall with
you, Chairwoman Buerkle, being the lone dissenter.
After the CPSC shifted to a Republican majority, the
Commission drastically changed its position. Instead of a
recall, it decided on a voluntary settlement agreement with the
stroller company, which centered on a one-year public safety
campaign.
We are now almost halfway through the year. What evidence,
Madam Chair, do you have that this information campaign has
adequately addressed the hazard?
Ms. Buerkle. Sir, if I could, I would just like to correct
the record. It was not a recall that I voted against. It was a
lawsuit because the company refused to do a recall. And the
recalls that we do at CPSC, for the most part, are voluntary.
We reach an agreement with the company to get that product, as
quickly as we can, out of the consumers' hands to avoid any
additional injuries or deaths. So it was a lawsuit that I voted
against.
And again, as I recounted to Senator Blumenthal, the
interest that I have is keeping the consumers safe, and the way
we keep the consumers safe is to get the products out of the
market and then to provide an adequate remedy to them. And
having only sued one other case since I have been at the agency
and no remedy has been given to the consumer----
Senator Markey. Do you think the information campaign is
working, or does more need to be done?
Ms. Buerkle. That was only part of the settlement
agreement. There were other components to it. One was to make
other changes to the stroller and replace the bolts. I would
say that the settlement is in the process of continuing to work
out. They have agreed to give us monthly reports. So we will
know how effective it has been.
Senator Markey. Let me go to you, Commissioner Kaye. Are
you concerned that not addressing this defect will mean the
proliferation of other similarly designed and problematic
jogging strollers will be out on the market?
Mr. Kaye. Thankfully, Senator Markey, we have not seen
that.
But I do think that, to your earlier question, that as
anticipated by Commissioner Adler and me, that this education
campaign would be a total debacle. I think that that has played
out, and I think consumers have been very poorly served by it.
And I have seen zero evidence that what has been done to date
has been even remotely effective.
Senator Markey. In September 2018, the Children's Product
Team in the Division of Defect Investigations was eliminated.
This would be the team responsible for studying the alleged
defects in the jogging strollers and inclined sleepers that
killed over 30 newborns.
Chairman Buerkle, why was this team of children's experts
abolished?
Ms. Buerkle. Senator Markey, the compliance organization
was long overdue for a reorganization. The people who do any
testing or determination as to whether or not there is a
substantial product hazard--many of those are under EXHR,
Hazard Identification. We are not part of this reorganization.
But our compliance director felt that he needed stronger people
in charge of these various defect and regulated organizations
within his compliance department.
Senator Markey. Mr. Chairman, can I just ask Commissioner
Kaye? Did you agree with the decision to eliminate this team of
experts?
Mr. Kaye. Well, ultimately the decision was made by the
chair, and this is under the purview of the Chair. And if I
could quickly answer, I would say that I was less concerned
about the change in the name of the organization that people
were working under and how they were organized, and far more
concerned about the change in culture, Senator Markey, with
compliance of how the deference to industry became the driving
factor of their work.
Senator Markey. And that is what you think now
characterizes the area where these experts on children's issues
now resides?
Mr. Kaye. I think they are still doing their same work.
They are just doing it under a different name. But I do think
the culture of the agency has changed in my experience from one
that was driven hard to try to take these products off the
market to making sure that industry was not upset with whatever
is being done.
Senator Moran. Senator Udall.
Senator Markey. Thank you.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Mr. Chairman.
And, Chairman Buerkle, your agency plays a significant role
in each of our daily lives. I appreciate the hard work of the
agency staff to make sure that the products we use are safe,
particularly products used by children or products that can be
misused by children. Making sure our children are safe must be
a top priority for the CPSC.
Unfortunately, in my view current leadership of the agency
has failed to live up to its statutory obligations to safeguard
our children from harm. These failures sadly will cost
children's lives and wellbeing.
Commissioner Feldman, I am concerned that as of May 31,
there have already been 1,722 incidents of exposure to
electronic cigarettes or liquid nicotine reported to poison
control centers. That is over 340 calls per month compared to
an average of 263 monthly calls last year. Those figures are
frightening.
As you know, liquid nicotine is highly toxic when ingested
or absorbed through the skin. During your time working for this
committee, you worked to develop the Child Nicotine Poisoning
Prevention Act, which gives CPSC the authority to enforce
requirements for child-resistant packaging and flow restrictors
on liquid nicotine.
To what extent is the Commission fully enforcing this law?
In your view, is the agency doing enough to protect children
from e-cigarettes?
Mr. Feldman. Senator Udall, thank you for the question.
I did have an opportunity to work on that legislation as a
Senate staffer and enjoyed the opportunity to work with you and
your office to advance what I see as an important bill to
address the issue of unintentional poisoning from e-liquid,
liquid nicotine bottles. The statute includes important
safeguards to include child-resistant packaging. It also
unambiguously requires that these bottles include flow
restrictors.
Since joining the agency, I have made enforcement of the
Child Nicotine Poisoning Prevention Act a priority, and I am
delighted to see that the agency has moved forward with a more
aggressive enforcement posture. Clearly more work needs to be
done, but this is something that I am going to continue to pay
attention to and I hope that we continue to maintain an open
dialogue as we move forward.
Senator Udall. Thank you.
The flame retardants, the OFRs, have a well documented
association with significant adverse health effects on
children. I would like to ask the Commissioners a ``yes or no''
question. Do you support the CPSC moving forward to develop a
proposed rule to ban this chemical class in children's
products, upholstered furniture, mattresses, and electronics
casings? Why don't we not start with you?
Ms. Buerkle. Thank you, Senator Udall.
We just recently received a report back from NAS. They will
be briefing the Commissioners on July 24 regarding their
findings. But they have made it clear to us that we cannot
examine this class of chemicals as a class. We need to break it
down into subclasses. And it would be a million dollars per
subclass. And establishing a priority for that, as well as the
funding for that is the challenge for the agency. I think that
there certainly is a stomach to do that at the agency because
of your point, and whether or not these OFRs can pose a chronic
hazard with the exposure to the consumer. But it is a funding
issue, and I would respectfully request again--and Senator
Moran, I know you are on our Appropriations Committee----
Senator Moran. Thank you for that reminder.
[Laughter.]
Ms. Buerkle.--your assistance.
Senator Udall. Good. You are requesting him right now. That
is what I want to see, ask him for the money to do it. And I am
on Appropriations. I will support him in his efforts to get you
the money to do that.
So yours is a yes. You are willing to move forward.
Ms. Buerkle. We are willing to move forward and look at it
with the proper funding.
Senator Udall. Yes?
Mr. Adler. Thank you very much, Senator Udall.
Senator Udall. I have just one minute left.
Mr. Adler. My answer is a resounding yes, and I fully share
the Chairman's concern that NAS has told us it is going to be
about $6 million to fund this. That is not money the agency has
immediately available. So we desperately need funding to do
this. This is a critically important safety issue and we should
move forward.
Senator Udall. Yes?
Ms. Baiocco. Senator Udall, I also agree that we should
move forward with the study.
Senator Udall. Yes?
Mr. Feldman. Yes.
Mr. Kaye. Yes, consistent with the law.
Senator Udall. Thank you very much.
And I have got additional questions for the record. I hope
you will answer them promptly.
Senator Moran. Senator Rosen.
STATEMENT OF HON. JACKY ROSEN,
U.S. SENATOR FROM NEVADA
Senator Rosen. I am going to be really quick and just ask
part of my question so I can get it in.
So last year, the CPSC held their first public hearing on
potential safety issues and hazards associated with the
Internet-connected consumer products. The Internet of Things,
or IoT, has opened doors to innovative opportunities in the
consumer product sectors. We have smart appliances, voice
assistance. Our companies are on a mission to make our lives
easier through these devices. But they also generate new risks
to product safety. Hacks and vulnerabilities have happened in
security system cameras, baby monitors, cardiac devices, just
to name a few. So your agency, tasked with ensuring product
safety, would mean safety and security, cybersecurity.
So, Mr. Kaye, I am going to ask this to you. The Commission
stated in last year's IoT Federal Register announcement, we do
not consider personal data security and privacy issues that may
be related to IoT devices to be consumer product hazards that
the CPSC would address.
So my one quick question is, what is your view of your
jurisdiction over these? Is it just physical threats or does it
include privacy and cybersecurity as well?
Mr. Kaye. Thank you, Senator Rosen.
So I will answer quickly that I cannot speak for the full
commission. I can only speak for myself. We put out a paper--
and I am happy to have it sent to your office--from my office
providing steps forward that the agency can and should take,
and we do address the jurisdictional issues. While we do not
have jurisdiction over a privacy violation, the root hack or
the root vulnerability we do have jurisdiction over if it
creates similar safety issues. And so we believe that what
would end up happening is you would have a hack, you would have
a safety issue, you would have a privacy issue. FTC would have
to take the lead on the privacy issue. We would take a lead on
the safety issue and solve the problem.
Senator Rosen. Perfect. Thank you.
Since we have votes, we will submit all the rest of the
questions and other responses for the record. Thank you.
Senator Moran. Thank you for your cooperation, Senator.
The hearing record will remain open for two weeks. During
that time, Senators are asked to submit any questions for the
record. I assume there will be many. Upon receipt, the
witnesses are requested to submit their written answers to the
Committee as soon as possible.
This concludes the hearing, and we thank the witnesses for
joining us.
[Whereupon, at 11:45 a.m., the hearing was adjourned.]
A P P E N D I X
BreathableBaby, LLC
June 13, 2019
Hon. Jan Schakowsky,
Chairwoman,
Subcommittee on Consumer Protection and Commerce,
Committee on Energy and Commerce,
Washington, DC.
Hon. Cathy McMorris Rodgers,
Ranking Member,
Subcommittee on Consumer Protection and Commerce,
Committee on Energy and Commerce,
Washington, DC.
Dear Chairwoman Schakowsky and Ranking Member McMorris Rodgers:
On behalf of BreathableBaby, LLC, I am submitting this letter as a
statement for the record for the hearing ``Keeping Kids and Consumers
Safe from Dangerous Products.''
One of the bills the Subcommittee is considering at this
legislative hearing, the Safe Cribs Act of 2019, would prohibit the
manufacture, sale, distribution or importation of crib bumpers in the
United States. In so doing, the bill explicitly includes mesh liners in
the definition of a crib bumper. While I support the proposed ban on
crib bumpers given the safety risks they pose, I respectfully submit
that mesh liners are a very different and safe alternative to crib
bumpers and should not be included in this legislation.
A ban on mesh liners would be unprecedented. I am unaware of any
product that has ever been prohibited under section 19(a)(1) of the
Consumer Product Safety Act (CPSA) without any evidence of risk to
consumers. Furthermore, it would be similarly unprecedented to ban such
a product for failing to affirmatively prove its safety in the absence
of that negative evidence.
For nearly 20 years, BreathableBaby has been manufacturing mesh
liners for cribs to protect infants from limb entrapment. Our product
provides protection from the safety hazards and injuries posed by limb
entrapment, such as dislocations and fractures. Furthermore, our mesh
liners also provide a much needed degree of relief to sleep deprived
parents who rush to their infants' rooms in the middle of the night--
often multiple times--because their child is screaming from being
entrapped in the crib slats.
BreathableBaby has sold over 4.5 million mesh liners. Throughout
the nearly 20 years that BreathableBaby has sold its mesh liners, there
has not been a single report or incident that our product--or any
similar mesh liner product--was the cause of any injury or posed any
risk. The company's track record is impeccable. As a result, millions
of parents have turned to our mesh liners as a safe and reliable
alternative to crib bumpers.
Unlike mesh liners, crib bumpers are typically filled with a padded
polyester type material up to 2-inch thick that can restrict breathing
and contribute to death or injury due to suffocation if an infant were
to be wedged between a mattress or other object in the crib and the
crib bumper. Mesh liners pose no such danger to babies. Because mesh
liners have no padding and are highly permeable, infants can still
easily breathe even if their faces were to be pushed up against our
mesh liner.
The evidence, or lack thereof, is straightforward:
1) A forensic analysis of the four major U.S. Consumer Product
Safety Commission hazard monitoring databases (National
Electronic Injury Surveillance System (NEISS), Injury and
Potential Injury Incidents (IPII), In-Depth Investigation
(INDP) and the Death Certificates File (DTHS) by Econometrica,
a Washington DC based data analytics firm concluded:
a. With respect to limb entrapment data, the forensic analysis
supports the contention that there is a safety need for
products that prevent limb entrapments. The analysis of the
2009-2015 IPII database records shows that more than half
of all injury incidents that consumers reported to CPSC
(288 of 544, or 53 percent) associated with cribs involved
arm or leg entrapments.\1\
---------------------------------------------------------------------------
\1\ Mesh Crib Liner Hazard Analysis; An Analysis of CPSC Incident
Data, Econometrica (April 2016).
b. The NEISS data also confirms that mesh crib liners provide a
safety benefit by reducing the rate of limb entrapments in
crib slats or rails. Limb entrapments associated with cribs
account for an estimated 280 emergency department treated
injuries annually. The two largest categories of these
injuries were fractures and dislocations.\2\
---------------------------------------------------------------------------
\2\ Id.
c. Based on this analysis of all of the CPSC incidents reports
since 2009, the study concluded that mesh crib liners
appear to provide a potentially substantial safety benefit
in the form of reduced numbers of limb entrapment injuries
without posing a potential suffocation risk. \3\
---------------------------------------------------------------------------
\3\ Id.
2) Testing conducted by Bureau Veritas of the air permeability of 10
traditional crib bumpers and BreathableBaby's four mesh crib
liners utilizing ASTM D-737 (Standard Test Method for Air
---------------------------------------------------------------------------
Permeability of Textile Fabrics) confirmed the following:
a. BreathableBaby's mesh crib liner products tested between a
range of 384.6 to 1013.1 CFM (cubic feet per meter) of
airflow. On average, BreathableBaby's four crib liner
products were over ten times as permeable to air as the ten
traditional crib bumpers that were also tested.\4\
---------------------------------------------------------------------------
\4\ Air Permeability Testing of Crib Bumpers and Mesh Crib Liners,
Bureau Veritas (April 2016).
b. BreathableBaby's most permeable mesh liner was 46 times more
permeable to air than the least permeable traditional crib
bumper and was over 14 times more permeable to air than the
most permeable traditional crib bumper tested.\5\
---------------------------------------------------------------------------
\5\ Id.
3) An independent research study on the suffocation hazards of mesh
---------------------------------------------------------------------------
liners by a leading pediatric pulmonary researcher concluded:
a. ``the combination of laboratory and epidemiologic data make a
compelling argument for the safety of the BreathableBaby
products. These mesh crib liners do not appear to present a
significant restriction to infant breathing airflows, and
there is no reason to believe that they would increase the
risk of suffocation hazards for infants.'' \6\
---------------------------------------------------------------------------
\6\ Medical and Scientific Perspective On Safety Of BreathableBaby
Mesh Crib Liners, Michael S. Schecter, MD, MPH, Professor and Chief,
Division of Pulmonary Medicine, Department of Pediatrics at Children's
Hospital of Richmond and Virginia Commonwealth University (August
2016).
4) To date, every State that has banned the sale of crib bumpers or
has proposed legislation to ban the sale of crib bumpers, has
explicitly excluded mesh liners from such a ban or potential
ban. These States include Maryland, Ohio, New York, Vermont and
---------------------------------------------------------------------------
Missouri.
5) Parents want a solution to prevent limb entrapment. A 2015 survey
of over 1,000 mothers across the U.S. confirmed that 74.4% used
padded crib bumpers or mesh liners, and over 50% of these
mothers reported that they used them to prevent arms/legs from
getting stuck between slats. If mesh liners were to be included
in the ban, there is a high likelihood of unintended
consequences and risk to infant safety as parents look to
provide makeshift solutions.\7\
---------------------------------------------------------------------------
\7\ Crib Bumper and Mesh Crib Liner Attitudes and Usage Study,
BreathableBaby (September 2015).
6) BreathableBaby has sold over 4.5 million mesh liners since 2002
to satisfied parents without a single incident of injury or
---------------------------------------------------------------------------
death.
Given the complete lack of any evidence that mesh liners pose any
risk to infants, and given the clear safety benefits of preventing limb
entrapment, I respectfully submit that including mesh liners in a ban
on crib bumpers would be counterproductive and could needlessly expose
infants to harm. This position is also supported by Dr. Jonathan
Midgett, the Senior Science Advisor to CPSC Commissioner and Former
Chairman Elliot Kaye, who recently published a paper stating, in part:
``Actively prohibiting the use of crib bumpers without some
alternative may cause some consumers experiencing repeated limb
entrapments to resort to makeshift bumpers such as using rolled
up blankets, pillows or other cushions. But, if the Commission
were to regulate bumpers in such a manner that allowed for mesh
liners or other designs with high levels of airflow, as was
done in Maryland and Chicago, the market would retain a product
that prevents limb entrapments.'' \8\
---------------------------------------------------------------------------
\8\ Cluttered Cribs and Infant Safety: Policy Implications of
Selling and Using Padded Crib Bumpers and Messaging about Safe Sleep
Environments for Babies, Dr. Jonathan Midgett (September 2016).
Thank you again for your consideration of this statement for the
record. I stand ready to provide any further information to Members of
the subcommittee as may be helpful as they deliberate on this bill.
Sincerely,
Jennifer Loesch,
Chief Executive Officer,
BreathableBaby, LLC.
______
Electronic Privacy Information Center
Washington, DC, June 19, 2019
Hon. Jerry Moran, Chairman,
Hon. Richard Blumenthal, Ranking Member,
U.S. Senate Committee on Commerce, Science, and Transportation,
Subcommittee on Manufacturing, Trade, and Consumer Protection,
Washington, DC.
Dear Chairman Moran and Ranking Member Blumenthal:
We write to you regarding the oversight hearing for the Consumer
Product Safety Commission.\1\ We write to call your attention to the
ongoing failure of the CPSC to address the growing risk to privacy and
security of Internet-connected devices. The unregulated collection of
personal data and the growth of the Internet of Things (``IoT'')\2\ has
led to staggering increases in identity theft, security breaches, and
new cybersecurity threats. The CPSC should regulate Internet-connected
devices. Privacy and security are integral to consumer safety.
---------------------------------------------------------------------------
\1\ Oversight of the Consumer Product Safety Commission, 116th
Cong. (2019), S. Comm. on Commerce, Sci. & Trans., Subcomm. on
Manufacturing, Trade, and Consumer Protection, https://
www.commerce.senate.gov/public/index.cfm/2019/6/oversight-of-the-
consumer-product-safety-commission (Jun. 20, 2019).
\2\ EPIC, Internet of Things (IoT), https://epic.org/privacy/
internet/iot/.
---------------------------------------------------------------------------
EPIC is a public interest research center established in 1994 to
focus public attention on emerging privacy and civil liberties
issues.\3\ EPIC is a leading advocate for consumer privacy, and has led
the effort to establish the authority of the Federal Trade Commission
(``FTC'') to safeguard consumer privacy and more recently to explore
the impact of the Internet of Things.\4\ EPIC also urged the Consumer
Product Safety Commission (``CPSC'') to address the hazards of weak
privacy and security in IoT products.\5\
---------------------------------------------------------------------------
\3\ See EPIC, About EPIC, https://epic.org/epic/about.html.
\4\ EPIC Comments to the Federal Trade Comm'n, On the Privacy and
Security Implications of the Internet of Things (June 1, 2013), https:/
/epic.org/privacy/ftc/EPIC-FTC-IoT-Cmts.pdf.
\5\ Sunny Kang, EPIC International Consumer Counsel, The Internet
of Things and Consumer Product Hazards, Testimony, CPSC (May 16, 2018),
https://www.youtube.com/watch?v=-YSDEkWuxUo&feature=youtu.be.
---------------------------------------------------------------------------
Today, the IoT network is the weak link in consumer products. IoT
devices track personal data generated by consumers' activities and
lifestyles. IoT devices pose significant privacy concerns that could
threaten physical danger.
EPIC brought the Google Home Mini complaint\6\ to the CPSC
precisely because the design defect of the consumer device created a
specific risk to consumers. The Acting Chairman of the CPSC responded
to EPIC, stating that ``CPSC's authority will not generally extend to
situations solely related to consumer privacy or data security, that do
not pose a risk of physical injury or illness, or property damage.''
\7\
---------------------------------------------------------------------------
\6\ Coalition Letter to U.S. Consumer Product Safety Comm. On
Google Home Mini (Oct. 13, 2017), https://epic.org/privacy/consumer/
Letter-to-CPSC-re-Google-Mini-Oct-2017.pdf.
\7\ CPSC Acting Chairman Ann Marie Buerkle, Response to EPIC and
Consumer Privacy Organizations (March 23, 2018), https://epic.org/CPSC-
response-GoogleHomeMini-3.23.18.pdf.
---------------------------------------------------------------------------
The CPSC response reflects a profound lack of understanding about
the IoT and the new threats facing consumers. As renowned security
expert Bruce Schneier has said: ``The Internet is dangerous--and the
IoT gives it not just eyes and ears, but also hands and feet. Security
vulnerabilities, exploits, and attacks that once affected only bits and
bytes now affect flesh and blood.'' \8\
---------------------------------------------------------------------------
\8\ Bruce Schneier, IoT Cybersecurity: What's Plan B?, Schneier on
Security (Oct. 18, 2017), https://www.schneier.com/blog/archives/2017/
10/iot_cybersecuri.html.
---------------------------------------------------------------------------
Hackers, criminals, and foreign adversaries exploit IoT
vulnerabilities to launch network attacks that cause millions of
dollars in damage and have devastating impacts on real people.\9\
Hackers could conceivably exploit vulnerabilities on ``smart''
refrigerator to carry out a denial of service attack against the
network of a city or hospital. In the past few months alone there have
been several such attacks. A ransomware attack known as SamSam took
down the entire municipality of Farmington, New Mexico and two
hospitals by exploiting vulnerabilities in IoT devices.\10\ The City of
Atlanta spent 2.6 million dollars to recover from a ransomware attack
that impacted municipal functions including the Police Department and
the judicial system.\11\ It would defy reason to say that unsecured IoT
devices do not harm consumers.
---------------------------------------------------------------------------
\9\ Bruce Schneier, Click Here to Kill Everyone, N.Y. Magazine
(Jan. 27, 2017), http://nymag.com/selectall/2017/01/the-internet-of-
things-dangerous-future-bruce-schneier.html (describing an attack that
used millions of DVRs and other insecure IoT devices to take down
Twitter, Netflix, Reddit, and other sites down from the internet).
\10\ Bill Siwicki, 71 percent of IoT medical device ransomware
infections caused by user practice issues, Healthcare IT News (March 5,
2018), http://www.healthcareitnews.com/news/71-iot-medical-device-
ransomware-infections-caused-user-practice-issues.
\11\ Lily Hay Newman, Atlanta Spent $2.6M to Recover from a $52,000
Ransomware Scare, Wired (April 23, 2018), https://www.wired.com/story/
atlanta-spent-26m-recover-from-ransom
ware-scare/.
---------------------------------------------------------------------------
Privacy and security hazards should be regulated in the manufacture
and design of consumer products. Companies have little incentive to
maintain strong standards without regulation. And consumers do not have
enough information to evaluate the privacy and security of these
products themselves. This has alarming implications for toys that
target children's data, and internet-connected home systems like smoke
detectors and security cameras.
Therefore, manufacturers--not consumers--must bear the
responsibility to ensure the security of their products.\12\ We agree
with the UK Government's assessment that ``There is a need to move away
from placing the burden on consumers to securely configure their
devices, and instead ensure that strong security is built in by
design.'' \13\
---------------------------------------------------------------------------
\12\ See Alan Butler, Products Liability and the Internet of
(Insecure) Things: Should Manufacturers Be Liable for Damage Caused by
Hacked Devices?, 50 U. Mich. J. L. Reform 913 (2017), http://
repository.law.umich.edu/cgi/viewcontent.cgi?article=1193&context=mjlr.
\13\ UK Department for Digital, Culture, Media & Sport, Secure by
Design: Improving the cyber security of consumer Internet of Things
Report (March 2018), https://assets.publishing.service
.gov.uk/government/uploads/system/uploads/attachment_data/file/686089/
Secure_by_Design
_Report_.pdf.
---------------------------------------------------------------------------
Current voluntary standards are lax. And current safety regulations
are outdated. They are not adequate to address the security hazards of
IoT devices. The CPSC should establish mandatory privacy and security
standards, and require certification to these standards before IoT
devices are allowed into the market stream.
The code of practice proposed by the UK government serves as a
useful framework for security standards for IoT. In particular,
manufacturers should adopt the following:\14\
---------------------------------------------------------------------------
\14\ Id.
---------------------------------------------------------------------------
1. No default passwords
2. Implement a vulnerability disclosure policy
3. Keep software updated
4. Securely store credentials and security-sensitive data
5. Communicate securely
6. Minimize exposed attack surfaces
7. Ensure software integrity
8. Data protection
9. Make systems resilient to outages
10. Monitor system telemetry data
11. Make it easy for consumers to delete personal data
12. Make installation and maintenance of devices easy
13. And validate input data
This guidance necessitates privacy and security by design. If the
CPSC implements this code of practice, it will shift the responsibility
of product safety back to manufacturers where it belongs.
Congress should act to empower regulators to protect consumers from
the risks posed by the IoT. We ask that this letter be entered in the
hearing record. EPIC looks forward to working with the Subcommittee on
these and other issues impacting the privacy and security of American
consumers.
Sincerely,
Marc Rotenberg
EPIC President
Caitriona Fitzgerald
EPIC Policy Director
Enclosure:
EPIC and Consumer Privacy Organizations Letter to CPSC, Recall Google
Home Mini (Oct. 13, 2017)
______
Prepared Statement of Crystal Ellis, Elementary Educator,
Parents Against Tip-Overs
My name is Crystal Ellis. I am an elementary educator, mom, and
child safety advocate, representing, Parents Against Tip-Overs, an
organization of families like mine who have lost a child to furniture
tip-over.
Last week would have been my son, Camden Ellis' 7th birthday.
Tragically, he was killed five years ago, on Father's Day, in a
furniture tip-over incident. His 3-drawer dresser, just 30 \3/4\''
tall, fell, as he tried to reach inside to get to his clothes, trapping
his neck between the drawers and suffocating him. He was unable to cry
for help, and we did not hear it fall. His father found him, when he
went to get him up for breakfast. I can still hear my husband's
screams. After trying my best to revive him with CPR, and four days in
a coma at Seattle Children's, we had to say good-bye, donating his
organs to hopefully save another family from our fate.
At the time, I thought this was a freak accident and I had no idea
that this was a danger in my home. When I discovered that he was not
only the 7th child to die because of the negligence of this particular
manufacturer, without a recall, but that children were dying at the
rate of one every 10 days from furniture tip-overs, I was absolutely
devastated.
How was this possible? I had taken multiple getting ready for baby
classes, had put up baby gates, outlet covers, cabinet locks, and had
our car seat professionally installed as a first-time parent. None of
the professional educators, health care providers, mom group leaders,
or other parents had ever told me about the risk of dresser tip-overs
killing my son. I know that there are many other parents in this
country that also have no idea that their dresser is a risk in their
home. They assume, as I did, that any product that is sold to consumers
in the United States of America has been vetted and tested by their
government and would not be sold if it could kill us.
One death every 10 days is a crisis that needs to be immediately
addressed. It has already been 5 years since the death of my son, over
14 years since the death of Kim Amato's daughter, Megan Beck, the
earliest death in our group, and not enough has been done to keep
children safe today. Since Meghan's death, 254 more have died. I
believe a mandatory standard that takes into account real world use by
a child with dynamic testing would have saved my son and literally tens
of thousands of children every year from injuries and death.
We need the STURDY Act for many reasons. The first is the lack of
progress in working with manufacturers to get them to do the right
thing. Consumers advocates and parents have been trying for almost two
decades to strengthen the standard. Since the creation of this ASTM
sub-committee, 19 years ago, there has been no significant change in
the statistics. Manufacturers know how to solve this problem right now,
by engineering the tip-overs right out of the design. PAT members
continue to attend meetings and task groups, ready to dive into
improving the standard, but, by multiple accounts and measures this
ASTM sub-committee, F15.42, is one of the most contentious sub-
committees overseen by ASTM. They have stalled for years on seriously
and effectively addressing the furniture tip-over issue. They keep
saying they need more data. Their data is our dead and injured
children. There are 542 known deaths from 2000-2017, and an average of
75 ER visits a day due to tip-overs. We do not need more data.
Even with the devastating statistics we already have, we also know
the data is underreported, as the statistics are only those reported to
the CPSC. Most consumers and health care professionals do not know what
the CPSC is, or that it even exists, or the importance of reporting
incidents of faulty products to them. We think the lack of awareness of
who the CPSC is in direct correlation with two specific issues. These
are the very small budget of the agency and the 6b provision of the
Consumer Product Safety Act. We need to work with legislators and the
CPSC to quickly resolve both of these issues. Lives depend on it. Every
dresser that falls, at the reported rate of one ER visit every 17
minutes, has the potential to be a death or a life-altering injury.
Even with the chairman of the CPSC strongly urging these manufacturers
to stop stalling and take immediate steps to increase the standard,
there were still dozens of negative votes at the last ballot.
Some manufacturer members of the ASTM sub-committee have argued
that we should make the current voluntary standard mandatory, but we
know the current standard is not strong enough. Proof of this exists,
in the Ikea Hemnes dresser, which currently meets voluntary tip-over
standards, yet was responsible for the death of two-year-old Conner
DeLong in Florida, and was seen in a viral video falling on two year
old twin brothers in Utah, both in 2017. We are also concerned that the
creation of a mandatory standard from the current, weak voluntary
standard, will make it much more difficult to make the standard strong
enough to protect consumers.
Secondly, the CPSC, even though they have expressed that tip-overs
are their highest priority this year, are still not using every tool
available to them, including section 104 rulemaking and recalling every
dresser that does not meet the current, weak voluntary standard.
Also, from participating in on the ASTM meeting on May 10th, I
strongly feel that the manufacturers are not afraid of repercussions
from the CPSC and appear content to wait and see if Congress forces
them to do the right thing, because that's likely the only way they
will. Between their small budget and their hands being tied by the
limitations from Section 6b of the Consumer Product Safety Act, the
manufacturers know they have time to stall. Time that will result in
more deaths of children. How many more dead children will take to
compel those in power to stop this crisis?
Parents Against Tip-overs is a voice for our children who
needlessly lost their lives to this 100 percent preventable issue. A
voice for parents who are home today acting as full-time caregivers for
their children who survived a tip-over incident but have been left with
devastating life-altering injuries. And a voice for parents who cannot
find theirs because they are overwhelmed by the darkness of grief and
sadness that we have all, unfortunately, experienced.
Lastly, I'd like to make it clear that furniture tip-over is not a
partisan issue. I assure you; furniture falls on Republican and
Democratic children equally. It falls on children from both wealthy and
poor families, those who live in both urban and rural communities,
babies, toddlers, and even adults sometimes. The only common
denominator in a furniture tip-over is unstable furniture. And the only
way to stop it is to force manufacturers to adhere to a strong and
effective mandatory furniture safety standard, which the STURDY Act
would do, and likely the only thing that WILL stop tip-overs. The
STURDY Act will give the CPSC the legislative power to make a strong
mandatory standard, where the industry will not hamper the process and
continue to delay.
Additional information to consider:
Anchoring is necessary for furniture that is already in homes, but
we know less than 1/3 of parents anchor, that the final act of safety
should not be on the consumer to anchor, and anchors are not tested for
safety and can actually fail and provide a false sense of security (2
of the respondents to a Meghan's Hope/PAT survey said the furniture
tipped because a restraint failed) The only solution is to build safer
furniture and the industry will only do it if forced to by legislation
supporting a mandatory standard created by the CPSC. That is abundantly
clear.
The Katie Elise and Meghan Agnes Act first introduced in 2005 to
the House with 42 bipartisan co-sponsors, and 5 years after the ASTM
furniture safety committee formed (which none of us knew even existed
at that time). If it was adopted then, Camden, and all the other PAT
children would very likely be alive today. Since Meghan died, there
have been 254 reported deaths from tip-overs, and that's only through
2017 and only what was reported to the CPSC. That number should have
been 0.
Excerpt from Meghan's Hope safety blog, written by PAT founding
member, Kim Amato, about the argument for data, in an open letter to
the ASTM, AHFA, and the CPSC (5/19/19):
Here's what you need to acknowledge and understand about data And
then apply it to the voluntary standard process, data collection and
analysis, and the creation of a mandatory furniture safety standard.
By the CPSC's clear indication in their annual tip-over report,
their reports of injuries and deaths due to tip-overs are ESTIMATES.
You all know why they are estimates, but since everyone in that room
last week at the ASTM furniture safety subcommittee meeting who was not
a consumer member seems to have forgotten, or perhaps just ignored, let
me help you understand why the data you are claiming you need and are
waiting for will never materialize.
1. The NEISS problem. The vast majority of the data the CPSC gets
on tip-over injuries and deaths comes from the NEISS hospitals.
According to the CPSC, ``NEISS injury data are gathered from
the emergency departments (ED) of approximately 100 hospitals
selected as a probability sample of all 5,000+ U.S. hospitals
with emergency departments'' That's only 0.02 percent of the
actual data from ER's that is definitively captured. And it's
ONLY accounting for injuries severe enough to require an ER
visit! It doesn't take a rocket scientist to extrapolate that
data and realize this problem is way more pervasive, and tip-
overs are significantly more common, than the CPSC statistics
indicate.
2. The cause of death problem. Information is also gathered from
death certificates. This is never going to be sufficient unless
all medical examiners in the U.S. are required to not only
report the medical cause of death, but the attributing factors.
For example, Meghan's death certificate states positional
asphyxiation due to a fallen bureau. I know of other tip-over
deaths where the death certificate simply said ``asphyxiation''
or ``blunt force trauma'' with no documentation of the tip-
over. Those deaths would never be captured as being due to tip-
over. Medical examiners also don't always know what the
contributing factors to the death were, either.
3. Non-ER visit data is not captured. The minor injuries that don't
require or are not seen in an ER, but instead are seen in a
pediatrician's office or urgent care center are not captured at
all unless a rare and savvy doctor knows how and why to report
it to the CPSC. The vast majority do not.
4. Near misses (furniture that tipped, but the child was not
injured) and minor injuries are not captured. The near misses
and minor injuries that don't require any medical intervention
at all are completely unknown, since there is no official
record of them. Other tip-over parents like myself know about
them, because those parents tell us about them, and it happens
a lot!
5. It's not easy to report a tip-over. The average parent,
consumer, physician/medical professional, or medical examiner
has no idea Saferproducts.gov exists, or why. They don't know
how or why to report injuries due to a defective or unsafe
product including tip-overs. Even if they are informed about
it, it's cumbersome and time consuming and many parents are
fearful of talking to a government agency, especially because
many parents whose children are injured or killed by a tip-over
are investigated by the police and sometimes DCF. They are
treated like criminals because of the lack of awareness and
sensitivity training out there as to the frequency and
prevalence of tip-overs. If you've gone through that, you are
understandably skeptical and traumatized when it comes to
talking to any other ``agency'' about the tip-over incident.
The CPSC needs to find a way to ensure everyone knows how and
why to report hazards, injuries and deaths due to products sold
in the U.S., to simplify the system and make it user friendly,
and to make that widely publicized, easy to access, and
encouraged, if not required, by every professional who
interacts with children.
6. Reports of tip-overs can happen years after the incident, due to
the reasons outlined above, and many parents find out from
other bereaved parents how and why to report their incident.
It's also important to realize that from the time an incident
is reported, investigated, and the report completed can also
take many months if not years. And while you wait, every 17
minutes, another tip-over happens. A tip-over that you could
have prevented. A life that you could have saved.
7. You'll never be able to get all the data you want about what the
child was doing to cause the tip-over because the vast majority
of the time, no one was in the room where the tip-over happened
except for the child who was the victim. For 99 percent of
these injuries and deaths you'll never know exactly how that
child was interacting with the furniture. Assumptions can be
made, but they are not facts. You'll never be able to know how
many drawers were open, if the child was climbing, pulling,
reaching, standing in a drawer, leaning on a drawer, or if they
simply bumped into it while playing. The answer is simply
physics. So, you need to stop asking for and waiting for that
data, because you'll never get it and you already know that.
The CPSC has told you this as recently as the May 10th meeting
of this year. This is why we need to include testing with some
and all drawers open, loaded with the things typically in
drawers (clothes, toys) and to test with enough test weight to
simulate the dynamic force of at least a 72 month old child
climbing, pulling, or pushing on open drawers, and to account
for the effect of carpet.
8. Every single child that died because of a tip-over could have
lived, and every single child that was not killed in a tip-over
incident could have died. Let that sink in. There was nothing
special about any of these situations. Some call it luck, but
you and I know it all comes down to physics, and every single
situation was different.
9. You will never know for sure how many times furniture you (the
manufacturer) made has tipped over, and likely will never know
about all the injuries and deaths associated with your
furniture falling. So, claiming you have no reports, or
``only'' one death (and seriously, if that ``only'' death was
your child, how would you feel about me downplaying this topic
in that manner), or a handful of minor injuries, is ignorant
and dangerous. Why will you never know? In addition to all the
reasons I've already pointed out, consumers typically don't
know who made their furniture. Nor do they care. They want it
to be safe and they want it to be functional and aesthetically
pleasing. They might remember where they purchased it, but they
probably don't know who the manufacturer was, nor would they
care until their child is injured or killed. Thus, you will
never have accurate data on that, either.
10. Hiding behind the fact your costs will increase has to stop. We
understand that changes to the safety standards can result in
costly changes to your manufacturing processes. We understand
you are businesses and need to make a profit. We get that. But
I can tell you that as a parent and a consumer, when we shop,
we shop for furniture that is aesthetically pleasing, meets our
needs, and is in our price range. Whether I'm paying $100,
$500, or $1000 for a dresser or other CSU, I'm going to pay a
little more if it means I know it's been tested and passes a
stringent safety test. In fact, I might change my mind and
choose your furniture instead BECAUSE I have proof that your
furniture is compliant or goes above and beyond, what is
required for safety. So, you can pass those costs onto the
consumer at a reasonable dollar amount and absorb some of the
cost for the greater good it will result in.
11. Complaining your competition will hurt your sales if you comply
with the voluntary standard has to stop. Victim consciousness
(as in they won't play nice in the sandbox so why should we)
has no place in adulting or in the development and enforcement
of safety standards. It's immature, a cop-out, and cowardly. My
violin is way too small for that. You do you. Don't worry about
your competition. Do the right thing. Own it. Be the change.
Lead the way. Do it in the ASTM meeting, do it for your
constituents, do it because you want to be ethical and trusted
by consumers. Do it to save lives and bring the number of
injuries and deaths to zero. Do it because it's the right thing
to do. You know how to do it. You know how to market. Market
yourselves as the ones who do the right thing, who go above and
beyond and put your money where your mouth is. Prove it to us.
Educate consumers about the tip-over epidemic and then explain
what you have done to address it. Require retailers that sell
your furniture to educate consumers as well. Don't mislead
consumers. It will come back to haunt you. Trust me.
12. No one is immune. Even your friends and family. I bet you all
have every single piece of furniture in your home anchored,
right? Why? Because you know it's not safe when it's
freestanding right now. Until you are willing to allow a child
you love freely interact with, climb, and play in a dresser/CSU
or lie a child you love in front of any CSU/dresser and apply
the current safety test to it, confident that it will remain
upright un-anchored, the standard is not strong enough.
Consider that. Tip-overs happen to the young and the old, to
the wealthy and the poor, the highly educated and the poorly
educated, in cities and in rural areas, in private homes and in
public places, to people of all races and ethnic backgrounds,
to people of all religious and spiritual beliefs, and to all
genders. It could even happen to your family. NO. ONE. IS.
IMMUNE.
13. Tip-over is not a partisan issue. I'm looking at you CPSC and
Congress. There is absolutely no reason every member of the
CPSC and every member of Congress should not fully support the
STURDY Act. This is an issue that affects democrats,
republicans and independents. The only common denominator is
unsafe furniture because there is no adequate or mandatory
safety standard to prevent tip-overs of furniture. We need the
STURDY Act to protect consumers, especially the most
vulnerable, our children.
14. YOU NEED US. Parent advocates and coalitions like Parents
Against Tip-Overs and other consumer advocates are a rare
breed. For every one of us who are bereaved parent advocates,
there are hundreds of others who are not comfortable sharing
their stories and their pain publicly, or who can't because of
their jobs or other reasons. That doesn't mean they don't
exist, and they don't want to see these changes any less than
we do. We are here to represent them, too. We are the voice of
every person who has ever been the victim of a tip-over,
whether it was a near miss, a minor injury, or resulted in a
catastrophic injury or death. We are connected to literally
thousands of other parents who have had or know someone who has
experienced a furniture tip-over incident. We are experts, too,
and we bring important perspective, insight, and ideas to the
table. You need us and we need you to end this epidemic. We
must work together. But waiting for some magical data, some
magical number of injured or dead children that will make you
finally have a sense of urgency about this will no longer be
tolerated.
It is my greatest wish that all members of the ASTM furniture
safety sub-committee and the CPSC finally make a commitment to rapid
and meaningful forward progress with this standard. It needs to be a
priority and it needs to happen now. There is no reason we can't create
and implement a stronger standard this year, with the two changes
supported by the CPSC and Parents Against Tip-Overs, that being a
change in the height to 27 inches and above and a change in the test
weight to 60 lbs., and continue to change it for the better as
additional testing (carpet, dynamic real world tests, open drawers,
etc.) and innovative designs are created. We have all the data we need
right now to make a stronger standard.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Hon. Ann Marie Buerkle
Question 1. A consistent criticism of the CPSC is that outdated
rulemakings are not removed from the agency's docket to reflect
accurately the agency's efforts. Similarly, I hear criticism that the
agency is not doing enough to advance burden reduction opportunities
that do not negatively impact consumer safety. Now that we have all
five commissioners in place, what are you doing to clean up the
agency's docket and reduce overly burdensome and outdated regulations
on industry?
Answer. Since I have been at the Commission, I have made reducing
regulatory burdens a priority. I have been Acting Chairman since
February 2017, however, I have only been serving in the majority for
nine months. In fact, for approximately eight months, I was the lone
Republican, serving with three Democrats. With the arrival of a second
Republican, the agency was spilt 2-2 for five months. Despite these
challenges, during my time as Acting Chairman the agency reduced
testing burdens for certain specified plastics from the agency's
phthalate content requirements, eliminated lead testing requirements
for certain types of wood and invited comments for ways to further
reduce regulatory burdens without compromising safety.
The agency published a Request for Information to solicit input
from regulated communities to share their concerns regarding reducing
regulatory burdens and we continue to evaluate those suggestions for
further action. We are currently considering a rule to reduce testing
requirements for certain fabrics and examining possible avenues to
improve processing time for our screening of imports. We are in the
process of revising the requirements for refrigerators to provide
relief from an outdated regulation. These initiatives are planned for
in the annual operating plan and this fall, 2019, will be the first
time that a Republican majority will plan, and vote for the operating
plan as well as a Budget.
One of the misconceptions about the agency, with regard to outdated
rulemakings, is that they can be quickly rescinded by the Commission.
In order for a rulemaking to be considered by the Commission for a
decision, staff must first prepare a briefing package with their
analysis and possible policy decisions to present to the Commissioners.
This process takes valuable staff time and must be directed in the
agency's operating plan which can be amended by the majority of
Commissioners. With the agency returning to a full Commission, my hope
is that we can make progress on some of these rulemakings in FY20.
Final agency actions are subject to judicial scrutiny and must be
undertaken thoughtfully and in adherence to our statute and
regulations.
Question 2. The Commission's FY 2020 budget request included $6.2
million to address workforce challenges, including potential skills
gaps resulting from the use of new and emerging technologies like the
Internet of Things, robotics, artificial intelligence, and other
innovative consumer products. How would the Commission utilize these
additional resources to prevent these skills gaps from developing?
Answer. Staying abreast of emerging and future hazards, and the
ability to address new hazards presented by Internet connected consumer
products and other emerging technologies, requires new skill sets and
innovative approaches. For example, the CPSC does not currently have
staff expertise to evaluate software as a component part in connected
consumer products.
The Commission's FY 2020 budget request included a total of $6.2M
for Strategic Goal 1 which does not include any additional resources.
Within these budgeted funds, the Commission will recruit, train, and
retain a workforce with the knowledge, skills, and abilities to meet
new, innovative, and emerging, product safety challenges. CPSC will
utilize training opportunities to train existing staff in the use of
new and emerging technologies. For example, the CPSC is currently
sending a mechanical engineer to artificial intelligence training.
Additionally, as current staff leave, CPSC will use recruitment
strategies to attract talented, diverse, and committed people who
possess the skills we need in these gap areas. We will continue to
examine each vacancy through job analysis to ensure we have targeted
assessments for applicants in order to recruit for the critical skills
we need in new and emerging areas. Currently, CPSC rewards creativity
and innovation through our incentives program to maximize employee
interest in developing new ideas, exploring new skills and encouraging
innovation. CPSC also encourages staff to participate in professional,
governmental, and interagency groups on these subjects.
Question 3. I am also a member of the Senate Appropriations
Subcommittee on Financial Services and General Government, which
oversees funding matters related to the CPSC. I remain committed to
ensuring that the CPSC has the resources and tools that it needs to
effectively protect the public from unreasonable risks of injury or
death due to the use of consumer products. Is the Commission have
adequate resources to fulfill its mission?
a. If not, where should additional resources be targeted?
Answer. CPSC does not have adequate resources to fulfill its
mission. As I stated at the hearing, CPSC's mission has long dwarfed
its budget. Even as a fiscal conservative, I have advocated for a
higher budget. My advocacy for the agency has resulted in Congress and
this Administration providing increased funding and resources for the
CPSC each year since I've been Acting Chairman. The House has approved
an $8.5 million increase in CPSC's budget for FY20. I hope the Senate
will do the same.
CPSC needs not only to maintain the capabilities that it currently
has, but also to expand our effectiveness and efficiency. Each year
that we do not keep pace with inflation, more and more mission funding
is redirected to offset cumulative inflation costs. In addition,
programmatically we need a more robust budget to ensure we are fully
equipped to deal with a rapidly changing global marketplace where the
types of products and how consumers buy and interact with those
products is constantly evolving. All of this requires consistent,
adequate, and additional funding.
Question 4. Input with industry and advocacy groups is an essential
component to fulfilling the Commission's purpose. One area of
collaboration has been on the issue of preventing consumer injuries
from portable fuel containers. While workplace safety regulations
mandate the use of flame arrestors for containers in industrial use,
there is no similar requirement for consumer containers. For this
reason, I sponsored the Portable Fuel Container Safety Act that would
direct the Commission to finalize standards for installing flame
arrestors in portable fuel containers. Would you please describe the
importance of collecting stakeholder input in finalizing standards for
this and other consumer product related issues?
Answer. Engagement with all stakeholders including consumer groups,
industry and, most importantly, victims and their families, has been my
priority during my entire time at the Commission. As Acting Chair, I
have advanced the concept of ``tech to tech'' meetings with our
stakeholders. These meetings allow for engineers and technicians to
discuss safety issues and how they can be resolved. As a result of
these meetings, critical safety issues have been resolved, including on
ROV's, portable generators and window coverings. These productive
meetings allow our staff and the regulated community understand issues
and seek common ground. These discussions have also been very
beneficial in the development of voluntary standards.
______
Response to Written Question Submitted by Hon. Marsha Blackburn to
Hon. Ann Marie Buerkle
Question. Constituents in my state have raised concerns regarding
recent injuries and deaths related to the introduction of fine mesh
metal powders with very powerful break charges being used in reloadable
fireworks shells. I understand that in the past, CPSC has relied on
what is known as the ``ear test'' to assess fireworks safety standards,
but has been working on a more objective replacement involving the
presence of fine mesh metal powders.
a. Can you provide us with an update on this proposed rule?
b. Why has the Commission taken so long to update fireworks safety
standards?
Answer. The proposed rule is still being considered by the
Commission. CPSC staff briefed the Commission on October 3, 2018 on
proposed changes to the fireworks rule. At this time, there does not
appear to be sufficient consensus among Commissioners to advance or
amend the current proposed rule. We continue to seek consensus for a
resolution on the proposed rule.
______
Response to Written Question Submitted by Hon. Todd Young to
Hon. Ann Marie Buerkle
Question. Chairman Buerkle, last Congress the Consumer Product
Safety Commission issued a notice of proposal rulemaking regarding
amendments to fireworks regulations. Included in this proposal is an
important safety provision to prohibit the usage fine mesh metallic
powder with a small tolerance to account for manufacturing
contamination. Can you detail what the Commission's timeline is to move
forward with amendments to CPSC fireworks regulations?
Answer. The proposed rule is still being considered by the
Commission. CPSC staff briefed the Commission on October 3, 2018 on
proposed changes to the fireworks rule. At this time, there does not
appear to be sufficient consensus among Commissioners to advance or
amend the current proposed rule. We continue to seek consensus for a
resolution on the proposed rule.
______
Response to Written Questions Submitted by Hon. Ron Johnson to
Hon. Ann Marie Buerkle
Question 1. On March 8, 2019, CPSC issued guidance ``describing the
methodology CPSC staff intends to use to test liquid nicotine
containers for compliance with the restricted flow provisions.''
a. What is the cumulative economic impact of CPSC's guidance in
dollars, the total number of businesses affected by the guidance, and
the total amount of product affected by the guidance?
b. In preparation for issuing this guidance, what data and metrics
did CPSC staff use? Did CPSC look at the total number of e-liquid
businesses in the United States, the total number of sales by those
businesses, and the number of sales of e-liquid glass bottles?
a. If yes, please provide those numbers.
b. If no, please explain why not.
Answer. CPSC staff has not estimated the cumulative economic impact
of the guidance. The Child Nicotine Poisoning Prevention Act of 2015 as
enacted by Congress did not require CPSC to conduct any economic impact
of the law.
CPSC staff did not look at the total number of e-liquid businesses
in the United States, the total number of sales by those businesses, or
the number of sales of e-liquid glass bottles. The Child Nicotine
Poisoning Prevention Act of 2015 as enacted by Congress did not require
CPSC to conduct any economic impact of the law.
Question 2. Based on CPSC's guidance, it appears that CPSC will
test the flow restriction on e-liquid bottles by using a machine that
squeezes the bottle when it's inverted. How does CPSC plan to test
glass e-liquid bottles that may break if squeezed?
Answer. CPSC staff will test in accordance with 16 C.F.R.
Sec. 1700.15. This regulation includes packaging requirements for
restrictive flow ``from which the flow of liquid is so restricted that
not more than 2 milliliters of the contents can be obtained when the
inverted, opened container is taken or squeezed once or when the
container is otherwise activated once.''
Since the guidance was issued, CPSC has received questions about
the testing protocols for packaging that cannot be squeezed (e.g.,
glass or other rigid materials). The test guidance does not need to
change to address these type of packages. CPSC tests rigid packages in
a manner consistent with its published guidance by omitting steps
related to the application of the squeezing force. Specifically, CPSC
inverts rigid packages and measures the resulting flow without
conducting steps 5c, 5d, 8a (release the latch), 8a(ii), and 8b. These
steps, which relate to applying force (i.e., ``squeezing''), have no
impact on the flow out of rigid packaging and may, therefore, be
omitted.
In order to provide further clarity on this issue, CPSC provided
further guidance on August 15, 2019 stating that the steps relating to
applying force may be omitted.
Question 3. If an e-liquid manufacturer changes its packaging to
comply with CPSC guidance, it is unclear if that would result in those
manufacturers having to submit a premarket tobacco application to the
FDA for approval before marketing and selling those products again.
a. Is CPSC aware of this lack of clarity?
b. If so, please describe what steps CPSC plans to take to address
this issue and provide clarity to e-liquid manufacturers.
c. Will CPSC and FDA issue a statement to provide clarity to e-
liquid manufacturers?
Answer. Yes. CPSC has been working in coordination with FDA on the
issue in order to provide further clarity to the regulated community.
It is our understanding that FDA is in the process of developing
guidance on this issue. It is our understanding that FDA is in the
process of developing guidance on this issue.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Ann Marie Buerkle
Statement from Acting Chairman Buerkle: Section 6 of the Consumer
Product Safety Act (CPSA) prohibits the public disclosure of
manufacturer-specific information and information provided to the
Agency by manufacturers, distributors and retailers under mandatory
reporting requirements of Section 15 of the CPSA. This information
often includes sensitive confidential commercial information and is
also prohibited from public disclosure by section 6(b) of the CPSA
unless the Commission has followed specific procedures.
Section 6(a)(7) of the Consumer Product Safety Act prohibits the
withholding of information by the Commission from the duly authorized
committees or subcommittees of the Congress. Consistent with this
provision the Commission has issued regulations implementing section 6
at 16 CFR Sec. 1101.12(g) excluding the ``Chairman or ranking minority
member of Congress acting pursuant to committee business. . .'' from
the definition of ``public.''
A few of the responses to the questions by the ranking or committee
members require disclosure of manufacturer or product-specific
information or other sensitive or confidential commercial information.
The questions also seek information on an ongoing criminal case handled
by the U.S. Department of Justice. Because this information will become
part of the ``public'' record of the June 20, 2019 hearing, I
respectfully request that counsel for the subcommittee work with our
Office of Legislative Affairs to find a mechanism appropriate for
response without making this sensitive confidential and commercial
information part of the public record of the hearing.
Electric Scooters:
Question 1. Acting Chairman Buerkle, please describe the CPSC's
jurisdiction over electric scooters?
Answer. Electric scooters that have a maximum speed of 20 mph or
less are likely to be under CPSC's jurisdiction. The Consumer Product
Safety Act (CPSA) excludes ``motor vehicles'' from the definition of
``consumer product.'' Under the National Traffic and Motor Vehicle
Safety Act of 1966, a ``motor vehicle'' includes ``a vehicle driven or
drawn by mechanical power and manufactured primarily for use on public
streets, roads, and highways.'' 49 U.S.C. Sec. 30102(a)(6). The
National Highway Traffic Safety Administration (NHTSA) has stated that
to determine whether a vehicle is manufactured primarily for use on
public streets, the key factor is whether the maximum speed of the
vehicle exceeds 20 mph. NHTSA also considers whether the vehicle has
on-road safety equipment such as mirrors, turn signals, and stop lamps,
but maximum speed is the primary factor. 70 Fed. Reg. 35810 (June 15,
2005).
Question 2. What is the CPSC doing to prevent injuries from shared
electric scooters provided for rent? Please describe the CPSC's
activities in detail.
Answer. CPSC is aware of incidents related to electric scooters and
is assessing all potential hazards associated with these products. CPSC
has taken action and will continue to take action as appropriate. CPSC
technical staff continues to work on voluntary standards for these
products, including with UL on electrical requirements and ASTM for
mechanical safety issues. CPSC staff is also working to develop safety
messaging on the use of these products.
Question 3. How does the CPSC track these incidents? Please
describe the CPSC's activities in detail.
Answer. As with incidents related to any consumer product, CPSC
tracks incident data through reports submitted by consumers through
SaferProducts.gov, newspaper clippings, state/local authorities,
medical examiners, advocacy groups, reports from manufacturers and
retailers, death certificates, as well as CPSC's in-depth
investigations. CPSC also utilizes the National Electronic Injury
Surveillance System to sample hospitals nationally where information
about consumer-product related incidents are coded from medical
records.
Please send us a report in 30 days of the CPSC's death and injury
data associated with electronic scooters and what the CPSC is doing to
prevent future injuries.
Answer. We will provide the requested report.
In the draft FY20 Operating Plan, staff proposes to review incident
data and samples of electric scooters and work with voluntary standards
organizations to develop requirements that address the harsh conditions
electric scooters are exposed to when used for ridesharing
applications. Staff will also continue developing testing capabilities
for these products.
Tip Overs:
Question 1. Please describe why the Commission has chosen not to
use Section 104 rulemaking to address--at least in part--the tip-over
issue.
Answer. A majority of the commissioners did not support an effort
to use the limited scope of Section 104 authority to address this
issue.
Question 2. Has the Commission reviewed safety issues associated
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any
such review.
Answer. I cannot comment on this matter as part of a published
public hearing record but CPSC staff is available to discuss this issue
with you privately.
Question 3. What activities does the Commission take to ensure that
consumers who own recalled products are directly notified of a
potential safety issue (as opposed to general education campaigns)?
Please describe these activities in detail.
Answer. CPSC's primary option is to issue a press release in
consultation with the affected firm to announce a recall or corrective
action. CPSC strives to maximize direct notification to the best of the
firm's capabilities when negotiating recalls. When a firm demonstrates
that they are able to directly contact 95 percent+ consumers who have
purchased a recalled product, CPSC will pursue a ``Recall Alert'' to
the affected consumers rather than a press release.
Question 4. Has the Commission reviewed any voluntary standards
associated with dressers? Please share the details of any such review.
Does the Commission have any planned activities to improve the safety
of dressers? If so, please describe such activities in detail.
Answer. In February 2019, I called on the ASTM Subcommittee for
Clothing Storage Units to strengthen their standard by expanding the
scope of the standard to include shorter units and to increase the
testing weight for tip-over testing. Changes to expand the scope of the
standard have already been adopted.
Commission staff is also conducting tests of many clothing storage
units currently on the market. Where units do not comply with the
current voluntary standards, the Office of Compliance is following up
with manufacturers.
Staff is also actively engaged with the Subcommittee to improve the
ASTM standard F2057-17. Improvement efforts are centered on consumer
interactions with product and consumer use scenarios identified in the
ANPR. Staff are active members of task groups supporting the
subcommittee working on issues such as: dynamic testing, multiple/
loaded drawer testing, carpet testing, testing repeatability and
operational slide length. Staff is researching new test methodologies
based on available incident data and testing over 185 samples which
represent a variety of CSUs designs on the market today.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Hon. Ann Marie Buerkle
Infant Inclined Sleepers
On April 6, Consumer Reports reported there have been at least 32
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby
product that belongs to a category of products known as ``infant
inclined sleepers.'' On April 11, Consumer Reports reported there have
been at least 4 infant deaths linked to a similar product manufactured
by Kids II. It was only after the publication of these two articles and
the ensuing public outrage that the manufacturers involved agreed to
work with CPSC to recall these deadly products.
Question 1. Was the CPSC aware of these infant fatalities before
Consumer Reports published these figures?
Answer. Yes. This information was previously shared with Congress
in 2018. Consumer Reports published non-public information on these
products obtained from CPSC.
Question 2. Were you aware of these infant fatalities before
Consumer Reports published these figures?
Answer. Yes.
Question 3. If Consumer Reports had not published its findings
regarding infant fatalities caused by infant inclined sleepers, do you
think these products would have been recalled when they were?
Answer. Unequivocally, yes. The publishing of the figures by
Consumer Reports had absolutely no bearing on the recalls of inclined
sleep products.
Question 4. When do you think these products would have been
recalled had Consumer Reports not published its findings regarding
infant fatalities caused by infant inclined sleepers?
Answer. The publishing of the figures by Consumer Reports had
absolutely no bearing on the timing of the recalls.
Question 5. After how many fatalities, do you think these products
should have been taken off the market?
Answer. CPSC acts to address any consumer product hazard as soon as
possible.
Question 6. How many fatalities must happen before the CPSC
initiates a recall?
Answer. None. CPSC routinely announces recalls where the product
involved is not associated with any fatal incident.
The Safe Sleep Act of 2019
I have introduced the Safe Sleep Act of 2019. This legislation
would prohibit the sale, manufacture, and import of infant inclined
sleep products--a dangerous category of infant products, of which the
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My
legislation would also make sure that no new standard can be
established for a sleep product that is inconsistent with safe sleep
best practices.
The American Academy of Pediatrics and safety advocates have long
been clear that a safe sleep environment is a firm, flat, bare surface.
It is clear that infant inclined sleep products are incompatible with
the recommendations of the leading experts on safe sleep.
Question 7. When it comes to establishing standards for infant
sleep products, can you commit that you will only support standards
that are consistent with safe sleep best practices agreed upon by
pediatricians and safety advocates? If your answer is ``No,'' then why
not?
Answer. I have been a steadfast advocate for safe sleep practices
and have participated in numerous events and campaigns to educate
parents on proper sleep practices for infants.
Question 8. Do you believe that infant inclined sleep products are
a category of products that can be considered safe for sleep?
Answer. Not in their current form. CPSC is working to eliminate any
infant sleep product with an incline of more than 10 degrees.
Section 6(b)
Question 9. What role do you believe Section 6(b) of the Consumer
Product Safety Act (``CPSA'') play in preventing the CPSC from acting
sooner to recall these deadly products? \1\
---------------------------------------------------------------------------
\1\ Note: Section 6(b) of the Consumer Product Safety Act prohibits
the Commission from disclosing information about a consumer product
that identifies a manufacturer without the permission of the
manufacturer.
---------------------------------------------------------------------------
Answer. Section 6(b) of the CPSA is part of our statute as written
by Congress and a requirement we must follow. In recent years, Congress
has made significant changes to Section 6(b), including establishing
Saferproducts.gov, while refraining from removing the provision
entirely.
Question 10. Does that mean Section 6(b) is preventing the CPSC
from fulfilling its stated mission to protect the public from
unreasonable risks of serious injury or death?
Answer No.
Question 11. Do you think Section 6(b) protects consumers?
Answer. I believe that Congress intended Section 6(b) to protect
consumers from inaccurate information.
Window Covering Safety
In December 2018, a new window covering standard went into effect
that bans cords on stock products.
Question 12. Please provide detailed market data underlying the
claim that the new window covering standard, which applies to stock
products sold in stores and online, actually accounts for more than 80
percent of all window covering products sold in the United States.
Answer. This statement originated from a WCMA member in a meeting
between CPSC and WCMA in May 2015. The basis for this statement was a
2015 KeyStat study. This study was provided to CPSC staff as
confidential business information by one of the WCMA members.
Question 13. Do most daycares and preschools have stock or custom
window coverings? Please provide data for your answer.
Answer. CPSC does not possess this data.
Question 14. Do most affordable housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. CPSC does not possess this data.
Question 15. Do most military housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. CPSC does not possess this data.
Question 16. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing in stores.
Answer. Any window covering that is available for purchase off-the-
shelf in a store is classified as stock and subject to the stock window
covering requirements (i.e., cordless, short cord, or inaccessible
cord).
Question 17. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing online.
Answer. The window covering standard requires a warning label on
the website if the website is relied upon for promoting, merchandising,
and selling online. This way, the consumer is informed about the
strangulation hazard while placing an order for a corded custom window
covering. CPSC staff has suggested to the WCMA technical committee that
a guidance document for online sales of stock and custom products would
be useful to add to the standard.
Question 18. What is the CPSC doing to monitor compliance with the
new window covering standard? How can the CPSC enforce when it's
unclear whether a product is stock or custom?
Answer. CPSC is monitoring the sale of corded window coverings on
online platforms and developing plans to monitor at ports and in retail
stores. On June 19, 2019, I sent letters to Alibaba, Amazon,
Craigslist, eBay and Facebook asking them to make sure they are only
selling compliant window coverings on their websites.
In order to comply with the ANSI/WCMA voluntary standard, all
products should be designated as ``Custom'' or ``Stock'' on the
manufacturer label, using a ``C'' or the word ``Custom,'' or an ``S''
or the word ``Stock'', respectively. Stock products are substantially
fabricated in advance of being distributed in commerce and in advance
of any specific consumer request for that product. Such product is
likely a stock product if it appears online readily available to ship,
and has limited/specific pre-determined sizing, color, and material
options.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
Two years ago, a video went viral showing near-tragedy from a
furniture tip-over: twin brothers climbing on the Ikea Hemnes 8-drawer
dresser leading it to tip over--one being nearly crushed by it and the
other miraculously saving him. The parents had posted the video to warn
others about the danger.\2\ Tragically, five months later, the same
kind of Ikea dresser fell on another 2-year old boy in his bedroom,
killing him. This dresser still has not been recalled.
---------------------------------------------------------------------------
\2\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
While Ikea has recalled the HEMNES 2, 3, 5, and 6-drawer versions
of this dresser, it has steadfastly refused to recall the 8-drawer
dresser. IKEA refuses to recall it because it does not fail the
existing furniture stability test. They maintain that the product is
safe--even in the face of clear video evidence that it is not.
Kids In Danger, Consumer Federation of America, Parents Against
Tip-overs, and Consumer Reports have all called for the recall of this
product.
Question 19. Do you believe that the current standard governing
furniture stability is inadequate?
Answer. I believe the standard should be improved. For that reason,
I called on the ASTM Subcommittee for Clothing Storage Units to
strengthen their standard by expanding the scope of the standard to
include shorter units and to increase the testing weight for tip-over
testing. Changes to expand the scope of the standard have already been
adopted.
Question 20. Have you personally had any conversations with Ikea
urging them to agree to a voluntarily recall of this dangerous product?
Have you directed CPSC staff to have such conversations? Why or why
not?
Answer. I cannot comment on this matter as part of a published
public hearing record but CPSC staff is available to discuss this issue
with you privately.
Illegal Sale of Recalled Products
As yard sales and garage sales move online, the CPSC must keep up
with the times and work with online platforms that facilitate the sale
of used products to make sure they have strong policies in place that
protect consumers from unwittingly purchasing hazardous recalled
products. It is important that the CPSC continue to vigorously enforce
the prohibition on the sale of recalled products, pursuant to the
Consumer Product Safety Improvement Act of 2008. In the wake of the
recall of Fisher Price Rock `n Play, we continue to see too many of
these products sold on secondary online marketplaces.
Question 21. Please provide a list of all Internet platforms (i.e.,
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established
relationships with. For each platform, please describe:
When and how that relationship was established.
Answer. CPSC has relationships with a number of platforms, some of
them for well over a decade, including:
eBay
Overstock.com
Alibaba
Craigslist
Facebook and Facebook Marketplace
Oodle
Shopgoodwill
Amazon
Letgo
Offer Up
Any special tools the platform has provided to the CPSC to
help monitor the illegal sale of recalled products on the
platform.
Any special tools the platform has provided to the CPSC to
report the illegal sale of recalled products on the platform.
Answer. None of the platforms has not provided any special tools to
CPSC; however we have established relationships and ongoing
discussions.
Question 22. What more could Internet platforms do to eliminate the
illegal sale of recalled products on their platforms?
Answer. On June 19, 2019, I sent letters to Alibaba, Amazon,
Craigslist, eBay and Facebook reminding them that it is illegal to sell
recalled products, asking them to block the sale of any recalled
product on their site and to prevent the listing of recalled goods in
the first place. In addition, I asked them to provide further
information on what they are doing to stop the sale of recalled
products. Conversations with each of these entities are ongoing.
Question 23. Do you think platforms that facilitate the sale of new
and used products should have clear policies expressly prohibiting the
sale of recalled products in the United States?
Answer. Yes.
Question 24. Do you think users should be able to specifically flag
the sale of recalled products?
Answer. Yes.
Question 25. What kind of obligation do you believe these companies
have or should have in making sure recalled products are not illegally
sold on their platforms?
Answer. I believe every company should do what it can to prevent
the sale of recalled products.
Information Campaigns vs. Recalls
The CPSC seems to increasingly likely to agree to settlements with
companies that exclude the word ``recall''--like its recent settlement
with Britax jogging strollers in which the company was ``pleased to
announce'' a resolution that didn't include a recall or formal
correction plan.
Consumers lose out on important legal protections when recalls
aren't called what they should be--``recalls.'' For example, they may
be more susceptible to purchasing second-hand products that haven't
been repaired.
Question 26. What evidence do you have that the Britax jogging
stroller information campaign has adequately addressed the hazard? What
percentage of the strollers have been removed from use or repaired with
a fix that actually works?
Answer. I do not agree that settlements excluding the word
``recall'' are increasingly likely. To the contrary, such settlements
are exceedingly rare and like to remain so. With regard to your more
specific question, I cannot comment on this matter as part of a
published public hearing record but as requested in your April 3, 2019
letter, we are providing you with Britax's information reports.
Question 27. How does the Consumer Product Safety Improvement Act
(``CPSIA'') protect consumers from the sale of products that are
subject to ``information campaigns''?
Answer. In the Britax case, the information and education campaign
is part of a Consent Agreement. As part of the agreement, Britax is
required to submit regular reports on their efforts just as CPSC would
request any other firm to do under any other corrective action plan
agreed to with the Commission. CPSC staff review these reports and may
seek changes to the information and education campaign in order to make
sure consumers are being protected. In the Britax case, the original
settlement agreement has already been modified to improve consumer
protection.
Question 28. So, without an official recall, consumers who buy
these strollers second-hand will have no legal remedy against the
seller for being sold the product without being advised of the
information campaign or for being sold the product without the ``free
modified thru-bolt or free modified quick release'' incentive for
consumers who participate in the information campaign. Is that correct?
Answer. Generally, consumers do not pursue remedies against a
seller of a recalled product, although such an action is possible under
Section 24 of the CPSA in certain cases. The Consent Agreement in this
case requires that Britax disseminate the Information Campaign to
consumers and others--including the secondary markets eBay, Craigslist,
OfferUp, Goodwill Industries, The Salvations Army and The National
Association of Resale Professionals--and provide remedies upon request.
Purchasers of second-hand strollers are able to take advantage of the
Information Campaign and request a remedy, including a Modified Quick
Release or Modified Thru-Bolt, with a limit of one remedy per stroller.
Under some circumstances, additional remedies may be available under
state law.
Recall Effectiveness of IKEA Dressers
The CPSC is in the midst of overseeing the IKEA dresser recall that
currently involves 17 million dressers. We now know of at least 9
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds
and removal of the dressers from use--has been hovering at about 1
percent and we know that at least one death occurred after the recall
was announced, with no reported knowledge by the parents of the recall.
Question 29. What steps should the CPSC take to make this recall
more effective to prevent other children from being injured or killed
from these unstable dressers?
Answer. CPSC reissued its recall notice in November 2017 after an
additional fatality was reported. CPSC continues to monitor the
response rate to the recall and will take further action if warranted.
Question 30. The IKEA furniture recall involves at least 17 million
dressers. What percentage of those recalled dressers are out of
people's homes?
Answer. I cannot comment on this matter as part of a published
public hearing record but CPSC staff is available to discuss this issue
with you privately.
Question 31. Have you met with IKEA? When you met with them, how
did you discuss holding IKEA accountable for this recall?
Answer. I have had several conversations with Ikea on various
issues.
Question 32. What have you done and what are you committed to doing
to decreasing the numerous amount of deadly dressers still in people's
homes?
Answer. I called on the ASTM Subcommittee for Clothing Storage
Units to strengthen their standard by expanding the scope of the
standard to include shorter units and to increase the testing weight
for tip-over testing. Changes to expand the scope of the standard have
already been adopted. The Commission has also directed the staff to
develop a proposed rule to set mandatory standards for clothing storage
units.
While the changes in the standard will make new dressers safer,
there are products in consumers' homes that do not meet the standard.
That's why I continue to make CPSC's Anchor It! campaign a priority and
work with retailers to make sure furniture anchors are available and
that consumers are aware of them.
Update on Crumb Rubber Study
It has now been more than three years since the CPSC, in
coordination with the EPA and CDC, first announced it would be studying
crumb rubber.
Question 33. When is this study going to be complete?
Answer. On July 25, 2019, EPA released its Synthetic Turf Field
Recycled Tire Crumb Rubber Characterization Research Final Report: Part
1--Tire Crumb Rubber Characterization.
The Synthetic Turf Exposure Characterization data collection
(ATSDR) is still ongoing; the CPSC's Playground Use Survey is
completed, and a final contractor's report is due to staff by July 26,
2019. Any CPSC Risk Assessment studies regarding recycled tire rubber
in playground surfacing will consider the findings of the Tire Crumb
Characterization and the Synthetic Turf Exposure Characterization. CPSC
staff anticipates a Risk Assessment for playground surfacing could be
available about 12 months after we receive the Synthetic Turf Exposure
Characterization Report.
Question 34. What is the delay?
Answer. CPSC staff does not agree that there is a delay. The
initial Federal Research Action Plan on Recycled Tire Crumb Used on
Playing Fields and Playgrounds (FRAP) announcement noted that the
schedule was ambitious. The deliverable described in the February 2016
FRAP announcement was, ``By the end of 2016, the agencies anticipate
releasing a draft status report that describes the preliminary findings
and conclusions of the research through that point in time.'' A draft
status report was published at the end of 2016; that milestone was met.
However, because there was still work to be done to answer these
questions, the partner agencies continued with their research in
pursuit of quality science and in compliance with time-consuming
administrative steps required by law (e.g., Paperwork Reduction Act).
The CPSC's Playground Use Survey is completed, and a final
contractor's report is due to staff by July 26. This contract is on
schedule. The survey is the only task specifically assigned to CPSC in
the FRAP announcement. When the FRAP partner agencies' data are
available, CPSC staff will act as quickly as possible to apply those
data in risk assessment activities specific to playground surfaces.
Question 35. Do you believe the EPA and partner agencies are still
fully completed to this research? Have you talked to them about it?
Answer. Work at EPA and ATSDR has been continuous since 2016 (see
response to Question 33). CPSC staff keeps apprised of the activities
at EPA and ATSDR. EPA is planning to brief CPSC senior management on
its Tire Crumb Characterization Report. ATSDR's Synthetic Turf Exposure
Characterization data collection is still ongoing.
Section 6(b) of the Consumer Product Safety Act
The CPSC, alone among safety agencies, has a provision--Section
6(b) of the Consumer Product Safety Act--that typically prevents the
CPSC from sharing product specific safety information with consumers
without express permission from the company in question.
It is often felt that this delays consumers from getting vital
information they could use to keep their families safe. For example,
the Fisher-Price Rock `n Play recall was preceded by a vague warning
that did not identify the product a year before the recall.
However, the CPSC seems to be going out of its way to make it
difficult for consumer advocates and researchers to evaluate risk to
consumers and even whether companies are doing their job in executing
effective recalls.
For example, Nancy Cowles of Kids in Danger says she has submitted
Freedom of Information Act requests documents to shed light on the
recall effectiveness of Ikea's recall on unstable dressers.\3\ However,
those documents are redacted completely, down to the number of Facebook
posts a company will share about a recall. As she is quoted saying in
article: ``I could just go count that. How could that be protected?''
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\3\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis
Question 36. Does it make sense that the CPSC is redacting
information about public Facebook posts about recalls? Do you think it
is appropriate that Section 6(b) really limits such information
disclosures?
Answer. Section 6(a)(3) of the Consumer Product Safety Act, 15
U.S.C. Sec. 2055(a)(3), requires the Commission to, prior to the
disclosure of any information which will permit the public to ascertain
readily the identity of a manufacturer or private labeler of a consumer
product, offer such manufacturer or private labeler an opportunity to
mark such information as confidential and barred from disclosure. The
Commission will withhold from disclosure information that meets the
criteria specified at 16 C.F.R. Sec. 1015.18(c). The Commission expects
firms requesting exemption from disclosure to intend in good faith to
assist the Commission in the defense of any judicial proceeding that
might be brought to compel the disclosure of information which the
Commission determined to be a trade secret or privileged or
confidential commercial or financial information. 16 C.F.R.
Sec. 1015.18(e).
Question 37. Will you commit to making sure the CPSC does not
restrict the disclosure of information more than is required by
statute?
Answer. CPSC will follow the requirements of Section 6(b) and
applicable regulations.
Question 38. As long as Section 6(b) is on the books will you
commit to support the agency restricting disclosure of information
about a product or company to no greater an extent than required by
statute?
Answer. CPSC will follow the requirements of Section 6(b) and
applicable regulations.
Internet of Things
Acting Chair Buerkle recently said in reply to a letter in reply to
consumer privacy organizations, ``CPSC's authority will not generally
extend to situations solely related to consumer privacy or data
security, that do not pose a risk of physical injury or illness, or
property damage.''
On the contrary, the CPSC should be doing more to recognize that
consumer privacy and data security pose real and urgent threats to the
well-being and safety of consumers. Insecure products can be hacked to
spy on children, trip up smoke detectors, and more.
Question 39. How can the CPSC leverage its expertise in keeping
dangerous products off of shelves, to also keep insecure products that
threaten people's safety out of people's homes?
Answer. The Internet of Things (IoT) presents new and unique
challenges and opportunities for the CPSC, because Internet
connectivity introduces new capabilities over a wide spectrum of
products. To that end, CPSC is taking a three-pronged approach to
address the safety of Internet connected consumer products:
Developing staff expertise in internet-connected devices
(workforce development)
Participation in and development of voluntary standards
(domestic and international),
Collaboration with other Federal agencies, foreign
governments, and with a wide range of stakeholders.
Under my leadership, CPSC staff established an Interagency Working
Group on Consumer Product Safety of Internet Connected Products. Staff
also actively participates in the development of consumer product
consensus-based standards, and voluntary standards for Internet
connected consumer products.
Question 40. What is the best way to protect vulnerable consumers
as new products enter the market without standards--such as connected
products? Is enough money allocated to compliance and enforcement
divisions?
Answer. The constantly evolving marketplace, including the
introduction of new technologies, requires substantial CPSC staff
resources with increasingly specialized knowledge to enable the agency
to protect vulnerable consumers. New products create costs associated
with new modes of analysis and new tools for technical assessment to
determine if a substantial product hazards exists or if new standards
changes are warranted.
CPSC's budget has not kept pace with inflation, and I believe
further resources are needed for these and other emerging issues.
Kids in Danger Report: Social Media Practices
Kids In Danger (KID), a non-profit organization dedicated to
protecting children by fighting for product safety, released its latest
report in March.\4\ It found that both the CPSC and manufacturers
posted recalls on Facebook at lower rates in 2018 compared to 2017.
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\4\ https://kidsindanger.org/2019/03/kid-releases-annual-report-on-
recalled-childrens-products/
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CPSC posted only 45 percent of 2018 children's product recalls on
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
In addition, of the 48 manufacturers that issued recalls in 2018,
only 31 percent were announced on the company's Facebook page--down
from 51 percent in 2017.
Question 41. Why isn't the CPSC using all tools at its disposal to
make recalls are made known?
Answer. CPSC strives to maximize direct notification to the best of
the firm's capabilities when negotiating recalls. CPSC evaluates the
firm's presence and activity on social media platforms, including
Facebook, to determine whether a notice should be posted on the
platform as part of a corrective action plan.
Question 42. Why isn't the CPSC requiring manufacturers to issue
notices on the manufacturers' Facebook pages? Why isn't that a standard
part of the corrective action plan?
Answer. See reply to question 41.
Can a product that meets an existing standard be defective?
We are hearing increasingly often from companies that just because
their product is meeting a safety standard, their product can't be
defective and can't be subject to a recall. For example, Britax, the
maker of the B.O.B. jogging stroller argued that a product defect
required the violation of a safety standard. And the B.O.B. had passed
a test that required the removal front wheel to stay on after a strong
pull.
IKEA has also said the same thing about the Hemnes 8-drawer dresser
that killed a 2 year-old.
Question 43. If a product meets an existing standard but is killing
or seriously injuries children and babies, wouldn't you agree the
product should be recalled?
Answer. Dangerous products should be removed from the market. CPSC
has a number of tools, including recalls, and safety standards
development, to improve product safety.
Question 44. Would you agree that the CPSC has the authority to
recall a product if it believes it poses an unreasonable risk of
serious injury or contains a defect that presents a substantial product
hazard--even if the product meets all existing standards?
Answer. Yes. A product's compliance with a voluntary safety
standard does not preclude a finding of defect. Specifically, 16 C.F.R.
Part 1115.8(a) states: ``whether a product is in compliance with
applicable voluntary safety standards may be relevant to the Commission
staff's preliminary determination of whether that product presents a
substantial product hazard under section 15 of the CPSA.''
Staff may also seek a recall for a defect even if a product
complies with a mandatory safety standard. Firms are required to report
to the Commission if their product does not comply with a mandatory
standard or a voluntary standard upon which the Commission has relied.
Compliance with a ``relevant mandatory product safety standard does
not, of itself, relieve a firm from the need to report to the
Commission a product defect that creates a substantial product hazard
under section 15 of the CPSA . . . [however] it will be considered by
staff in making the determination of whether and what type of
corrective action may be required.'' 16 C.F.R. Sec. 1115.8(b).
Question 45. Can a product be recalled if it meets an existing
standard?
Answer. See reply to question 44.
Question 46. Wouldn't you agree that if deaths and injuries are
occurring, the products may still be defective and a recall may be in
order?
Answer. See reply to question 44.
Question 47. What are some examples of companies that have
voluntarily recalled products that didn't necessarily violate a
specific product standard?
Answer. Regulated products may meet a mandatory standard but could
still create a substantial product hazard for reasons not necessarily
addressed by the mandatory standard. Below are some recent examples of
recalled products that did not violate an applicable mandatory
standard:
https://www.cpsc.gov/Recalls/2019/Lidl-Recalls-Wooden-Grasping-
Toys-Due-to-Choking-Hazard
https://www.cpsc.gov/Recalls/2019/Disney-Recalls-the-Forky-11''-
Plush-Toy-Due-to-Choking-Hazard
https://www.cpsc.gov/Recalls/2019/Electric-Bicycles-Recalled-by-
Faraday-Seat-Post-Poses-Fall-Hazard
Question 48. What role do you have in encouraging a manufacturer to
agree to a voluntary recall?
Answer. CPSC career staff communicate with the affected firm and
negotiate the terms of the recall. On occasion staff will request that
I contact the company at the executive level to supports staff's
efforts.
Question 49. What role do you have in directing staff to have
conversations with a manufacturer to encourage a reluctant company into
agreeing to a voluntary recall?
Answer. Compliance staff brief me regularly on ongoing matters
including whether they feel a recall is needed. On occasion staff will
request that I contact the company at the executive level to supports
staff's efforts. CPSC career staff communicate with the affected firm
and negotiate the terms of the recall.
Question 50. What role do you expect other Commissioners to have in
encouraging a manufacturer to agree to a voluntary recall?
Answer. None.
Enforcement of the Child Nicotine Poisoning Prevention Act
I am very concerned about the CPSC's enforcement of the Child
Nicotine Poisoning Prevention Act, which became law three years ago and
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers.
The agency has moved slowly to enforce this law, and public action has
primarily consisted of sending notices to industry about the
requirements.
Question 51. Is the agency doing any market surveillance on this
issue to identify non-compliant products? Have you done any surveys of
industry?
Answer. Yes, CPSC regularly performs market surveillance including
collecting samples at retail and on-line to identify non-compliant
product.
Question 52. Have you taken any enforcement action or enforced
civil penalties for failure to comply with the law? If not, why not?
Answer. CPSC has notified firms and sought corrective action when
non-compliant products are identified.
Question 53. Are there authorities the agency is not using that it
should be to address products that pose a child health hazard like
liquid nicotine?
Answer. No.
CPSC and DOJ Cooperation: Defective Humidifiers by Gree Electric
Appliances
On March 29, 2019, the Department of Justice announced that it is
criminally indicting two corporate executives at Gree Electric for
``their roles in a scheme involving defective and dangerous consumer
products'' under the Consumer Product Safety Act.\5\ In 2016, the CPSC
issued a civil penalty against this company, Gree, for failing to
report deaths and injuries with its dehumidifiers. Acting Chairman
Buerkle opposed this civil penalty and was the sole dissenting vote
against the civil penalty at the time.\6\
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\5\ https://www.justice.gov/opa/pr/two-corporate-executives-
indicted-first-ever-criminal-prosecution-failure-report-under
\6\ https://www.cpsc.gov/content/gree-agrees-to-pay-record-1545-
million-civil-penalty-improve-internal-compliance-for-failure
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DOJ, on the other hand, clearly thought the violations were so
egregious that criminal indictments were warranted. The indictment
describes a failure to report to the CPSC as required under the law and
a conspiracy to defraud the agency.
Question 54. Why did you oppose this civil penalty and what is your
threshold for holding companies accountable when they violate CPSC
laws?
Answer. I cannot comment on this pending matter.
Question 55. I note there is no quote from the CPSC in the DOJ's
press release announcing these criminal charges under the Consumer
Product Safety Act. Did you disagree with DOJ's indictment? Do you
think it was appropriate?
Answer. I cannot comment on this pending matter.
Authority of the Chairman to Direct CPSC Staff
The CPSC voted to move forward on pushing for a mandatory recall of
the BOB jogging strollers in February 2018 by a 3-1 vote, with Acting
Chairman Buerkle being the lone dissenting vote. After a shift from a
Democratic majority to a Republican majority, the CPSC voted to settle
with the company to have a one-year ``information campaign.''
This happened despite clear guidance from career staff that the
product should be recalled.
Question 56. Are there other instances in which CPSC career staff
has wanted to take public positions on a product hazard--or take action
on a product hazard--that you, as Acting Chair have played any role in
preventing?
Answer. No.
CPSC FTE Vacancies
As so many of you have noted, the CPSC does a lot on a tiny budget.
However, I'm concerned by a growing number of vacancies at the CPSC and
how this might be affecting the agency's ability to fulfill its
important mission.
Question 57. How many FTEs are vacant?
Answer. As of July 13, 2019 FTE level at CPSC is 544, just over our
authorized level of 539 for FY19. We have supplemented our permanent
staff with temporary appointments while we are actively recruiting for
40 positions.
Question 58. How do these vacancies affect the CPSC's ability to
carry out its critical safety mission?
Answer. Depending on the exact position and if we have back-up
expertise available to support the duties for a vacant position, it is
sometimes difficult to continue to perform certain functions when a
position is vacant. In the field and at the ports, we have staff
available throughout the country who can travel and provide support
while a position is vacant. On a case-by-case basis, we may also
temporarily detail an employee, reassign duties to another employee,
contract for services, or delay an activity until a position is filled.
Question 59. Why are these vacant? When do you anticipate they will
be filled?
Answer. Many of our positions are in difficult-to-recruit, highly
technical positions, such as Mathematical Statistician, Economist, and
Information Technology Specialists. We are actively recruiting using
all of our available recruiting methods and tools for all of our career
vacant positions. We anticipate filling positions as soon as highly
qualified selectees are identified. Our average time-to-recruit is just
under 83 days.
Question 60. Is there anything preventing these FTEs from being
filled?
Answer. No.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Ann Marie Buerkle
I appreciate that on March 8, CPSC clarified in a letter for
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'')
requires both child resistant packaging and flow restrictors for liquid
nicotine containers. Both of these product safety requirements are
important for preventing unintentional child ingestion of liquid
nicotine. CPSC had previously advised industry about the law's
requirements for child resistant packaging, but had not yet also
communicated the law's requirement for flow restrictors, despite the
reference to that requirement in the law's statutory language. However,
I am concerned that current ambiguity about the interaction of this
requirement with U.S. Food and Drug Administration (``FDA'') policy
could undermine the successful enforcement of the CNPPA.
As part of its process to assert its jurisdiction over electronic
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products
introduced after the August 8, 2016, effective date immediately subject
to the requirement for FDA authorization through the Premarket Tobacco
Product Application process. This includes both new products and
modified versions of previously marketed products. It is therefore
unclear whether changes to liquid nicotine containers to comply with
the flow restrictor requirements could potentially result in FDA
considering the product to be a new product, requiring Premarket
Tobacco Product Application authorization. While Congress clearly
provided this regulatory authority to CPSC before the FDA Deeming Rule,
I am concerned that ambiguity on the overlap of authority between the
agencies could lead to industry noncompliance with the CNPPA's flow
restrictor requirement, putting children at risk. In order to address
that possibility, I would appreciate your responses to the following
questions:
Question 1. Has the CPSC taken any enforcement action for liquid
nicotine containers for noncompliance with either the child resistant
packaging or flow restrictor requirements? If so, please provide
details on the extent of those enforcement actions.
Answer. CPSC has notified firms and sought corrective action when
non-compliant products are identified.
Question 2. Have the CPSC commissioners or staff communicated with
FDA about the potential interaction of the CNPPA flow restrictor
requirement and the FDA Deeming Rule?
Answer. Yes, CPSC has communicated with FDA to discuss each
agency's respective requirements.
Question 3. Do the CPSC and FDA have plans to take any action to
provide clarity that ensures manufacturers follow the flow restrictor
requirements in CNPPA?
Answer. CPSC has issued guidance on the restricted flow
requirements.
https://www.cpsc.gov/s3fs-public/
NoticeofRestrictedFlowTP.March82019.pdf
Children's Cosmetics:
A recent study by Nationwide Children's Hospital and Ohio State
University examined injuries from cosmetics and other personal care
product--including nail care, hair care, skin care, and fragrance
products--to children under the age of 5 years old.
The authors used the CPSC's National Electronic Injury Surveillance
System to estimate that, nationwide, about 64,000 children had visited
hospital emergency departments for these injuries between 2002 and
2016.
Each year, about 4,300 children are treated in emergency
departments for these injuries.
From this analysis, we know that these injuries happen at home and
that ingestion is the main route of exposure. But chemical burns and
eye injuries from children spraying fragrance into their faces are also
notable types of injury.
In light of this study, I have a few questions:
Question 1. What can the CPSC do to protect young children from
harm caused by personal care products?
Answer. The definition of ``consumer product'' in the Consumer
Product Safety Act (CPSA) excludes ``cosmetics'' as that term is
defined in the Federal Food Drug and Cosmetic Act. The personal care
products specified in the question (nail care, hair care, skin care,
and fragrance products) are likely to be cosmetics and fall under FDA's
authority.
CPSC does have authority over one aspect of cosmetics. Under the
Poison Prevention Packaging Act (PPPA), CPSC can require special
packaging (sometimes called child resistant packaging) for household
substances, including cosmetics, if such packaging is necessary to
protect children from serious injury or illness resulting from
handling, using or ingesting the substance.
Question 2. Could product safety standards be developed that would
reduce the risk of injury to children from personal care products?
Answer. Yes.
Question 3. Do you believe warning letters are effective at
reducing injury? Why or why not?
Answer. Warning letters can be an effective tool to educate
consumers in order to reduce the chance of injury. CPSC often discusses
``hidden hazards'' associated with consumer products where the risk of
injury may not be apparent to the consumer. Educating consumers about
such hazards can allow them to make safe choices.
______
Response to Written Questions Submitted by Hon. Kyrsten Sinema to
Hon. Ann Marie Buerkle
Question 1. As an Independent Regulatory Agency, the Consumer
Product Safety Commission's (``CPSC'') rulemaking activities do not
include compliance with Executive Order 12866's cost benefit analysis
requirements. Instead, only a small subset of rulemakings conducted by
the CPSC are directed to consider costs and benefits--those regulations
promulgated under section 9 of the Consumer Product Safety Improvement
Act (CPSIA). An important component of Executive Order 12866 is the
centralized review significant rules by the Office of Information and
Regulatory Affairs (``OIRA''). While OIRA is not called upon to review
`significant' rules, which include a cost benefit analysis, they are
present in other activities performed by the CPSC, mainly compliance
with the Paperwork Reduction Act (``PRA'') and the Congressional Review
Act (``CRA'').
a) For activities performed by the CPSC that require OIRA
engagement under the PRA and CRA, what have you experienced in the
CPSC's dialogue with OIRA? Has the CPSC experienced delays in action
timelines due to OIRA review? How have disputes with OIRA been
resolved?
Answer. OIRA's review of CPSC's final rules to determine whether
they are ``major'' rules under the CRA has been quite prompt and has
not created any delays for CPSC. Regarding the PRA, OIRA sometimes
raises questions about aspects of some of CPSC's proposed collections
of information. In those circumstances, CPSC staff meets or has
telephone conferences with CPSC's OMB desk officer and OIRA staff to
resolve outstanding questions.
b) For rulemakings promulgated under Section 9 of the CPSIA, what
are the benefits and costs of not submitting a cost-benefit analysis
for OIRA review?
Answer. Section 9 of the Consumer Product Safety Act (CPSA)
requires the Commission to conduct a regulatory analysis that includes
a description of the anticipated benefits and costs of consumer product
safety rules issued under that section. Because the Commission has
never been required to submit its regulatory analyses to OIRA for
review, it is difficult to assess the costs and benefits of such a
review.
Question 2. Under Section 3507(c) of the Paperwork Reduction Act,
the commission of an Independent Regulatory Agency can overrule `the
Director's disapproval or exercise of authority'' via a majority vote.
a) What has been your experience, as a commissioner and acting-
chairwoman, in the willingness of the CPSC to vote to override the
decision of the Director?
Answer. This issue has not arisen while I have been a commissioner
or acting chair. Since the enactment of the PRA, the CPSC has not taken
any actions to overrule any Director's decisions. CPSC staff works with
CPSC's OMB desk officer, as necessary, before any PRA submissions to
obtain approval.
b) Would it be beneficial to the functioning of the CPSC to expand
the scope of the language in Section 3507 (c) to other situations that
require engagement with the Executive, such as the CRA?
Answer. Currently, under the CRA, the only aspect that OIRA reviews
is whether a CPSC final rule is a ``major'' rule. Most of the
Commission's rules are not major and their non-major status is usually
quite clear. To date, OIRA has not disagreed with CPSC staff on the
question of whether a particular rule is major.
______
Response to Written Question Submitted by Hon. Tammy Duckworth to
Hon. Ann Marie Buerkle
While much progress was made on sudden unexplained infant death
(``SUID'') in the 1990s, little progress has been made in reducing SUID
over the past decade. In some high-risk groups, rates are going in the
wrong direction. The U.S. Centers for Disease Control and Prevention
(``CDC'') estimate that in 2017 there were about 3,600 SUID cases in
the U.S. Many products--everything from crib bumpers, nests or pillow--
like products and sleep positioners--are made and sold to help infants
sleep. The FDA has warned against sleep positioners and safe sleep
advocates warn against the use of crib bumper pads. Many of these
products meet no standard--mandatory or voluntary. The CPSC is in a
unique position to help address the public health problem of SUID
through its jurisdiction over infant products and opportunities to
communicate with families, caregivers and health care providers.
Question. What will you do, beyond education and awareness, to push
CPSC to use its authority to increase safe sleep among high-risk
families and to reduce the hazard posed by certain infant sleep
products such as crib bumpers and other untested products?
Answer. In addition to our safe sleep campaign, which has been a
priority of mine, we have a number of standards that we work on to
protect infants. In addition, the CPSC is moving forward with a
rulemaking on inclined sleep products and will be addressing crib
bumpers soon to prevent injuries and deaths.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Hon. Robert S. Adler
Question 1. Consumers Union was one of the recipients of consumer
PII and 6(b)-protected information from the Clearinghouse. You have a
long record with this organization, including serving as a director for
20 years. While the Ethics Pledge from the Obama Administration only
prohibits participation in agency matters involving former employers
for two years, Federal ethics regulations require specific
authorization before participating in matters where your impartiality
is likely to be questioned. You have committed to the Senate that you
would resolve potential conflicts according to the terms of your ethics
agreement. Have you consulted the Commission's designated agency
official about your participation in matters relating to Consumers
Union and the unauthorized disclosure?
Answer. My ethics pledge regarding Consumers Union was to recuse
myself from any decision-making that involved Consumers Union for one
year, which I did. Since then, I have treated CU as I do all other
stakeholders--business and public citizen groups alike--with
transparency and fairness.
Other than being briefed on the Commission's efforts to retrieve
the data, I have not been involved in the agency's response to the
information disclosure. Accordingly, I see no potential conflict that
would require consultation with the Commission's designated ethics
official.
Question 2. I understand that the safety of older Americans has
always been one of your top priorities while on the Commission. I share
your concerns and appreciate your leadership on this issue. What more
can the CPSC do to ensure seniors are protected?
Answer. Thank you for the question and for your concern. There are
several things the agency can and must do.
First and foremost, we must gather and disseminate data regarding
products that disproportionately injure and kill seniors. We know, for
example, that loose fluffy robes that many seniors wear all too often
can catch on fire with tragic results. Although CPSC has occasionally
published studies on senior hazards, I believe that we should do so on
an annual basis.
Second, where products have been identified that disproportionately
harm seniors, I believe Congress should provide CPSC with streamlined
rulemaking authority to provide protection for this vulnerable
population on a timely basis. Congress provided such authority to CPSC
in 2008 in the Consumer Product Safety Improvement Act for infant
products because of its concerns for these involuntary risk takers.
Similarly, impaired senses can undermine seniors' awareness of risks,
thereby placing them in an analogous high-risk setting to children.
Third, CPSC should undertake more outreach to the business
community to stimulate the development of innovative products that
enhance the safety of seniors. For example, at a recent International
Consumer Health and Safety Organization (ICPHSO) conference, we saw a
number of products that could make seniors' lives safer. One particular
device seemed extremely creative. A manufacturer has developed a razor
for caretakers to use to more safely shave seniors who lack the
capacity to shave themselves. Approaches like this can make a big
difference in seniors' lives.
Finally, where CPSC has identified products that disproportionately
harm seniors, but do not rise to the level of presenting an
unreasonable risk, we should, at a minimum, warn seniors of the
enhanced risk of these products and, where warranted, require special
warnings to seniors.
All in all, there are many things that CPSC and the Congress can do
to protect this growing demographic.
Question 3. I am also a member of the Senate Appropriations
Subcommittee on Financial Services and General Government, which
oversees funding matters related to the CPSC. I remain committed to
ensuring that the CPSC has the resources and tools that it needs to
effectively protect the public from unreasonable risks of injury or
death due to the use of consumer products. Does the Commission have
adequate resources to fulfill its mission?
a. If not, where should additional resources be targeted?
Answer. As I mentioned during my Senate testimony on June 20, 2019,
I believe that the Commission is in dire need of additional funding
given the enormous safety mandate that we carry. For example, as I
understand it, given CPSC's diminished funding in recent years, we have
had to move funds otherwise available for safety projects to cover
inflation costs and pay increases for agency staff.
In addition, below is a list of critical safety projects that my
colleague, Elliot Kaye and I, recently identified as projects that will
not be funded without additional resources. Postponing or eliminating
them will put consumers unnecessarily at risk.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Robert S. Adler
Commissioner Kaye has testified that Section 6(b) of the Consumer
Product Safety Act, which prohibits the Commission from releasing data
about potentially unsafe products, is ``anti-consumer safety and anti-
transparency'' and that people die because of it.
Recent history shows that 6(b) ties the hands of the agency because
it prevents the agency from acting when it believes dangerous products
are in the marketplace but the company making the products won't agree
to voluntarily take it out of circulation.
Question 1. Do you agree with Commissioner Kaye that we should
eliminate 6(b)? If not, what other tools does the Commission have to
deal with bad actors? Will you commit to supporting the use of those
tools as a CSPC Commissioner?
Answer. Yes. I strongly believe Congress should repeal section
6(b). As I have said for years, these burdensome requirements, which
apply only to CPSC--and no other Federal agency--hamper the public's
ability to make informed choices about dangerous products. I agree with
Commissioner Kaye when he said that ``[p]eople die because of section
6(b).''
In my experience, manufacturers rarely invoke section 6(b) to
improve the accuracy or fairness of proposed CPSC information releases.
Instead, they use the threat of litigation under section 6(b)(3)(A) to
try to water down Commission press releases designed to warn the public
of dangerous products.
Tip Overs
Question 1. Please describe why the Commission has chosen not to
use Section 104 rulemaking to address--at least in part--the tip-over
issue.
Answer. I cannot speak for other CPSC Commissioners on this topic,
but I can state my strongly held view (and that of Commissioner Elliot
Kaye) that the agency should have directed CPSC staff to begin the
process of drafting a safety standard for children's clothing storage
units (CSU). Commissioner Kaye and I offered an amendment to the
Midyear Review in March of 2019 that would have begun this process. Our
reasons were as follows: First, tipovers continue to kill and maim
young children. Second, the furniture industry has shown extreme
reluctance to address tipover hazards. Third, section 104 rulemaking,
although not addressing all products that present a tipover risk to
children, could eliminate a substantial portion of the hazard in a far
more expeditious manner than the cumbersome procedures of rulemaking
under sections 7 and 9 of the Consumer Product Safety Act. On this
point, I note that CPSC has drafted roughly 20 safety standards for
children's products under rule 104 in the last 10 years, while the
agency has drafted only one standard under the time-consuming
provisions found in sections 7 and 9 in the same time period (that
standard was drafted under the Flammable Fabrics Act, which contains
similar provisions to the CPSA).
I have attached a dissenting statement that Commissioner Kaye and I
submitted on March 20, 2019 in response to our colleagues' vote not to
proceed with a section 104 rule in parallel with the agency's
development of a tipover rule under sections 7 and 9.
Question 2. Has the Commission reviewed safety issues associated
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any
such review.
Answer. Please see attached CSPC staff response.
Question 3. What activities does the Commission take to ensure that
consumers who own recalled products are directly notified of a
potential safety issue (as opposed to general education campaigns)?
Please describe these activities in detail.
Answer. Please see attached CSPC staff response.
Question 4. Has the Commission reviewed any voluntary standards
associated with dressers? Please share the details of any such review.
Does the Commission have any planned activities to improve the safety
of dressers? If so, please describe such activities in detail.
Answer. Please see attached CSPC staff response.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Hon. Robert S. Adler
Infant Inclined Sleepers
On April 6, Consumer Reports reported there have been at least 32
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby
product that belongs to a category of products known as ``infant
inclined sleepers.'' On April 11, Consumer Reports reported there have
been at least 4 infant deaths linked to a similar product manufactured
by Kids II. It was only after the publication of these two articles and
the ensuing public outrage that the manufacturers involved agreed to
work with CPSC to recall these deadly products.
Question 1. Was the CPSC aware of these infant fatalities before
Consumer Reports published these figures?
Answer. Please see attached CSPC staff response.
Question 2. Were you aware of these infant fatalities before
Consumer Reports published these figures?
Answer. I was aware of some infant deaths related to the Fisher-
Price Rock `n Play inclined sleeper before Consumer Reports published
its article. It was my understanding that CPSC staff was investigating
whether this product presented a ``substantial product hazard'' under
section 15 of the Consumer Product Safety Act. At the time, I fully
supported the publication of a general warning to the public about the
hazards of inclined sleepers, although I do not think that initial
warning was strong or effective enough. That is why I strongly
supported the Commission issuing a unilateral press release warning
consumers about the specific Fisher-Price sleeper--a move that was
superseded by the publication of the Consumer Reports story and the
firm's subsequent cooperation in a recall. Alas, I believe that the
restrictions on information disclosure in section 6(b) slowed the
Commission's ability to warn specifically about the hazards of Fisher-
Price's sleeper.
Question 3. If Consumer Reports had not published its findings
regarding infant fatalities caused by infant inclined sleepers, do you
think these products would have been recalled when they were?
Answer. Although I have no knowledge of the internal deliberations
that led the firm to agree to undertake a recall, I think it is likely
that Consumer Reports' story played a part in increasing public
pressure and persuading the firm that the product should be recalled.
Question 4. When do you think these products would have been
recalled had Consumer Reports not published its findings regarding
infant fatalities caused by infant inclined sleepers?
Answer. This is not an easily answered question because before CPSC
can order a mandatory recall, the agency must find, after an
adjudicative hearing, that the product is a ``substantial product
hazard.'' At the time of Consumer Reports' publication, CPSC staff was
investigating whether the Rock `n Play constituted such a hazard.
Absent such a finding, a recall could only take place with the
manufacturer's approval. See my answer to Question 3 above.
Question 5. After how many fatalities do you think these products
should have been taken off the market?
Answer. The Consumer Product Safety Act does not require a ``body
count'' of injuries or fatalities in order for the agency to take
remedial action. The agency should act whenever it acquires sufficient
information to conclude that a product presents an unacceptable risk of
injury.
Question 6. How many fatalities must happen before the CPSC
initiates a recall?
Answer. See my answer to Question 5 above.
The Safe Sleep Act of 2019
I have introduced the Safe Sleep Act of 2019. This legislation
would prohibit the sale, manufacture, and import of infant inclined
sleep products--a dangerous category of infant products, of which the
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My
legislation would also make sure that no new standard can be
established for a sleep product that is inconsistent with safe sleep
best practices.
The American Academy of Pediatrics and safety advocates have long
been clear that a safe sleep environment is a firm, flat, bare surface.
It is clear that infant inclined sleep products are incompatible with
the recommendations of the leading experts on safe sleep.
Question 7. When it comes to establishing standards for infant
sleep products, can you commit that you will only support standards
that are consistent with safe sleep best practices agreed upon by
pediatricians and safety advocates? If your answer is ``No,'' then why
not?
Answer. As a Commissioner, I am uncomfortable adopting a blanket
endorsement of all such advice, even from a source I greatly admire.
The data, science, and medical opinions of pediatricians and safety
advocates do carry significant weight in my decision-making.
Question 8. Do you believe that infant inclined sleep products are
a category of products that can be considered safe for sleep?
Answer. I find myself increasingly skeptical that sleep products
that permit inclined surfaces for infants are safe. CPSC is currently
re-thinking its prior support for such products, and I strongly support
this re-examination.
Section 6(b)
Question 9. What role do you believe Section 6(b) of the Consumer
Product Safety Act (CPSA) plays in preventing the CPSC from acting
sooner to recall these deadly products? \1\
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\1\ Note: Section 6(b) of the Consumer Product Safety Act prohibits
the Commission from disclosing information about a consumer product
that identifies a manufacturer without the permission of the
manufacturer.
---------------------------------------------------------------------------
Answer. Section 6(b) requires the Commission, at least 15 days
prior to issuing any information that would enable the public to
identify a particular manufacturer (or private labeler), to provide a
summary of the information that the Commission plans to release to the
subject firm and to provide the firm a reasonable opportunity to
comment on the proposed information release. This section requires the
Commission to take reasonable steps to assure that the information to
be released is accurate and that disclosure of the information is fair
in the circumstances and reasonably related to effectuating the
purposes of the Consumer Product Safety Act.
No other agency in the Federal government operates under such
restrictions. In practice, section 6(b) adds unnecessary time and
expense to the Commission's operations. Although this section may look
benign on its face, it hampers the timely release of critical safety
information to the public with few, if any, corresponding benefits. In
my experience, manufacturers rarely invoke section 6(b) to improve the
accuracy or fairness of proposed CPSC information releases. Instead,
they use the threat of expensive and lengthy litigation under section
6(b)(3(A) to try to water down Commission press releases designed to
warn the public of dangerous products.
Question 10. Does that mean Section 6(b) is preventing the CPSC
from fulfilling its stated mission to protect the public from
unreasonable risks of serious injury or death?
Answer. Yes, the existence of 6(b) increases the unreasonable risks
of serious injury and death to which the public is exposed.
Question 11. Do you think Section 6(b) protects consumers?
Answer. Absolutely not. Section 6(b) endangers consumers by
depriving them of the information they need to keep them and their
families safe. Sadly, safety delayed too often is safety denied.
Window Covering Safety
In December 2018, a new window covering standard went into effect
that bans cords on stock products.
Question 12. Please provide detailed market data underlying the
claim that the new window covering standard, which applies to stock
products sold in stores and online, actually accounts for more than 80
percent of all window covering products sold in the United States.
Answer. Please see attached CSPC staff response.
Question 13. Do most daycares and preschools have stock or custom
window coverings? Please provide data for your answer.
Answer. Please see attached CSPC staff response.
Question 14. Do most affordable housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. Please see attached CSPC staff response.
Question 15. Do most military housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. Please see attached CSPC staff response.
Question 16. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing in stores.
Answer. Please see attached CSPC staff response.
Question 17. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing online.
Answer. Please see attached CSPC staff response.
Question 18. What is the CPSC doing to monitor compliance with the
new window covering standard? How can the CPSC enforce when it's
unclear whether a product is stock or custom?
Answer. Please see attached CSPC staff response.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
Two years ago, a video went viral showing near-tragedy from a
furniture tip-over: twin brothers climbing on the Ikea Hemnes 8-drawer
dresser leading it to tip over--one being nearly crushed by it and the
other miraculously saving him. The parents had posted the video to warn
others about the danger.\2\ Tragically, five months later, the same
kind of Ikea dresser fell on another 2-year old boy in his bedroom,
killing him. This dresser still has not been recalled.
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\2\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
While Ikea has recalled the HEMNES 2, 3, 5, and 6-drawer versions
of this dresser, it has steadfastly refused to recall the 8-drawer
dresser. IKEA refuses to recall it because it does not fail the
existing furniture stability test. They maintain that the product is
safe--even in the face of clear video evidence that it is not.
Kids In Danger, Consumer Federation of America, Parents Against
Tip-overs, and Consumer Reports have all called for the recall of this
product.
Question 19. Do you believe that the current standard governing
furniture stability is inadequate?
Answer. Yes. The standard fails to account for the fact that
children in 2019 are bigger on average and engage in hanging and
climbing activities on furniture in ways not addressed in the standard.
I am greatly disappointed that the industry has failed to act to
address these serious hazards in a timely manner.
Question 20. Have you personally had any conversations with Ikea
urging them to agree to a voluntarily recall of this dangerous product?
Have you directed CPSC staff to have such conversations? Why or why
not?
Answer. I have not had any conversations with Ikea about the
voluntary recall. As a general rule, I do not meet with companies to
discuss the specifics of recalls because that is a job of CPSC staff
under the executive and administrative direction of the Chairman.
Section 4 of the Consumer Product Safety Act vests the Office of
the Chairman with administrative and executive responsibility for
directing CPSC staff. Accordingly, I generally lack the authority to
direct staff's work. That said, I have strongly urged both the Chairman
and staff to continue to work with Ikea to undertake a broader approach
to its recall.
Illegal Sale of Recalled Products
As yard sales and garage sales move online, the CPSC must keep up
with the times and work with online platforms that facilitate the sale
of used products to make sure they have strong policies in place that
protect consumers from unwittingly purchasing hazardous recalled
products. It is important that the CPSC continue to vigorously enforce
the prohibition on the sale of recalled products, pursuant to the
Consumer Product Safety Improvement Act of 2008. In the wake of the
recall of Fisher Price Rock `n Play, we continue to see too many of
these products sold on secondary online marketplaces.
Question 21. Please provide a list of all Internet platforms (i.e.,
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established
relationships with. For each platform, please describe:
When and how that relationship was established.
Any special tools the platform has provided to the CPSC to
help monitor the illegal sale of recalled products on the
platform.
Any special tools the platform has provided to the CPSC to
report the illegal sale of recalled products on the platform.
Answer. Please see attached CSPC staff response to all of the
above.
Question 22. What more could Internet platforms do to eliminate the
illegal sale of recalled products on their platforms?
Answer. This important issue should be part of the CPSC's ongoing
efforts to improve recall effectiveness. As part of the agency's
continued research on methods of protecting consumers from unsafe
products, CPSC should partner with platforms and other technology
providers to better coordinate in the interest of consumer safety.
Question 23. Do you think platforms that facilitate the sale of new
and used products should have clear policies expressly prohibiting the
sale of recalled products in the United States?
Answer. Yes. CPSA Section 19(a)(2)(B) prohibits the sale of
recalled products, therefore CPSC should advise platforms to provide
sellers with clear policies informing them of that prohibition.
Question 24. Do you think users should be able to specifically flag
the sale of recalled products?
Answer. Yes. Platforms should provide a simple and recognizable
method for consumers to ``flag'' recalled products. CPSC has numerous
data sources, including a recall app and its product safety database
that help platforms identify recalled products.
Question 25. What kind of obligation do you think these companies
have or should have in making sure recalled products are not illegally
sold on their platforms?
Answer. Currently, CPSC does not have jurisdiction over online
platforms that do not sell goods themselves but only offer a
marketplace for the sale or resale of goods. CPSC should partner with
these platforms to create strong policies to prevent the sale of
recalled goods.
Information Campaigns vs. Recalls
The CPSC seems to increasingly likely to agree to settlements with
companies that exclude the word ``recall''--like its recent settlement
with Britax jogging strollers in which the company was ``pleased to
announce'' a resolution that didn't include a recall or formal
correction plan.
Consumers lose out on important legal protections when recalls
aren't called what they should be--``recalls.'' For example, they may
be more susceptible to purchasing second-hand products that haven't
been repaired.
Question 26. What evidence do you have that the Britax jogging
stroller information campaign has adequately addressed the hazard? What
percentage of the strollers have been removed from use or repaired with
a fix that actually works?
Answer. Please see attached CSPC staff response.
Question 27. How does the Consumer Product Safety Improvement Act
(CPSIA) protect consumers from the sale of products that are subject to
``information campaigns''?
Answer. I believe that the public is unlikely to be alerted to the
hazards of products in the market unless the Commission can properly
refer to a Corrective Action Plan (CAP) as a ``recall.'' As
Commissioner Elliot Kaye and I wrote in our dissent to Britax's
``information campaign'' such an approach to remediation in the market
is aggressively misleading. I deeply regret that the Commission's
majority has offered its blessing to such an approach. Please see the
attached dissenting opinions by Commissioner Kaye and me.
Question 28. So, without an official recall, consumers who buy
these strollers second-hand will have no legal remedy against the
seller for being sold the product without being advised of the
information campaign or for being sold the product without the ``free
modified thru-bolt or free modified quick release'' incentive for
consumers who participate in the information campaign. Is that correct?
Answer. This is one of the many concerns I have with the CAP.
Please see the attached dissent that Commissioner Kaye and I wrote.
Question 29. Why is it so problematic that the CPSC's settlement
with Britax is not characterized as a ``recall''?
Answer. Britax's settlement with CPSC should have been
characterized as a recall. Please see the attached dissent that
Commissioner Kaye and I wrote.
Recall Effectiveness of IKEA Dressers
The CPSC is in the midst of overseeing the IKEA dresser recall that
currently involves 17 million dressers. We now know of at least 9
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds
and removal of the dressers from use--has been hovering at about 1
percent and we know that at least one death occurred after the recall
was announced, with no reported knowledge by the parents of the recall.
Question 30. What steps should the CPSC take to make this recall
more effective to prevent other children from being injured or killed
from these unstable dressers?
Answer. CPSC should continue to work with IKEA to persuade them to
develop a more comprehensive approach to alerting parents of the
hazards of the IKEA dressers. While not all the hazardous dressers can
be removed from consumers' homes, a better response rate should be
sought. A company with IKEA's marketing expertise in selling these
dressers should be able to take more effective recall measures.
Question 31. The IKEA furniture recall involves at least 17 million
dressers. What percentage of those recalled dressers are out of
people's homes?
Answer. Please see attached CSPC staff response.
Question 32. Have you met with IKEA? When you met with them, how
did you discuss holding IKEA accountable for this recall?
Answer. I have met with IKEA to see their progress in improving the
safety of their dressers and other easily tipped furniture.
I have not met with IKEA about their recall of the hazardous
dressers. As a general rule, I do not meet with companies to discuss
the specifics of recalls because that is the job of CPSC staff under
the executive and administrative direction of the Chairman. I closely
monitor the progress of recalls and provide strong policy advice to
both staff and the Chairman.
Question 33. What have you done and what are you committed to doing
to decreasing the numerous amount of deadly dressers still in people's
homes?
Answer. I have been and remain extremely concerned about the
hazards associated with the tipover of furniture. Specifically, I have
joined with my colleague, Commissioner Elliot Kaye, in seeking
Commission approval for the development of a safety standard for
children's clothing storage units (CSU) under section 104 of the
Consumer Product Safety Improvement Act. We have argued--unsuccessfully
so far--that CPSC needs to draft a rule under the streamlined
provisions of section 104 to protect infants. We also support the
Commission's direction to staff to develop a safety standard under
sections 7 and 9 of the Consumer Product Safety Act for a broader rule
to address tipover hazards. We are concerned, however, that relying
solely on the latter approach will take many years for the standard to
be drafted, whereas an effective 104 rule can be developed in a much
shorter time frame. I note, for example, that CPSC has written roughly
20 safety standards under section 104 in the past 10 years, whereas we
have managed to eke out only one standard under the more cumbersome
provisions found in sections 7 and 9 in that same time period.
Update on Crumb Rubber Study
It has now been more than three years since the CPSC, in
coordination with the EPA and CDC, first announced it would be studying
crumb rubber.
Question 34. When is this study going to be complete?
Answer. Please see attached CSPC staff response.
Question 35. What is the delay?
Answer. Please see attached CSPC staff response.
Question 36. Do you believe the EPA and partner agencies are still
fully completed to this research? Have you talked to them about it?
Answer. Please see attached CSPC staff response.
Section 6(b) of the Consumer Product Safety Act
The CPSC, alone among safety agencies, has a provision--Section
6(b) of the Consumer Product Safety Act--that typically prevents the
CPSC from sharing product specific safety information with consumers
without express permission from the company in question.
It is often felt that this delays consumers from getting vital
information they could use to keep their families safe. For example,
the Fisher-Price Rock `n Play recall was preceded by a vague warning
that did not identify the product a year before the recall.
However, the CPSC seems to be going out of its way to make it
difficult for consumer advocates and researchers to evaluate risk to
consumers and even whether companies are doing their job in executing
effective recalls.
For example, Nancy Cowles of Kids in Danger says she has submitted
Freedom of Information Act requests documents to shed light on the
recall effectiveness of IKEA's recall on unstable dressers.\3\ However,
those documents are redacted completely, down to the number of Facebook
posts a company will share about a recall. As she is quoted saying in
article: ``I could just go count that. How could that be protected?''
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\3\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis
Question 37. Does it make sense that the CPSC is redacting
information about public Facebook posts about recalls? Do you think it
is appropriate that Section 6(b) really limits such information
disclosures?
Answer. Section 6(b) requires the Commission, at least 15 days
prior to issuing any information that would enable the public to
identify a particular manufacturer (or private labeler), to provide a
summary of the information that the Commission plans to release to the
subject firm and to provide the firm a reasonable opportunity to
comment on the proposed information release. This section requires the
Commission to take reasonable steps to assure that the information to
be released is accurate and that disclosure of the information is fair
in the circumstances and reasonably related to effectuating the
purposes of the Consumer Product Safety Act.
As noted in the question, no other agency in the Federal government
operates under such restrictions. In practice, section 6(b) adds
unnecessary time and expense to the Commission's operations. Although
this section may look benign on its face, it hampers the timely release
of critical safety information to the public with few, if any,
corresponding benefits. In my experience, manufacturers rarely invoke
section 6(b) to improve the accuracy or fairness of proposed CPSC
information releases. Instead, they use the threat of expensive and
lengthy litigation under section 6(b)(3)(A) to try to water down
Commission press releases designed to warn the public of dangerous
products.
With respect to the propriety of redacting publicly available
information on Facebook, I see no basis whatsoever for doing that. Once
a recall is approved by CPSC and a subject firm, information that the
parties have agreed to release about the recall should be available to
the public in all settings and places. That said, as I understand it,
manufacturers and private labelers almost always insist that
effectiveness information specific to their recalls be treated as
confidential business information pursuant to section 6(a)(2) of the
Consumer Product Safety Act. Whether such claims are valid is an open
question.
Question 38. Will you commit to making sure the CPSC does not
restrict the disclosure of information more than is required by
statute?
Answer. I am committed to working with my colleagues on the
Commission to limit the harmful effects of 6(b). When I was acting
chairman, in February 2014, the Commission published a Notice of
Proposed Rulemaking (NPR) to modernize and streamline our regulations
relating to 6(b). I continue to support those amendments and continue
to engage my fellow commissioners on finding the best path forward.
Please see the attached statement I issued upon approval of the NPR.
Question 39. Do you think Section 6(b) hinders the agency's safety
mission (yes or no) and as long as that provision is on the books will
you commit to support the agency restricting disclosure of information
about a product or company to no greater an extent than required by
statute?
Answer. Yes, 6(b) hinders CPSC's safety mission. As discussed
above, I believe CPSC's regulations should be amended so that the
disclosure of information is no more than required by statute.
Question 40. What Internet platforms does CPSC have established
relationships with?
Answer. Please see attached CSPC staff response.
Question 41. What special tools do CPSC staff have to review and
flag violative products sold on the Internet?
Answer. Please see attached CSPC staff response.
Internet of Things
Acting Chair Buerkle recently said in reply to a letter in reply to
consumer privacy organizations, ``CPSC's authority will not generally
extend to situations solely related to consumer privacy or data
security, that do not pose a risk of physical injury or illness, or
property damage.''
On the contrary, the CPSC should be doing more to recognize that
consumer privacy and data security pose real and urgent threats to the
well-being and safety of consumers. Insecure products can be hacked to
spy on children, trip up smoke detectors, and more.
Question 42. How can the CPSC leverage its expertise in keeping
dangerous products off of shelves, to also keep insecure products that
threaten people's safety out of people's homes?
Answer. If an unsafe product creates an unreasonable risk of
injury, the CPSC can either write a safety standard to reduce or
eliminate the unreasonable risk or, in an appropriate case, ban the
product. If a product in the market presents a substantial product
hazard, CPSC has the authority to pursue a recall of the product.
Question 43. What is the best way to protect vulnerable consumers
as new products enter the market without standards--such as connected
products? Is enough money allocated to compliance and enforcement
divisions?
Answer. The best way to protect consumers from the risks of new
products entering the market without standards is through enhanced
market surveillance. I believe that the agency needs added resources to
monitor and address the numerous safety issues that arise with respect
to unsafe connected products that fall under our jurisdiction.
Kids in Danger Report: Social Media Practices
Kids In Danger (KID), a non-profit organization dedicated to
protecting children by fighting for product safety, released its latest
report in March.\4\ It found that both the CPSC and manufacturers
posted recalls on Facebook at lower rates in 2018 compared to 2017.
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\4\ https://kidsindanger.org/2019/03/kid-releases-annual-report-on-
recalled-childrens-products/
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CPSC posted only 45 percent of 2018 children's product recalls on
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
In addition, of the 48 manufacturers that issued recalls in 2018,
only 31 percent were announced on the company's Facebook page--down
from 51 percent in 2017.
Question 43. Why isn't the CPSC using all tools at its disposal to
make sure recalls are made known?
Answer. CPSC should be using all available communication strategies
to publicize recalls. While the agency is unfairly limited in many of
its communications by section 6(b)'s restrictions on information
disclosure, there are times when the agency could and should do more to
warn consumers of risks from product categories. In those instances
where 6(b) is not implicated, I continue to urge our Communications
division to think creatively about ways to notify consumers about
hazardous products.
Question 44. Why isn't the CPSC requiring manufacturers to issue
notices on manufacturers' Facebook pages? Why isn't that a standard
part of the corrective action plan?
Answer. Firms that do not voluntarily agree to use social media are
not required to do so by our regulations. Our regulations should be
modernized to address the use of social media and other available
technologies to alert consumers about recalled products.
Can a product that meets an existing standard be defective?
We are hearing increasingly often from companies that just because
their product is meeting a safety standard, their product can't be
defective and can't be subject to a recall. For example, Britax, the
maker of the B.O.B. jogging stroller argued that a product defect
required the violation of a safety standard. And the B.O.B. had passed
a test that required the removal front wheel to stay on after a strong
pull.
IKEA has also said the same thing about the Hemnes 8-drawer dresser
that killed a 2 year-old.
Question 45. If a product meets an existing standard but is killing
or seriously injuries children and babies, wouldn't you agree the
product should be recalled?
Answer. Yes. Safety rules can sometimes fall short in fully
protecting the public or can become obsolete in light of new
technologies. That a product complies with an existing standard should
never be an impediment to corrective action. On this point, I note that
the law has long been clear that compliance with either a government or
voluntary standard may provide some evidence of due care in a product
liability case, but is not dispositive.
In other words, one hopes that safety standards will reduce or
eliminate injuries and fatalities, but they should never be relied upon
as an exclusive approach to safety.
Question 46. Would you agree that the CPSC has the authority to
recall a product if it believes it poses an unreasonable risk of
serious injury or contains a defect that presents a substantial product
hazard--even if the product meets all existing standards?
Answer. Yes. See my answer to question 45.
Question 47. Can a product be recalled if it meets an existing
standard?
Answer. Yes. See my answer to question 45.
Question 48. Wouldn't you agree that if deaths and injuries are
occurring, the products may still be defective and a recall may be in
order?
Answer. Yes. See my answer to question 45.
Question 49. What are some examples of companies that have
voluntarily recalled products that didn't necessarily violate a
specific product standard?
Answer. I am reluctant to single out specific companies. Suffice it
to say, one of the major building blocks of CPSC authority is section
15, which specifically authorizes the agency to seek recalls when their
product contains defects that present a substantial product hazard even
when there is no applicable safety standard.
Question 50. What role do you have in encouraging a manufacturer to
agree to a voluntary recall?
Answer. As a general rule, I do not meet with companies to discuss
the specifics of recalls because that is a job of CPSC staff under the
executive and administrative direction of the Chairman. I believe that
manufacturers who distribute dangerous products in the market should
take strong and timely measures to recall them.
Enforcement of the Child Nicotine Poisoning Prevention Act
I am very concerned about the CPSC's enforcement of the Child
Nicotine Poisoning Prevention Act, which became law three years ago and
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers.
The agency has moved slowly to enforce this law, and public action has
primarily consisted of sending notices to industry about the
requirements.
Question 51. Is the agency doing any market surveillance on this
issue to identify non-compliant products? Have you done any surveys of
industry?
Answer. Please see attached CPSC staff response.
Question 52. Have you taken any enforcement action or enforced
civil penalties for failure to comply with the law? If not, why not?
Answer. Please see attached CSPC staff response.
uestion 53. Are there authorities the agency is not using that it
should be to address products that pose a child health hazard like
liquid nicotine?
Answer. Please see attached CSPC staff response.
Keeping Fellow Commissioners in the Dark
I am troubled by reporting that Acting Chairman Buerkle withheld
information from fellow Commissioners about defect investigations and
incident data--even when briefings have been requested. All
commissioners must have fair access to the information they need in
order to make informed and educated decisions--especially when voting
on matters.
For example, The Washington Post has already publicly reported on
how Democratic Commissioners felt in the dark about the Britax jogging
stroller investigation and frustrated by Acting Chairman Buerkle's
control of the flow of information.
Question 54. Did you feel like you were adequately informed and
briefed prior to your vote agreeing on the Britax settlement, and in
retrospect?
Answer. After a formal staff briefing on the matter, which my
fellow Commissioners and I sought, I feel that I was adequately
informed and briefed prior to the Britax vote. However, I do not
believe I was adequately informed prior to the briefing. The only
notice I had received was a one-line summary in a report by Compliance
staff that simply noted that staff had opened a defect investigation to
address ``front wheel detachment'' on Britax strollers. The report
failed to indicate that staff had been negotiating with the firm for
many months and had reached an impasse. I believe that the Commission
should have been alerted to the impasse and briefed about the issues.
Question 55. What do you need to do your job better?
Answer. The agency needs additional resources to monitor and
address the numerous safety issues that arise with respect to the
roughly 15,000 product categories that fall under our jurisdiction.
Question 56. Do you feel like you have access to CPSC staff
expertise necessary to faithfully perform your job duties?
Answer. Generally, yes. There have been occasions, however, where I
had to pursue information from staff that should have been more readily
available.
CPSC FTE Vacancies
As so many of you have noted, the CPSC does a lot on a tiny budget.
However, I'm concerned by a growing number of vacancies at the CPSC and
how this might be affecting the agency's ability to fulfill its
important mission.
Question 57. How many FTEs are vacant?
Answer. Please see attached CSPC staff response.
Question 58. How do these vacancies affect the CPSC's ability to
carry out its critical safety mission?
Answer. Please see attached CSPC staff response.
Question 59. Why are these vacant? When do you anticipate they will
be filled?
Answer. Please see attached CSPC staff response.
Question 60. Is there anything preventing these FTEs from being
filled?
Answer. Please see attached CSPC staff response.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Robert S. Adler
I appreciate that on March 8, CPSC clarified in a letter for
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'')
requires both child resistant packaging and flow restrictors for liquid
nicotine containers. Both of these product safety requirements are
important for preventing unintentional child ingestion of liquid
nicotine. CPSC had previously advised industry about the law's
requirements for child resistant packaging, but had not yet also
communicated the law's requirement for flow restrictors, despite the
reference to that requirement in the law's statutory language. However,
I am concerned that current ambiguity about the interaction of this
requirement with U.S. Food and Drug Administration (FDA) policy could
undermine the successful enforcement of the CNPPA.
As part of its process to assert its jurisdiction over electronic
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products
introduced after the August 8, 2016, effective date immediately subject
to the requirement for FDA authorization through the Premarket Tobacco
Product Application process. This includes both new products and
modified versions of previously marketed products. It is therefore
unclear whether changes to liquid nicotine containers to comply with
the flow restrictor requirements could potentially result in FDA
considering the product to be a new product, requiring Premarket
Tobacco Product Application authorization. While Congress clearly
provided this regulatory authority to CPSC before the FDA Deeming Rule,
I am concerned that ambiguity on the overlap of authority between the
agencies could lead to industry noncompliance with the CNPPA's flow
restrictor requirement, putting children at risk. In order to address
that possibility, I would appreciate your responses to the following
questions:
Question 1. Has the CPSC taken any enforcement action for liquid
nicotine containers for noncompliance with either the child resistant
packaging or flow restrictor requirements? If so, please provide
details on the extent of those enforcement actions.
Answer. Please see attached CSPC staff response.
Question 2. Have the CPSC commissioners or staff communicated with
FDA about the potential interaction of the CNPPA flow restrictor
requirement and the FDA Deeming Rule?
Answer. Please see attached CSPC staff response.
Question 3. Do the CPSC and FDA have plans to take any action to
provide clarity that ensures manufacturers follow the flow restrictor
requirements in CNPPA?
Please see attached CSPC staff response.
Children's Cosmetics
A recent study by Nationwide Children's Hospital and Ohio State
University examined injuries from cosmetics and other personal care
product--including nail care, hair care, skin care, and fragrance
products--to children under the age of 5 years old.
The authors used the CPSC's National Electronic Injury Surveillance
System to estimate that, nationwide, about 64,000 children had visited
hospital emergency departments for these injuries between 2002 and
2016.
Each year, about 4300 children are treated in emergency departments
for these injuries.
From this analysis, we know that these injuries happen at home and
that ingestion is the main route of exposure. But chemical burns and
eye injuries from children spraying fragrance into their faces are also
notable types of injury.
In light of this study, I have a few questions:
Question 1. What can the CPSC do to protect young children from
harm caused by personal care products?
Answer. Although CPSC compiles data regarding such injuries,
section 3(a)(5)(H) of the Consumer Product Safety Act generally
excludes cosmetics from CPSC jurisdiction. Please also see attached
CSPC staff response.
Question 2. Could product safety standards be developed that would
reduce the risk of injury to children from personal care products?
Answer. Yes, although I do not believe that CPSC has the authority
to address cosmetics.
Question 3. Do you believe warning letters are effective at
reducing injury? Why or why not?
Answer. Depending on the nature of the warning letters, I believe
they can play a role in reducing injury. Eliminating hazards from the
market through recalls is much more effective, and we should always
seek to do that first.
______
Response to Written Questions Submitted by Hon. Tammy Duckworth to
Hon. Robert S. Adler
While much progress was made on sudden unexplained infant death
(``SUID'') in the 1990s, little progress has been made in reducing SUID
over the past decade. In some high-risk groups, rates are going in the
wrong direction. The U.S. Centers for Disease Control and Prevention
(CDC) estimate that in 2017 there were about 3,600 SUID cases in the
U.S. Many products--everything from crib bumpers, nests or pillow--like
products and sleep positioners--are made and sold to help infants
sleep. The FDA has warned against sleep positioners and safe sleep
advocates warn against the use of crib bumper pads. Many of these
products meet no standard--mandatory or voluntary. The CPSC is in a
unique position to help address the public health problem of SUID
through its jurisdiction over infant products and opportunities to
communicate with families, caregivers and health care providers.
Question 1. What will you do, beyond education and awareness, to
push CPSC to use its authority to increase safe sleep among high-risk
families and to reduce the hazard posed by certain infant sleep
products such as crib bumpers and other untested products?
Answer. Although education and awareness campaigns have a place in
CPSC's regulatory toolbox, I generally support what is widely known as
the ``safety hierarchy,'' \5\ which prioritizes approaches to product
hazards as follows:
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\5\ See Marc Green, Safety Hierarchy: Design versus Warnings (2000)
https://www.visual
expert.com/Resources/safetyhierarchy.html
---------------------------------------------------------------------------
First, redesign products to eliminate the hazard.
Second, shield the hazard to place it away from the
consumer.
Third and last resort, warn about the hazard if redesign and
shielding are not feasible.
I particularly support safety standards (and bans, where necessary)
in instances where infants are at risk. Young children are involuntary
risk takers and deserve the highest care and attention that CPSC, as a
safety agency, can provide.
Question 2. The CPSC is currently working with the American Society
for Testing and Materials (ASTM) and the Juvenile Products
Manufacturing Association (JPMA) on a standard for crib bumper pads,
despite the broad view that these products are unnecessary and unsafe.
However, rather than looking at the evidence that bumpers reduce the
flow of air in a crib, CPSC is working on testing the firmness of
bumpers. Are you at all worried that this will not address the hazard
pattern and put CPSC's stamp of approval on a dangerous product?
Answer. I have been particularly concerned about the hazards
associated with crib bumpers for quite a long time. I have no objection
to staff testing the firmness of bumpers, but my understanding is that
the main hazard associated with this product is reduced airflow to
infants who roll over and place their mouths and noses next to the
bumpers.
______
Attachments
U.S. CONSUMER PRODUCT SAFETY COMMISSION
DISSENTING OPINION OF COMMISSIONERS ROBERT S. ADLER AND ELLIOT F. KAYE
ON MOTION TO ADD A PROJECT ON CHILDREN'S FURNITURE TIPOVER TO FY 2020
PERFORMANCE BUDGET REQUEST TO CONGRESS
MARCH 20, 2019
On March 13, 2019, we proposed an amendment to the FY 2020 Budget
Request to Congress that would have added the drafting of a Notice of
Proposed Rulemaking (NPR) for Children's Clothing Storage Units
(CSU)\1\ under section 104 of the Consumer Product Safety Improvement
Act (CPSIA).\2\ To our great disappointment, the Commission, by a vote
of 3-2, opposed our amendment.
---------------------------------------------------------------------------
\1\ We use the term Clothing Storage Unit (CSU) as a broad term to
describe chests, bureaus, and dressers.
\2\ 15 USC Sec. 2056a.
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Injuries and Deaths
Our reason for proposing such an amendment is our grave concern for
the safety and welfare of young children who face severe risks from
CSUs toppling over on them. We believe the need for prompt action to
protect vulnerable kids from death and injury is overwhelming. Even a
brief review of tipover fatalities and injuries to young children shows
that clothing storage units constitute one of the most tragic and
compelling safety issues at CPSC.
From January 2, 2000 to December 31, 2016, roughly 75
children 5 years of age or younger died from tipovers of
chests, bureaus, or dressers.
From January 1, 2006 to December 31, 2016, roughly 39,600
children 6 years of age or younger went to emergency rooms for
injuries sustained when a chest, bureau, or dresser fell on
them.
In fact, the majority (approximately 80 percent) of all
furniture tipover deaths involve children 5 years or younger,
and this percentage has not changed over time.
What We Proposed--and What We Didn't Propose
We think it important to state precisely what we proposed and what
we did not propose. Here is what we proposed: a simple, quick
development of a proposed safety rule for Commission consideration
under section 104 of CPSIA--a time-tested and efficient approach to
protecting children. Here is what we did NOT propose--to halt or slow
ongoing work on the development of a broader rule under sections 7 and
9 of CPSA \3\ to address furniture tipovers. To the contrary, we fully
understand that our proposal is limited to a subset--children's CSUs.
We think it is a substantial subset, but a subset nonetheless, of the
clothing storage units that present a hazard to children. But, just
because we can't protect all kids immediately doesn't mean that we
shouldn't protect as many as we can as quickly as we can.\4\
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\3\ 15 USC Sec. 2056 and 15 USC Sec. 2058.
\4\ On that point, we acknowledge work in the Congress that is
currently underway to pass what is known as the STURDY Act. If enacted,
the STURDY Act will authorize the Commission to promulgate, under the
streamlined procedures of section 553 of the Administrative Procedure
Act (APA), a broad-based consumer product safety standard for clothing
storage units beyond those specifically intended for children. To say
the least, passage of the STURDY Act would cover a larger group of
furniture while permitting the Commission to use procedures currently
available to the agency only for children's products under section 104
of CPSA.
---------------------------------------------------------------------------
Inadequacies of the Current Voluntary Standard
We offered an amendment to take an ASTM voluntary standard, F2057-
17, for clothing storage units as a foundation, under section 104 of
the CPSIA, to draft a proposed standard for children's clothing storage
units. At the moment, ASTM F2057-17 is under review and revision.\5\
Regrettably, we see little progress and much foot-dragging in current
deliberations towards a meaningful upgrade in safety. Among the
problems with the current standard--
---------------------------------------------------------------------------
\5\ ASTM F2057 was first approved in 2000 and has been revised
several times, with the most recent revision published on October 1,
2017.
The test weight for stability is a specially-configured 50
pound weight hung gently on an open drawer to see if the
clothing storage unit will tip over. Unfortunately, this
requirement fails to account for the recent increase in size of
children in recent years, which means that many fewer children
---------------------------------------------------------------------------
are being protected by this standard.
Equally disturbing is the unrealistic nature of the test
protocol. Alas, children do not gently hang from open drawers.
In fact, they climb up quickly and often swing from open
drawers, thereby exerting stronger downward pressure and
enhanced stability challenges to dressers and other CSUs.
Another shortcoming in the current standard is the height
restriction. ASTM F2057-17 covers only dressers 30 inches or
higher while current fatality data show that children have died
under dressers shorter than 30 inches.
Yet another shortcoming is the failure of the test protocol
to replicate real-world conditions in homes where furniture is
often placed on top of carpeting and carpet tack strips. These
conditions present different risks than the hard, flat, level
surfaces called for in the ASTM test protocol.
CPSC staff has shared these and other concerns with the ASTM
working group currently working on revising ASTM F2057-17.
Unfortunately, we have little reassurance that these concerns are being
addressed. To the contrary, we have the strong impression that the
working group simply will not take meaningful safety steps unless and
until they are convinced that CPSC will take mandatory action. To us,
that is unacceptable.
Advantages of Section 104 Rulemaking Versus Sections 7 and 9 Rulemaking
Our motion would apply the technical and engineering research
currently underway for a rule under sections 7 and 9 of the CPSA to
protect children under 104 rulemaking because the latter is
demonstrably faster and more efficient than the extremely cumbersome
procedures required by sections 7/9.\6\ We note, for example, in the
ten years that section 104 has been part of the CPSA, the agency has
drafted roughly 20 safety standards under this section to protect our
youngest and most vulnerable consumers. In sharp contrast, CPSC has
drafted precisely one standard under sections 7 and 9.
---------------------------------------------------------------------------
\6\ We reiterate that our approach should not slow or delay the
Commission's work on developing a rule under sections 7 and 9 since the
engineering and technical approaches will be the same for both
rulemaking efforts.
---------------------------------------------------------------------------
Even a quick glance at the procedures and findings required to
undertake rulemaking under a 7/9 approach versus those under section
104 dramatically illustrates the burdens of rulemaking under sections 7
and 9. By our count, the Commission has to make well over a dozen
statutorily mandated findings in the course of taking numerous separate
regulatory steps in order to promulgate a safety standard when we write
7/9 rules. And, any slip or technical violation of these requirements
exposes the rule to legal challenge--which almost inevitably follows
when we write such rules. And, frankly, we have yet to see a single
standard that has been improved by following these extra steps.
In sharp contrast, drafting a 104 rule requires only that the
Commission follow the traditional informal requirements of section 553
of APA with one additional step (consulting with representatives of
consumer groups, juvenile product manufacturers, and independent child
product engineers and experts to examine the efficacy of existing
voluntary standards) and one additional finding (that the requirements
of a 104 rule be substantially similar to the voluntary standard or be
more stringent if the Commission determines that a more stringent
standard would further reduce the risk of injury). And, we note, to
date, the Commission has faced no legal challenges to our 104 rules.
Conclusion
We believe that the time for more decisive action is before us. In
making this point, we continue to hold out the hope that the ASTM
process will quickly and effectively produce a good voluntary standard
that is substantially complied with.
If CPSC is to carry out our critical mandate to protect our most
vulnerable consumers, we believe it essential that the Commission
declare now our intention to use the full panoply of tools available to
us to meet this mandate.
______
The following responses were prepared by CPSC staff for all
Commissioners. They are provided here without edit or comment. Any
subjective information represents the view of CPSC staff and may or may
not reflect Commissioner Adler's view. Factual and/or objective
information is presumed to be accurate.
In addition, the CPSC Office of the General Counsel has provided
the following statement for the Subcommittee:
Section 6 of the Consumer Product Safety Act (CPSA) prohibits
the public disclosure of manufacturer specific information
provided to the Agency by manufacturers, distributors and
retailers under mandatory reporting requirements of Section 15
of the CPSA. This information often includes sensitive
confidential commercial information and is also prohibited from
public disclosure by section 6(b) of the CPSA unless the
Commission has followed specific procedures for advance notice
and comment.
Section 6(a)(7) of the Consumer Product Safety Act prohibits
the withholding of information by the Commission or any officer
or employee under its control from the duly authorized
committees or subcommittees of the Congress. Consistent with
this provision the Commission has issued regulations
implementing section 6 at 16 CFR Sec. 1101.12(g) excluding the
``Chairman or ranking minority member of Congress acting
pursuant to committee business. . .'' from the definition of
``public.''
A few of the responses to the questions by the ranking or
committee members require disclosure of product specific and
sensitive confidential commercial information. Because this
information will become part of the ``public'' record of the
June 20, 2019 hearing [I] would respectfully request that
counsel for the subcommittee work with our Office of
Legislative Affairs to find a forum appropriate for response
without making this sensitive confidential and commercial
information part of the public record of the hearing.
Commissioner Adler will reply to these Section 6-implicated
questions with the following statement, drafted by CPSC staff:
I cannot comment on this matter as part of a published public
hearing record but CPSC staff is available to discuss this issue with
you privately.
______
Responses to Written Questions Submitted by Hon. Maria Cantwell to
Commissioner Robert Adler
Tip Overs:
Question 2. Has the Commission reviewed safety issues associated
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any
such review.
I cannot comment on this matter as part of a published public
hearing record but CPSC staff is available to discuss this issue with
you privately.
Question 3. What activities does the Commission take to ensure that
consumers who own recalled products are directly notified of a
potential safety issue (as opposed to general education campaigns)?
Please describe these activities in detail.
CPSC strives to maximize direct notification to the best of the
firm's capabilities when negotiating recalls. When a firm demonstrates
that they are able to directly contact 95 percent+ consumers who have
purchased a recalled product, CPSC will issue a Recall Alert rather
than a Press Release.
Question 4. Has the Commission reviewed any voluntary standards
associated with dressers? Please share the details of any such review.
Does the Commission have any planned activities to improve the safety
of dressers? If so, please describe such activities in detail.
Staff is actively engaged with ASTM 15.42 Subcommittee for Clothing
Storage Units to improve the ASTM standard F2057-17. Improvement
efforts are centered on consumer interactions with product and consumer
use scenarios identified in the ANPR. Staff are active members of task
groups supporting the subcommittee working on issues such as: dynamic
testing, multiple/loaded drawer testing, carpet testing, testing
repeatability and operational slide length. Staff is researching new
test methodologies based on available incident data and testing over
185 samples which represent a variety of CSUs designs on the market
today.
______
Responses to Written Questions Submitted by Hon. Richard Blumenthal to
Commissioner Robert Adler
Infant Inclined Sleepers
On April 6, Consumer Reports reported there have been at least 32
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby
product that belongs to a category of products known as ``infant
inclined sleepers.'' On April 11, Consumer Reports reported there have
been at least 4 infant deaths linked to a similar product manufactured
by Kids II. It was only after the publication of these two articles and
the ensuing public outrage that the manufacturers involved agreed to
work with CPSC to recall these deadly products.
Question 1. Was the CPSC aware of these infant fatalities before
Consumer Reports published these figures?
Yes
Window Covering Safety
In December 2018, a new window covering standard went into effect
that bans cords on stock products.
Question 12. Please provide detailed market data underlying the
claim that the new window covering standard, which applies to stock
products sold in stores and online, actually accounts for more than 80
percent of all window covering products sold in the United States.
This statement originated from a WCMA member in a meeting between
CPSC and WCMA in May 2015. The basis for this statement was a 2015
KeyStat study. This study was provided to CPSC staff as confidential
business information by one of the WCMA members.
Question 13. Do most daycares and preschools have stock or custom
window coverings? Please provide data for your answer.
We do not have data that provide a stock versus custom breakout for
daycares/preschools.
Question 14. Do most affordable housing units have stock or custom
window coverings? Please provide data for your answer.
We do not have data that provide a stock versus custom breakout for
affordable housing.
Question 15. Do most military housing units have stock or custom
window coverings? Please provide data for your answer.
We do not have data that provide a stock versus custom breakout for
military housing.
Question 16. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing in stores.
If consumer intends to purchase a window covering off-the-shelf in
a store, those products are classified as stock are subject to the
stock window covering requirements (i.e., cordless, short cord, or
inaccessible cord).
Question 17. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing online.
The window covering standard requires a warning label on the
website if the website is relied upon for promoting, merchandising, and
selling online. This way, the consumer is informed about the
strangulation hazard while placing an order for a corded custom window
covering. CPSC staff has suggested to the WCMA technical committee that
a guidance document for online sales of stock and custom products be
useful to add to the standard.
Question 18. What is the CPSC doing to monitor compliance with the
new window covering standard? How can the CPSC enforce when it's
unclear whether a product is stock or custom?
CPSC is monitoring the sale of corded window coverings on online
platforms and developing plans to monitor at ports and in retail
stores.
In order to comply with the ANSI/WCMA voluntary standard, all
products should be designated as ``Custom'' or ``Stock'' on the
manufacturer label, using a ``C'' or the word ``Custom,'' or an ``S''
or the word ``Stock'', respectively. Stock products are substantially
fabricated in advance of being distributed in commerce and in advance
of any specific consumer request for that product. Such product is
likely a stock product if it appears online readily available to ship,
and has limited/specific pre-determined sizing, color, and material
options.
Illegal Sale of Recalled Products
As yard sales and garage sales move online, the CPSC must keep up
with the times and work with online platforms that facilitate the sale
of used products to make sure they have strong policies in place that
protect consumers from unwittingly purchasing hazardous recalled
products. It is important that the CPSC continue to vigorously enforce
the prohibition on the sale of recalled products, pursuant to the
Consumer Product Safety Improvement Act of 2008. In the wake of the
recall of Fisher Price Rock `n Play, we continue to see too many of
these products sold on secondary online marketplaces.
Question 21. Please provide a list of all Internet platforms (i.e.,
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established
relationships with. For each platform, please describe:
When and how that relationship was established.
CPSC has relationships with a number of platforms,
some of them for well over a decade including:
eBay
Overstock.com
Alibaba
Craigslist
Facebook and Facebook Marketplace
Oodle
Shopgoodwill
Amazon
Letgo
Offer Up
Any special tools the platform has provided to the CPSC to
help monitor the illegal sale of recalled products on the
platform.
No special tools, however we have established CPSC relationships
and ongoing discussions.
Any special tools the platform has provided to the CPSC to
report the illegal sale of recalled products on the platform.
No special tools, however we have established CPSC relationships
and ongoing discussions.
Information Campaigns vs. Recalls
The CPSC seems to increasingly likely to agree to settlements with
companies that exclude the word ``recall''--like its recent settlement
with Britax jogging strollers in which the company was ``pleased to
announce'' a resolution that didn't include a recall or formal
correction plan. Consumers lose out on important legal protections when
recalls aren't called what they should be--``recalls.'' For example,
they may be more susceptible to purchasing second-hand products that
haven't been repaired.
Question 26. What evidence do you have that the Britax jogging
stroller information campaign has adequately addressed the hazard? What
percentage of the strollers have been removed from use or repaired with
a fix that actually works?
I cannot comment on this matter as part of a published public
hearing record but CPSC staff is available to discuss this issue with
you privately.
Recall Effectiveness of IKEA Dressers
The CPSC is in the midst of overseeing the IKEA dresser recall that
currently involves 17 million dressers. We now know of at least 9
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds
and removal of the dressers from use--has been hovering at about 1
percent and we know that at least one death occurred after the recall
was announced, with no reported knowledge by the parents of the recall.
Question 31. The IKEA furniture recall involves at least 17 million
dressers. What percentage of those recalled dressers are out of
people's homes?
I cannot comment on this matter as part of a published public
hearing record but CPSC staff is available to discuss this issue with
you privately.
Update on Crumb Rubber Study
It has now been more than three years since the CPSC, in
coordination with the EPA and CDC, first announced it would be studying
crumb rubber.
Question 34. When is this study going to be complete?
On July 25, 2019, EPA released its Synthetic Turf Field Recycled
Tire Crumb Rubber Characterization Research Final Report: Part 1--Tire
Crumb Rubber Characterization.
The Synthetic Turf Exposure Characterization data collection
(ATSDR) is still ongoing; the CPSC's Playground Use Survey is
completed, and a final contractor's report is due to staff by July 26,
2019. Any CPSC Risk Assessment studies regarding recycled tire rubber
in playground surfacing will consider the findings of the Tire Crumb
Characterization and the Synthetic Turf Exposure Characterization. CPSC
staff anticipates a Risk Assessment for playground surfacing could be
available about 12 months after we receive the Synthetic Turf Exposure
Characterization Report.
Question 35. What is the delay?
CPSC staff does not agree that there is a delay. The initial FRAP
announcement noted that the schedule was ambitious. The deliverable
described in the February 2016 FRAP announcement was, ``By the end of
2016, the agencies anticipate releasing a draft status report that
describes the preliminary findings and conclusions of the research
through that point in time.'' A draft status report was published at
the end of 2016; that milestone was met. However, because there was
still work to be done to answer these questions, the partner agencies
continued with their research in pursuit of quality science and in
compliance with time-consuming administrative steps required by law
(e.g., Paperwork Reduction Act).
The CPSC's Playground Use Survey is completed, and a final
contractor's report is due to staff by July 26. This contract is on
schedule. The survey is the only task specifically assigned to CPSC in
the FRAP announcement. When the FRAP partner agencies' data are
available, CPSC staff will act as quickly as possible to apply those
data in risk assessment activities specific to playground surfaces.
Question 36. Do you believe the EPA and partner agencies are still
fully completed to this research? Have you talked to them about it?
Work at EPA and ATSDR has been continuous since 2016 (see response
to Question 33). CPSC staff keeps apprised of the activities at EPA and
ATSDR. EPA is planning to brief CPSC senior management on its Tire
Crumb Characterization Report. ATSDR's Synthetic Turf Exposure
Characterization data collection is still ongoing.
Section 6(b) of the Consumer Product Safety Act
The CPSC, alone among safety agencies, has a provision--Section
6(b) of the Consumer Product Safety Act--that typically prevents the
CPSC from sharing product specific safety information with consumers
without express permission from the company in question.
It is often felt that this delays consumers from getting vital
information they could use to keep their families safe. For example,
the Fisher-Price Rock `n Play recall was preceded by a vague warning
that did not identify the product a year before the recall.
However, the CPSC seems to be going out of its way to make it
difficult for consumer advocates and researchers to evaluate risk to
consumers and even whether companies are doing their job in executing
effective recalls.
For example, Nancy Cowles of Kids in Danger says she has submitted
Freedom of Information Act requests documents to shed light on the
recall effectiveness of Ikea's recall on unstable dressers.\1\ However,
those documents are redacted completely, down to the number of Facebook
posts a company will share about a recall. As she is quoted saying in
article: ``I could just go count that. How could that be protected?''
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\1\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis
Question 40. What Internet platforms does CPSC have established
relationships with?
CPSC has relationships with a number of platforms, some of them for
well over a decade including:
eBay
Overstock.com
Alibaba
Craigslist
Facebook and Facebook Marketplace
Oodle
Shopgoodwill
Amazon
Letgo
Offer Up
Question 41. What special tools do CPSC staff have to review and
flag violative products sold on the Internet?
No special tools, however we have established CPSC relationships
and ongoing discussions.
Enforcement of the Child Nicotine Poisoning Prevention Act
I am very concerned about the CPSC's enforcement of the Child
Nicotine Poisoning Prevention Act, which became law three years ago and
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers.
The agency has moved slowly to enforce this law, and public action has
primarily consisted of sending notices to industry about the
requirements.
Question 51. Is the agency doing any market surveillance on this
issue to identify non-compliant products? Have you done any surveys of
industry?
Yes, CPSC regularly performs market surveillance including
collecting samples at retail and on-line to identify non-compliant
product.
Question 52. Have you taken any enforcement action or enforced
civil penalties for failure to comply with the law? If not, why not?
CPSC has notified firms and sought corrective action when non-
compliant products are identified.
Question 53. Are there authorities the agency is not using that it
should be to address products that pose a child health hazard like
liquid nicotine?
No.
CPSC FTE Vacancies
As so many of you have noted, the CPSC does a lot on a tiny budget.
However, I'm concerned by a growing number of vacancies at the CPSC and
how this might be affecting the agency's ability to fulfill its
important mission.
Question 57. How many FTEs are vacant?
The current (as of July 13, 2019) FTE level at CPSC is 544.3 (just
over our authorized level of 539 for FY19). We have supplemented our
permanent staff with temporary appointments while we are actively
recruiting for 40 positions.
Question 58. How do these vacancies affect the CPSC's ability to
carry out its critical safety mission?
Depending on the exact position and if we have back-up expertise
available to support the duties for a vacant position, it is sometimes
difficult to continue to perform certain functions when a position is
vacant. In the field and at the ports, we have staff available
throughout the country who can travel and provide support while a
position is vacant. On a case-by-case basis, we may also temporarily
detail an employee, reassign duties to another employee, contract for
services, or delay an activity until a position is filled.
Question 59. Why are these vacant? When do you anticipate they will
be filled? When do you anticipate they will be filled?
Many of our positions are in hard-to-recruit, highly technical
positions, such as Mathematical Statistician, Economist, and
Information Technology Specialists. We are actively recruiting using
all of our available recruiting methods and tools for all of our career
vacant positions. We anticipate filling positions as soon as highly
qualified selectees are identified. Our average time-to-recruit is just
under 83 days.
Question 60. Is there anything preventing these FTEs from being
filled?
There is nothing preventing the recruitment for our vacant
positions.
______
Responses to Written Questions Submitted by Hon. Tom Udall to
Commissioner Robert Adler
I appreciate that on March 8, CPSC clarified in a letter for
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'')
requires both child resistant packaging and flow restrictors for liquid
nicotine containers. Both of these product safety requirements are
important for preventing unintentional child ingestion of liquid
nicotine. CPSC had previously advised industry about the law's
requirements for child resistant packaging, but had not yet also
communicated the law's requirement for flow restrictors, despite the
reference to that requirement in the law's statutory language. However,
I am concerned that current ambiguity about the interaction of this
requirement with U.S. Food and Drug Administration (``FDA'') policy
could undermine the successful enforcement of the CNPPA.
As part of its process to assert its jurisdiction over electronic
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products
introduced after the August 8, 2016, effective date immediately subject
to the requirement for FDA authorization through the Premarket Tobacco
Product Application process. This includes both new products and
modified versions of previously marketed products. It is therefore
unclear whether changes to liquid nicotine containers to comply with
the flow restrictor requirements could potentially result in FDA
considering the product to be a new product, requiring Premarket
Tobacco Product Application authorization. While Congress clearly
provided this regulatory authority to CPSC before the FDA Deeming Rule,
I am concerned that ambiguity on the overlap of authority between the
agencies could lead to industry noncompliance with the CNPPA's flow
restrictor requirement, putting children at risk. In order to address
that possibility, I would appreciate your responses to the following
questions:
Question 1. Has the CPSC taken any enforcement action for liquid
nicotine containers for noncompliance with either the child resistant
packaging or flow restrictor requirements? If so, please provide
details on the extent of those enforcement actions.
CPSC has notified firms and sought corrective action when non-
compliant products are identified.
Question 2. Have the CPSC commissioners or staff communicated with
FDA about the potential interaction of the CNPPA flow restrictor
requirement and the FDA Deeming Rule?
Yes, CPSC has communicated with FDA to discuss each agency's
respective requirements.
Question 3. Do the CPSC and FDA have plans to take any action to
provide clarity that ensures manufacturers follow the flow restrictor
requirements in CNPPA?
CPSC has issued guidance on the restricted flow requirements.
https://www.cpsc.gov/s3fs-public/
NoticeofRestrictedFlowTP.March82019.pdf
Children's Cosmetics
A recent study by Nationwide Children's Hospital and Ohio State
University examined injuries from cosmetics and other personal care
product--including nail care, hair care, skin care, and fragrance
products--to children under the age of 5 years old.
The authors used the CPSC's National Electronic Injury Surveillance
System to estimate that, nationwide, about 64,000 children had visited
hospital emergency departments for these injuries between 2002 and
2016.
Each year, about 4300 children are treated in emergency departments
for these injuries.
From this analysis, we know that these injuries happen at home and
that ingestion is the main route of exposure. But chemical burns and
eye injuries from children spraying fragrance into their faces are also
notable types of injury.
In light of this study, I have a few questions:
Question 1. What can the CPSC do to protect young children from
harm caused by personal care products?
The definition of ``consumer product'' in the Consumer Product
Safety Act (CPSA) excludes ``cosmetics'' as that term is defined in the
Federal Food Drug and Cosmetic Act. In general, cosmetics are products
that are applied to the body to cleanse or beautify. The personal care
products specified in the question (nail care, hair care, skin care,
and fragrance products) are likely to be cosmetics and fall under FDA's
authority. An FAQ page on FDA's website provides some general
information: https://www.fda.gov/cosmetics/resources-consumers-
cosmetics/cosmetics-safety-qa-personal-care-products. The fact that a
product is intended for children does not keep it from being a
cosmetic. For example, FDA considers ``novelty makeup'' such as face
paints for children to be cosmetics: https://www.fda.gov/cosmetics/
cosmetic-products/novelty-makeup.
CPSC does have authority over one aspect of cosmetics. Under the
Poison Prevention Packaging Act (PPPA), CPSC can require special
packaging (sometimes called child resistant packaging) for household
substances, including cosmetics, if such packaging is necessary to
protect children from serious injury or illness resulting from
handling, using or ingesting the substance.
______
U.S. CONSUMER PRODUCT SAFETY COMMISSION
STATEMENT OF
ACTING CHAIRMAN ROBERT S. ADLER
ON THE NOTICE OF PROPOSED RULEMAKING REGARDING
AN AMENDMENT TO THE REGULATION ON INFORMATION DISCLOSURE
UNDER SECTION 6(b) OF THE CONSUMER PRODUCT SAFETY ACT
February 13, 2014
This week, the Commission voted to publish in the Federal Register
a Notice of Proposed Rulemaking (NPR) regarding an amendment to the
CPSC's regulation (16 C.F.R. part 1101) of information disclosure under
section 6(b) of the Consumer Product Safety Act (CPSA). I believe this
proposed rule will modernize and streamline our regulation--and, more
importantly, better align it to comply with our statutory obligations
to assure the accuracy and fairness of information the agency discloses
to the public.
I have never hidden my dislike for section 6(b) of the CPSA. I have
long believed it inappropriately puts the agency in the role of a
national data nanny of vital consumer product safety information. To
cite only a few problems with this section:
Section 6(b)'s cumbersome procedures and unnecessary delays
put consumers' lives and limbs at risk by requiring the CPSC to
restrict the flow of critical safety information to the public.
The Commission, unlike any of our sister agencies, must
spend hundreds of thousands of dollars a year following
wasteful 6(b) procedures--procedures that were visited
exclusively on the CPSC 40 years ago and have never been
imposed on any other agency since then.
Section 6(b) has been interpreted by the U.S. Supreme Court
to apply to FOIA requests for information in agency files. This
means that information that no one would ever think carried the
agency's blessing or imprimatur still must be run through
section 6(b) procedures--adding time and expense to the
process.
One particularly bad example: A document that simply lists
the names of the 50 firms in an industry must be processed
through section 6(b) by sending 50 different notices--each with
the other 49 names redacted (especially since the firms likely
already know all of the names on the list).
The Commission cannot post information on its website that
has been previously disclosed simply and solely because we have
given firms the right to be notified again before it's released
again--especially when most companies don't even bother to file
comments when they're re-notified.
The average time to process section 6(b) requests is roughly
four times as long as the time to process non-6(b) requests.
Read literally, section 6(b) prevents CPSC staff from saying
even favorable or nice things about manufacturers unless we
follow the cumbersome procedures of the Act.
To be clear, the NPR we passed today removes none of the agency's
responsibility to follow the law when it comes to information that it
has obtained under the Act or disclosed to the public in connection
with the Act. Yet, it also stays within the parameters of the statute
because there is simply no safety reason to expand its reach.
The changes the Commission has proposed to section 1101 of our
regulations are quite modest--and long overdue. In thirty years, the
Commission has revised this regulation only once--and that was to make
technical changes required by the Consumer Product Safety Improvement
Act of 2008. The changes proposed in this amendment will bring us into
the modern age and account for the reality that we live in an era where
most communication takes place electronically.
Our proposal will have one major effect--to remove the agency's
unnecessary and unjustifiable ``renotification'' provision. This
provision is not required by our statute and has provided no safety
benefit to the public. To the contrary, it has provided firms an
absolute right to demand that the agency follow the time consuming and
cumbersome procedures of 6(b) over and over again for information the
Commission has previously released to the public. Under current
Commission procedures, once information has been processed through
6(b), the information is then eligible for public release, including
being posted on our website. Under our current renotification rule,
however, if a firm demands notification each time the Commission
proposes to re-release information in which the manufacturer is
identified, the information is effectively embargoed. That is, it is
not made available to the public until someone requests it and the
agency goes through 6(b) procedures again. To say the least, this
completely undermines the concepts of transparency and openness so
carefully nurtured at the CPSC.\1\
---------------------------------------------------------------------------
\1\ Even here, the Commission's NPR retains protections for firms.
The staff draft still provides for renotification to manufacturers if
the Commission has reason to question the accuracy of the information
we are re-releasing.
---------------------------------------------------------------------------
Four Amendments to the Staff Draft NPR
While I believe the CPSC staff drafted a thoughtful package, my
colleague, Commissioner Robinson, and I proposed amendments to the
staff draft rule to address several valid concerns of our colleague
Commissioner Buerkle. I commend Commissioner Buerkle for raising
concerns that led to greater clarity in the proposal (keeping in mind
that she still disagreed with most of our amendments).
I will briefly explain our amendments. First, we clarified that
while section 1101.11(a)(2) will now track the statute by using only
the word ``obtained'' rather than adding the words ``generated'' and
``received'' when explaining the scope of the information that it will
process through section 6(b),\2\ amended Sec. 1101.2 has not been
narrowed, only streamlined.
---------------------------------------------------------------------------
\2\ This provision currently reads as follows:
The information must be obtained, generated or received by the
Commission as an entity or be individual members, employees, agents,
contractors or representatives of the Commission acting in their
official capacity. (Sec. 1101.11(a)(2)) (emphasis added). Staff
recommended deleting the words ``generated or received'' as they did
not track the words of the statute. We concurred.
---------------------------------------------------------------------------
Second, our amendment expanded on staff's clarification that
section 6(b) does not apply to information already publicly available
or disseminated in a manner intended to reach the public.\3\ We added
language to the preamble of the NPR to remove any doubt that,
notwithstanding the inapplicability of 6(b), existing agency policy and
Federal law require the CPSC to assure that information disclosed by
the agency to the public is presented in an accurate, clear, complete,
and unbiased manner. Moreover, we pointed out that other Federal health
and safety agencies that do not operate under 6(b)'s restrictions
generally coordinate the release of information identifying specific
manufacturers with those manufacturers in the interest of accuracy and
fairness. Needless to say, we wholly endorse such an approach whether
or not 6(b) applies to the agency.
---------------------------------------------------------------------------
\3\ See Sec. 1101.11(b)(7) of the staff draft.
---------------------------------------------------------------------------
Third, we added language to make clear that staff's proposed
deletion of a confusing and subjective standard for determining when
the Commission would follow 6(b) procedures made perfect sense.\4\ Our
amendment clarified that the Commission will continue to use the well-
established ``reasonable person standard'' when analyzing whether one
can readily ascertain from information proposed to be disclosed the
identity of the manufacturer or private labeler of a particular
product. In the interest of clarity, our amendment added a sentence to
the preamble to make clear that while this unnecessary language was
removed from the rule, in practice, the reasonable person standard as
described in section 1101.13 errs in favor of providing notice to
manufacturers and private labelers.
---------------------------------------------------------------------------
\4\ The deleted sentence reads as follows:
The Commission will provide the advance notice and opportunity to
comment if there is a question whether the public could readily
ascertain the identity of a manufacturer or private labeler.
(Sec. 1101.13).
Staff correctly pointed out that the words ``a question'' did not
necessarily comport with the ``reasonable person'' standard that our
regulation calls for in the requirement for deciding whether
information should be processed through 6(b).
---------------------------------------------------------------------------
Finally, our amendment clarified our understanding of staff's
recommendation to revise the Commission's current policy of
automatically withholding comments, upon request, from firms about
information the Commission proposes to release.\5\ In fact, this policy
goes well beyond the requirements of 6(b), which generally grants a
firm the right to have its comment included in a release. It does not,
however, grant a firm the absolute right to have its comment withheld
from release. Therefore, the staff's proposed revision requires a firm
to demonstrate why its comment should be withheld from the public when
the Commission releases information the firm has commented on.
Commissioner Robinson and I added our substitute amendment to clarify
that the change in the staff's draft seeks to find a balance between
the public interest in transparency and the rights of the identified
firm to be assured that disclosure is fair under the circumstances.
---------------------------------------------------------------------------
\5\ See Sec. 1101.31(b)(5).
---------------------------------------------------------------------------
Conclusion
In sum, the amendments offered by Commissioner Robinson and me and
the staff's draft NPR taken as a whole are intended to make CPSC's
enforcement of the statutory requirements under section 6(b) more
efficient and effective for all concerned.
Finally, I note the Commission has and will continue to enforce
section 6(b) of our statute and no one, least of all me, opposes taking
steps to check the accuracy and fairness of information about
manufacturers when we initiate the release of information and vouch for
it. Every agency that I know of--none of whom have 6(b) restrictions--
takes care to be certain that its press releases and other affirmative
disclosures of information have been run by the firms named in the
press releases. That is a far cry, however, from the broad restrictions
in our section 6(b) regulations.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Hon. Dana Baiocco
Question 1. The Commission's decision to launch a recall app has
been particularly well-received, both by consumer groups and industry
alike. I understand you were the driving force behind this concept and
appreciate your work in this area. What more can the Commission do to
modernize and connect with consumers?
Answer. Thank you for recognizing the CPSC Recall App.
Significantly, the CPSC Recall App required nominal expenditure because
it leveraged data the Agency already had on its website; we merely had
to ``scrape'' that data and repackage it in a new delivery system. This
concept was, to me, a ``no-brainer'' given that consumers receive more
information electronically today than ever before. Our smart phones and
tablets occupy a central place in our lives. Indeed, one source reports
that there are over 5 billion mobile users in the world, with a 57
percent global Internet penetration. Thus, when considering how to
reach consumers, particularly with something as important as a product
recall notice, it would be irresponsible to ignore these real-world
facts. Consumers are using the App and, in June alone, we recorded a 13
percent user increase.
In all instances, the Commission must know and understand how
consumers receive and process information before it may effectively
connect with them. The two most important steps the Commission can take
to modernize are to educate and to motivate. First, we must ensure that
the Agency leadership understands technology in more than just a
superficial way. We cannot capitalize on the benefits of ever-evolving
technology if we do not understand it and do not keep up with it.
Second, we must recruit and motivate qualified individuals, who can
assist leadership in its education efforts and implement programs that
facilitate the Agency's mission in practical ways. I am enthusiastic
about the introduction of S. 1858--CPSC CIO Parity Act, a bipartisan
bill, which endorses as essential a Chief Data Officer and Chief
Technologist for the Agency. The Agency needs those qualified
individuals to help the Agency navigate today's product safety
challenges.
The Agency should also work with Industry to bridge its
modernization gap. Simply stated, manufacturers, retailers and e-
platforms already have sophisticated hazard identification and consumer
outreach programs and the CPSC should not reject the opportunity to
harness such established and proven intelligence. I have met with a
number of representatives from trade organizations, consumer groups,
and e-commerce companies, all of whom have expressed a willingness to
share with the CPSC best practices so that we may pursue safety in a
coordinated way. We must not delay any longer in harnessing these
important opportunities.
The Agency should also implement, forthwith, an enterprise data
analytic strategy, which incorporates artificial intelligence. We need
to study how machine learning can inform predictive modelling that, for
example, can assist our Import Surveillance team in identifying suspect
shipments for inspection and, when appropriate, confiscation. The
Agency also needs to be prepared to address consumer product safety
issues that will inevitably surface via the Internet of Things (IoT).
These goals must be met. The Agency must modernize and connect with
consumers in real and measurable ways to fulfill its Mission. We must
be now and continue to be nimble.
Question 2. The Commission's voluntary Fast Track Recall Program
was intended to encourage businesses to efficiently remove potentially
hazardous products from the marketplace via a corrective action plan,
including a consumer-level recall, without preliminary determinations
of defects and lawsuits. Would you please describe the effectiveness of
this tool in protecting consumers from potential product defects?
Answer. The CPSC's Fast Track Recall Program (``Fast Track'') is an
award-winning program that works quite well, when implemented as
intended. The Fast Track was developed to streamline a recall process
and to promote a non-judgmental way for CPSC to complement a
responsible manufacturer's choice to remove a blemished product from
the market at the earliest possible stage. Using the Fast Track, a
recalling firm would simply notify the CPSC of its intent to
voluntarily recall its product and the proposed remedy. The CPSC will
work with the firm to announce this plan and serve as a partner in the
firm's safety efforts. The Fast Track eliminates the need for a lengthy
CPSC analysis or preliminary determination of whether the product at
issue actually presents a ``hazard,'' as that term is legally defined.
Indeed, the Fast Track is designed encourage a firm to respond to the
first sign of a potential product issue and initiate public notice
within 20 days. In so many cases, a recalling firm recognizes the need
to initiate a recall before the CPSC even becomes aware of a product
issue and the Fast Track program promotes what a responsible
manufacturer wants to do. The Fast Track, when executed as designed,
will minimize delays in public notification, will facilitate a quick
removal of a product from the market, will reduce the likelihood of
injuries, and will provide a swift and easy path to remedy consumers.
Unfortunately, several firms have expressed recent (and justified)
frustrations with certain internal CPSC processes that have resulted in
unnecessary delay and have diluted the intent of the Fast Track. To be
blunt, once CPSC staff attempts to opine or control, for example, which
photo to use in the recall announcement, or language that the firm
plans to use in its press release or on its website, the Fast Track
necessarily becomes an entirely different process and one which the
Program was designed to avoid. Such micromanagement will and has indeed
prompted a few firms to initiate recalls without the CPSC, which they
are legally permitted to do.
It is imperative that the Agency update its internal protocols to
reinvigorate the Fast Track Recall Program. It is a valuable program
that benefits the American public.
Question 3. I am also a member of the Senate Appropriations
Subcommittee on Financial Services and General Government, which
oversees funding matters related to the CPSC. I remain committed to
ensuring that the CPSC has the resources and tools that it needs to
effectively protect the public from unreasonable risks of injury or
death due to the use of consumer products. Is the Commission have
adequate resources to fulfill its mission?
a. If not, where should additional resources be targeted?
Answer. There are several areas where the Agency could use
additional resources to smartly invest. Fundamentally, we must
modernize our equipment, upgrade outdated software, and enhance our
data capabilities. Our current systems are just woefully inadequate. By
securing modern IT infrastructure, the Agency can better address
emerging trends and impending issues affirmatively rather than
constantly playing a game of ``catch up.'' Correspondingly, the Agency
needs to recruit qualified and creative personnel with the expertise to
capitalize on these new systems. We must also train our current staff
so they are fully equipped and energized with the knowledge to utilize
these tools.
Additional resources should be targeted generally on expanding the
workforce necessary to carry out the Agency's full mission. The
Agency's current size is significantly out of proportion with its
charge and its jurisdiction. The CPSC must be empowered to respond
quickly and thoroughly to safety issues generated by a global consumer
product market. In the same way, the Agency needs human resources who
can study, anticipate, and prepare for new dynamics that appear in the
marketplace.
We should also commit additional resources to improving programs
that demonstratively yield successful results. This is especially true
of our Import Surveillance Program, which has teams at our Nation's
ports, who work alongside our Customs and Border Protection colleagues.
Together, they are on the front lines trying to intercept dangerous
products before they reach consumers. Their efforts have proved to be a
smart investment. But, as the volume of imports increase, and more bad
actors attempt to flood our markets with dangerous products, we must
allocate more resources to the Import Surveillance Program as it has a
direct and demonstrable relationship to protecting consumers from
unreasonable risks of injury or death associated with the use of
consumer products.
I would also like to explore with you the possibility of
designating the CPSC as a testing ground, where appropriate, for the
study and evaluation of new technologies and/or programs that the
government is otherwise considering. This Agency, with its bipartisan
mission and its manageable environment, makes it a prime candidate on
which to pilot and measure the effectiveness of new tools that could be
applied in larger agencies and organizations. In this role, the CPSC
can contribute to and benefit from the robust study, evaluation, and
testing of emerging tools and systems that will be appraised in any
event. It's a rough concept, but one that is worth investigating.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Dana Baiocco
On April 8th of this year I sent Acting Chair Buerkle a letter
requesting documents and a further explanation of why the Commission
did not recall the BOB jogging stroller. In the information I received
back, it seems that the Commission knew of almost 200 incidents related
to the stroller, including some very serious injuries, because of the
front-wheel detachments problem.
We also learned that in late September 2017 the CPSC's Office of
Compliance did a presentation listing a litany of injuries that could
occur as a result of defects in the stroller, and stated that the
Commission should push for a recall. Acting on this information, the
Commission voted 3-1 in February 2018 to file an administrative lawsuit
against the stroller's manufacturer, Britax, asking for a finding that
the strollers presented a substantial product safety hazard and
demanding a recall. In October 2018, the composition of the Commission
changed and you voted with two other Members of the Commission to
terminate the administrative case and settle with Britax to avoid a
recall. This settlement only required the company to do an
``information campaign,'' and provide some replacement parts for
certain customers who recently bought a BOB stroller.
Furthermore, other customers with older strollers, were only
eligible for a 20 percent off coupon for a new BOB stroller.
Question 1. Do you think this settlement adequately protected
consumers?
Answer. The Commission voted to initiate a lawsuit against Britax
before I joined the Commission, and CPSC Litigation Counsel was already
proceeding against Britax in that lawsuit. I cannot comment on the
underlying facts that gave rise to the Commission's reasoning to
proceed against Britax in litigation. Britax and CPSC disagreed on the
issues and exercised their respective legal rights through litigation.
Because of the adjudicatory rules that govern ongoing proceedings, I
was not permitted to conduct my own analysis of the matter.
I was asked to vote to approve a settlement of that litigation as
required by law. CPSC Litigation Counsel and Britax negotiated and
jointly presented their proposed settlement to the Commission for
approval. I understand that CPSC Counsel negotiated the best possible
terms for consumers in settling the lawsuit. The proposed settlement
was consistent with the remedies sought by CPSC in the underlying
litigation Complaint. If CPSC Counsel believed that she could have
obtained additional, material, and legally sustainable remedies for
Britax consumers by not settling the lawsuit, she was certainly charged
with doing so. Based on the information provided to me at the time of
the settlement, the settlement was adequate particularly when compared
to the potential that: (1) CPSC may not have been ultimately successful
in proving its case against Britax in the lawsuit; or (2) it would have
taken a significant amount of time for consumers to receive the benefit
of remedies beyond those negotiated in settlement, if any at all, that
CPSC might have obtained if it was ultimately successful in litigation,
given the time necessary to complete litigation and any appeal process
that might have been invoked.
Question 2. Would you have structured the remedy in this case
differently? Do you believe a free repair for all impacted strollers or
a cash refund would have been more effective?
Answer. It would be inappropriate to comment on a matter that could
come back before the Commission, or to pre-judge such an issue.
Further, it is pure speculation to say whether the remedy--or the
case--would have been structured differently if I had personally
handled it. I have no basis to comment on what the Britax product
users, the ultimate beneficiaries of any remedy, would have considered
more effective.
Question 3. Is the Commission tracking corrective action completion
statistics for this recall? If so, please state whether these
statistics indicate, in your view, a successful corrective action.
Answer. The Britax settlement agreement requires Britax to provide
periodic updates regarding its compliance with the settlement terms. It
has been represented to me and, therefore, it is my understanding that,
Britax is providing those statistics, which have been and continue to
be reviewed. The settlement terms also give the Commission jurisdiction
to resolve any disputes that arise out of the agreement. Thus, until or
unless the parties raise for the Commission's determination a
legitimate dispute that requires the Commission to determine an issue
arising out of those statistics, our rules do not permit Commissioners
to pre-judge this (or any other) issue.
In May 2018, the Commission released a vague alert about deaths
involving inclined sleep products for infants. Then, nearly a year
later, Consumer reports published a story noting at least 32 deaths
associated with the Fisher-Price Rock `n Play infant sleeper. At the
time of the Consumer Reports disclosure, the Commission still had not
yet issued a recall regarding the Rock `n Play sleeper.
Question 4. Do you agree with the way Acting Chair Buerkle handled
the Rock 'n Play Recall?
Answer. No.
Question 5. If Section 6(b) of the Consumer Product Safety Act
restricts the agency's ability to disclose information, how can we
ensure that consumers get the information they need to better protect
themselves and their families?
Answer. Section 6(b) does not restrict, impede, or bar CPSC's
overall mission and it does not interfere with the Agency's ability to
carry out its mission in a legal and responsible way. Section 6(b)
enables the Commission to receive information freely and with the
understanding under the law that the information is presented
confidentially. Section 6(b) should not be read as, and it is not
intended to be, a bar to providing consumers with accurate information.
To illustrate, Section 6(b) requires the CPSC to ``take reasonable
steps'' to ensure that any information released is accurate. Thus, when
CPSC has made a determination, based on sustainable data, that there is
an unreasonable risk of injury from a potential product defect, CPSC
may act on that information and take all steps to get that information
to consumers.
Commissioner Kaye has testified that Section 6(b) of the Consumer
Product Safety Act, which prohibits the Commission from releasing data
about potentially unsafe products, is ``anti-consumer safety and anti-
transparency'' and that people die because of it.
Recent history shows that 6(b) ties the hands of the agency because
it prevents the agency from acting when it believes dangerous products
are in the marketplace but the company making the products won't agree
to voluntarily take it out of circulation.
Question 6. Do you agree with Commissioner Kaye that we should
eliminate 6(b)? If not, what other tools does the Commission have to
deal with bad actors? Will you commit to supporting the use of those
tools?
Answer. No, I do not. I do not see the provisions of Section 6(b)
as ``t[ying]'' the hands of the Agency'' or promoting ``anti-consumer
safety'' or being ``anti-transparen[t].'' The language of Section 6(b)
does not lend itself to that interpretation. Further, there is no
language in Section 6(b) that prevents the Agency from properly
addressing ``bad actors.'' Section 6(b) does not undermine, for
example, CPSC's authority under the CPSA to file an action against an
imminently hazardous consumer product for seizure of such product under
against any person who is a manufacturer, distributor, or retailer of
such product, or against both. 15 U.S.C. Sec. 2061. Rather, Section
6(b) ensures that the Agency addresses the bad actors (and/or their
products) and not actors unfairly or prematurely accused.
Section 6(b) protects the public from receiving incorrect
information and it protects against the dissemination of irresponsible
or unfounded conclusions that might, because of inaccuracies, cause
harm. There are Due Process protections built into the CPSA, such as
the related notice requirements, to provide check points to ensure that
the Agency is taking ``reasonable steps to assure'' that 1) the
information is accurate; 2) that disclosure of the information is fair
in the circumstances; and 3) that disclosure of the information is
reasonably related to effectuating the purposes of the CPSA and all
other laws administered by the Commission.
There are exceptions to Section 6(b)'s disclosure limitations that
provide the Agency means by which it can act more aggressively, if and
when legally warranted. For example, 6(b) allows the Commission to
shorten 6(b)'s notice period if the Commission finds that the public
health and safety requires a lesser period of notice. See, e.g., 15
U.S.C. Sec. 2055(b)(1), (2) and (5)(D) (providing the Agency with the
ability to shorten notice requirements if there are factual findings
that support it; the Commission also has the ability issue a unilateral
statement). Together, these provisions encourage candor between CPSC
and the regulated community while also providing means by which the
public can be confident that it is receiving accurate information.
Congress codified these procedures and restrictions, recognizing that
``the Commission has a responsibility to assure that the information
which it disseminates is truthful and accurate.'' (See H.R. Rep. No.
1192, 92 Cong., 2nd Sess. 31, 32 (1972)).
While suggesting a change in the existing law is certainly within a
sitting Commissioner's right, I disagree with the reasons stated by
Commissioner Kaye for doing so. Section 6(b) does not interfere with
the Agency's ability to carry out its mission and to effectively and
efficiently exercise all of its responsibilities under the CPSA.
Tip Overs:
Question 1. Please describe why the Commission has chosen not to
use Section 104 rulemaking to address--at least in part--the tip-over
issue.
Answer. I cannot speak for any other Commissioner. Section 104
applies directly and specifically to durable infant goods that is
intended for use, or that may be reasonably expected to be used by
children under the age of 5 years, and any attempt to classify only a
small subset of some dressers as durable infant goods requires a
subjective determination that will inevitably result in disagreement
that will preclude the very advancement that the idea of using Section
104 was intended to make. It is my understanding that no adequate
voluntary standard has been reached or expanded because, in part, of
disagreements among Standards Committee Members on how certain terms
will be defined. That past history suggests that any attempt to use
Section 104 to advance the matter likely will be ineffective.
CPSC should move forward to invoke a mandatory standard given that
there is no adequate voluntary standard. For these reasons,
Commissioner Feldman and I jointly proposed an amendment to the FY 2020
Performance Budget Request to Congress for a Notice of Proposed
Rulemaking be a deliverable for Children's Clothing Storage Units and
reflected in the FY 2020 Operating Plan. This amendment was unanimously
adopted by the Commission.
Question 2. Has the Commission reviewed safety issues associated
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any
such review.
Answer. Consistent with the terms of my ethics agreement and the
advice of the CPSC's Designated Agency Ethics Officer, I have recused
myself from Commission matters relating to IKEA dressers.
Question 3. What activities does the Commission take to ensure that
consumers who own recalled products are directly notified of a
potential safety issue (as opposed to general education campaigns)?
Please describe these activities in detail.
Answer. CPSC uses traditional media and social media to reach
consumers with recall information. CPSC often works directly with a
recalling firm using data collected through sales records, product
registrations, and data brokers to effectuate direct notice of a recall
to consumers. In addition to traditional direct notice practices, the
CPSC recently developed a recall app that is used for this purpose. I
also believe that the Agency should designate more personnel who are
dedicated to working with retailers, manufacturers, and e-platforms to
facilitate a more detailed and comprehensive approach.
Question 4. Has the Commission reviewed any voluntary standards
associated with dressers? Please share the details of any such review.
Does the Commission have any planned activities to improve the safety
of dressers? If so, please describe such activities in detail.
Answer. Consistent with the terms of my ethics agreement and the
advice of the CPSC's Designated Agency Ethics Officer, I have recused
myself from Commission matters relating to IKEA dressers and thus do
not comment here on any IKEA dresser specifically.
It is my understanding that, generally, CPSC Staff is reviewing and
interacting with ASTM 15.42 Subcommittee for Clothing Storage Units,
which is working to improve the ASTM standard F2057-17 by improving,
among other things, consumer interactions with product and use
scenarios, dynamic testing, multiple/loaded drawer testing, carpet
testing, testing repeatability and operational slide length. I
understand that CPSC Staff is also researching new test methodologies
based on available incident data and is currently testing nearly 200
product samples to assess the status of the market's compliance with
the current standard.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Hon. Dana Baiocco
Infant Inclined Sleepers
On April 6, Consumer Reports reported there have been at least 32
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby
product that belongs to a category of products known as ``infant
inclined sleepers.'' On April 11, Consumer Reports reported there have
been at least 4 infant deaths linked to a similar product manufactured
by Kids II. It was only after the publication of these two articles and
the ensuing public outrage that the manufacturers involved agreed to
work with CPSC to recall these deadly products.
Question 1. Was the CPSC aware of these infant fatalities before
Consumer Reports published these figures?
Answer. It is my understanding that infant fatalities had been
reported to the CPSC before Consumer Reports published its figures.
Question 2. Were you aware of these infant fatalities before
Consumer Reports published these figures?
Answer. I had been informed that infant fatalities had been
reported to the CPSC before Consumer Reports published its figures. I
had also been informed that the Agency contracted with an outside
biomechanical expert to study the matter and to obtain data and
information about infant inclined sleep products and any causal
relationship concerning the reported fatalities.
Question 3. If Consumer Reports had not published its findings
regarding infant fatalities caused by infant inclined sleepers, do you
think these products would have been recalled when they were?
Answer. For the reasons set forth in response to Question 2, I have
no basis to conclude one way or another.
Question 4. When do you think these products would have been
recalled had Consumer Reports not published its findings regarding
infant fatalities caused by infant inclined sleepers?
Answer. I have no basis on which to craft such a guess.
Question 5. After how many fatalities, do you think these products
should have been taken off the market?
Answer. Product hazards involving fatalities warrant the highest
level of attention. The Consumer Product Safety Act, however, does not
provide authority for removing products from the market based solely on
a specific number of fatalities. Rather, under Section 15 of the
Consumer Product Safety Act, if the Commission determines (after
appropriate hearing) that a product distributed in commerce presents a
substantial product hazard and that notification is required in order
to protect the public from such substantial product hazard, or if the
Commission determines a product to be an imminently hazardous consumer
product and has filed an action under Section 12, the Commission may
order the manufacturer or any distributor or retail of the product to,
among other things, cease distribution of the product.. See 15 U.S.C.
Sec. 2064, et seq.
Question 6. How many fatalities must happen before the CPSC
initiates a recall?
Answer. As noted above, CPSC's authority to initiate a recall is
set forth in 15 U.S.C. Sec. 2064, et seq., and is rooted in a
substantial product hazard determination.
The Safe Sleep Act of 2019
I have introduced the Safe Sleep Act of 2019. This legislation
would prohibit the sale, manufacture, and import of infant inclined
sleep products--a dangerous category of infant products, of which the
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My
legislation would also make sure that no new standard can be
established for a sleep product that is inconsistent with safe sleep
best practices.
The American Academy of Pediatrics and safety advocates have long
been clear that a safe sleep environment is a firm, flat, bare surface.
It is clear that infant inclined sleep products are incompatible with
the recommendations of the leading experts on safe sleep.
Question 7. When it comes to establishing standards for infant
sleep products, can you commit that you will only support standards
that are consistent with safe sleep best practices agreed upon by
pediatricians and safety advocates? If your answer is ``No,'' then why
not?
Answer. The medical community instructs that a flat and bare
surface is best for unattended infant sleep environments. The medical
community is critical to the development of standards for infant sleep
products. There are also many individual determinations made by
physicians who are treating infants and making recommendations for
those infants with specific needs that should not be ignored. With
regard to consumer product safety standards, I commit to following the
statutory requirements set forth in the Consumer Product Safety Act,
including the requirement that such standards be reasonably necessary
to prevent or reduce an unreasonable risk of injury associated with a
product. 15 U.S.C. Sec. 2056.
Question 8. Do you believe that infant inclined sleep products are
a category of products that can be considered safe for sleep?
Answer. The Commission is charged with protecting the public
against unreasonable risk of injury associated with consumer products,
including infant sleep products. There are differing opinions on
whether certain infant sleep products meet the definition of a
``durable infant or toddler product'' as defined under the Danny Keysar
Child Product Safety Notification Act, often referred to as ``section
104.'' [See Sec. 104 of the Consumer Product Safety Improvement Act of
2008, amended by H.R. 2715]. Even if inclined sleep products are
classified as infant sleep products under Section 104, the statute
requires the Commission to promulgate a mandatory standard that is
substantially the same as or more stringent than the voluntary
standard, but only if the Commission determines that more stringent
standards would further reduce the risk of injury associated with a
product. CPSC has been reviewing the information on potential hazards
posed by inclined sleep products. Because the Commission is currently
considering these and other issues relating to inclined sleep products,
it would be inappropriate to comment on or pre-judge this matter. The
Staff will continue to review and evaluate new data and research on
these products. Any action the Commission takes must be based on sound
science and data to adequately protect infants and children.
Section 6(b)
Question 9. What role do you believe Section 6(b) of the Consumer
Product Safety Act (CPSA) play in preventing the CPSC from acting
sooner to recall these deadly products? \1\
---------------------------------------------------------------------------
\1\ Note: Section 6(b) of the Consumer Product Safety Act prohibits
the Commission from disclosing information about a consumer product
that identifies a manufacturer without the permission of the
manufacturer.
---------------------------------------------------------------------------
Answer. Section 6(b) does not prevent CPSC from recalling any
product that presents a substantial product hazard. There is nothing in
the language of Section 6(b) that supports an interpretation that there
is any relationship between death and Section 6(b). Section 6(b) does
not undermine CPSC's authority under the CPSA to file an action against
an imminently hazardous consumer product for seizure of such product
under against any person who is a manufacturer, distributor, or
retailer of such product, or against both. 15 U.S.C. Sec. 2061. Rather,
Section 6(b) ensures that the Agency addresses substantial product
hazards after according to the statutory directive and not based on
inaccurate or premature conclusions.
Section 6(b) also provides the Agency means by which it can act
more aggressively, if and when legally warranted. For example, 6(b)
allows the Commission to shorten 6(b)'s notice period if the Commission
finds that the public health and safety requires a lesser period of
notice. See, e.g., 15 U.S.C. Sec. 2055(b)(1), (2) and (5)(D) (providing
the Agency with the ability to shorten notice requirements if there are
factual findings that support it; the Commission also has the ability
issue a unilateral statement). Together, these provisions encourage
candor between CPSC and the regulated community while also providing
means by which the public can be confident that it is receiving
accurate information. Section 6(b) does not and should not be used to
interfere with the Agency's ability to carry out its mission in a legal
and responsible way and to effectively and efficiently exercise all of
its responsibilities under the CPSA.
Question 10. Does that mean Section 6(b) is preventing the CPSC
from fulfilling its stated mission to protect the public from
unreasonable risks of serious injury or death?
Answer. No, for the same reasons set forth in response to Question
No. 10.
Question 11. Do you think Section 6(b) protects consumers?
Answer. Section 6(b) is just one provision of a larger statute that
is applicable to the Commission and, as such, it should not be
considered in isolation. I do believe that Section 6(b) encourages the
free flow of information and protects consumers from incorrect
information or the dissemination of irresponsible or unfounded
conclusions.
Window Covering Safety
In December 2018, a new window covering standard went into effect
that bans cords on stock products.
Question 12. Please provide detailed market data underlying the
claim that the new window covering standard, which applies to stock
products sold in stores and online, actually accounts for more than 80
percent of all window covering products sold in the United States.
Answer. Thank you for your questions on window covering safety. I
was not on the Commission at the time this claim was made, and was
provided the following information from our Staff. According to Staff,
this information was provided to CPSC by a trade association member and
was premised on a 2015 KeyStat study. I was not privy to the discussion
and have not seen this study.
Question 13. Do most daycares and preschools have stock or custom
window coverings? Please provide data for your answer.
Answer. I have been informed that the Agency does not have data
that establishes a stock versus custom statistic that addresses
daycares/preschools.
Question 14. Do most affordable housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. I have been informed that the Agency does not have data
that establishes a stock versus custom statistic that addresses
``affordable housing units.''
Question 15. Do most military housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. I have been informed that the Agency does not have data
that establishes a stock versus custom statistic for military housing
units.
Question 16. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing in stores.
Answer. I have been informed that if consumer intends to purchase a
window covering off-the-shelf in a store, those products are classified
as stock and are subject to the stock window covering requirements
(i.e., cordless, short cord, or inaccessible cord).
Question 17. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing online.
Answer. I understand that the window covering standard requires
that an on-line seller post a warning label on its website when the
sellers uses a website to promote, merchandise, and sell online.
Through this standard, the consumer should be informed about the
strangulation hazard while placing an order for a corded custom window
covering. I have also been informed that CPSC Staff has suggested to
the WCMA technical committee that a guidance document for online sales
of stock and custom products would be a useful, in addition to the
current standard.
Question 18. What is the CPSC doing to monitor compliance with the
new window covering standard? How can the CPSC enforce when it's
unclear whether a product is stock or custom?
Answer. According to Staff, CPSC is monitoring the sale of corded
window coverings on online platforms and developing plans to monitor at
ports and in retail stores. To comply with the ANSI/WCMA voluntary
standard, all products should be designated as ``Custom'' or ``Stock''
on the manufacturer label, using a ``C'' or the word ``Custom,'' or an
``S'' or the word ``Stock'', respectively. Stock products are
substantially fabricated in advance of distribution in commerce and in
advance of any specific consumer request for that product. A product is
likely a stock product if it appears online readily available to ship,
and has limited/specific pre-determined sizing, color, and material
options.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
Two years ago, a video went viral showing near-tragedy from a
furniture tipover: twin brothers climbing on the Ikea HEMNES 8-drawer
dresser leading it to tip over--one being nearly crushed by it and the
other miraculously saving him. The parents had posted the video to warn
others about the danger.\2\ Tragically, five months later, the same
kind of Ikea dresser fell on another 2-year old boy in his bedroom,
killing him. This dresser still has not been recalled.
---------------------------------------------------------------------------
\2\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
While Ikea has recalled the HEMNES 2,3,5, and 6-drawer versions of
this dresser, it has steadfastly refused to recall the 8-drawer
dresser. IKEA refuses to recall it because it does not fail the
existing furniture stability test. They maintain that the product is
safe--even in the face of clear video evidence that it is not.
Kids In Danger, Consumer Federation of America, Parents Against
Tip-overs, and Consumer Reports have all called for the recall of this
product.
Question 19. Do you believe that the current standard governing
furniture stability is inadequate?
Answer. Consistent with the terms of my ethics agreement and the
advice of the CPSC's Designated Agency Ethics Officer, I have recused
myself from Commission matters relating to IKEA dressers. To the extent
this question is intended to apply generally to furniture stability,
regardless of manufacturer, my answer is Yes.
Question 20. Have you personally had any conversations with Ikea
urging them to agree to a voluntarily recall of this dangerous product?
Have you directed CPSC staff to have such conversations? Why or why
not?
Answer. No. Consistent with the terms of my ethics agreement and
the advice of the CPSC's Designated Agency Ethics Officer, I have
recused myself from Commission matters relating to IKEA dressers.
Illegal Sale of Recalled Products
As yard sales and garage sales move online, the CPSC must keep up
with the times and work with online platforms that facilitate the sale
of used products to make sure they have strong policies in place that
protect consumers from unwittingly purchasing hazardous recalled
products. It is important that the CPSC continue to vigorously enforce
the prohibition on the sale of recalled products, pursuant to the
Consumer Product Safety Improvement Act of 2008. In the wake of the
recall of Fisher Price Rock `n Play, we continue to [sic] many of these
products sold on secondary online marketplaces.
Question 21. Please provide a list of all Internet platforms (i.e.,
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established
relationships with. For each platform, please describe:
When and how that relationship was established.
Any special tools the platform has provided to the CPSC to
help monitor the illegal sale of recalled products on the
platform.
Any special tools the platform has provided to the CPSC to
report the illegal sale of recalled products on the platform.
Answer. CPSC works with a number of platforms, including: eBay,
Overstock.com, Alibaba, Craigslist, Facebook and Facebook Marketplace,
Oodle, Shopgoodwill, Amazon, Letgo, and OfferUp. Our Internet
surveillance team also scans the online marketplace to flag recalled
products and works directly with sellers to immediately stop sale of
recalled products and monitor the platform going forward. The Agency
does not have any special tools, per se, in place regarding recalls for
these platforms. This is just one example of the modernization that
must take place at the Agency. I also believe that the Agency should
implement a designed department charged solely with addressing and
maintaining best practices regarding these and other Internet platforms
and sellers.
Question 22. What more could Internet platforms do to eliminate the
illegal sale of recalled products on their platforms?
Answer. The types of e-platforms on the market are expansive and
varied. Several platforms have developed their own internal processes
for flagging recalled products that incorporate new technology to scan
for recalled products, as well as using blockchain technology for
inventory management. I would encourage all Internet platforms that
have even the potential to sell recalled products to use all available
resources to ensure that recalled products are not sold on their
platforms.
Question 23. Do you think platforms that facilitate the sale of new
and used products should have clear policies expressly prohibiting the
sale of recalled products in the United States?
Answer. Yes.
Question 24. Do you think users should be able to specifically flag
the sale of recalled products?
Answer. Yes.
Question 25. What kind of obligation do you think these companies
have or should have in making sure recalled products are not illegally
sold on their platforms?
Answer. There is a legal obligation to comply. The Consumer Product
Safety Improvement Act makes it unlawful for any person to sell, offer
for sale, manufacture for sale, distribute in commerce, or import into
the United States any consumer product or substance that is subject to
a voluntary corrective action taken by the manufacturer in consultation
with the Commission. 15 U.S.C. Sec. 2068. This law applies to both
voluntary recalls and recalls ordered by Commission, and requires the
firm to conduct monitoring of product recalls including the submission
of monthly progress reports to CPSC until it has been determined that
the corrective action has been implemented to the best of the firm's
ability and as many products as possible have been removed from their
marketplace. In addition to the statutory requirements, many firms have
implemented their own unique systems to flag recalled products in their
supply chain, or have developed ways to directly notify consumers. I
encourage firms to take these additional steps in ways that work best
for their business to comply with their obligations, and to improve
recall monitoring processes generally.
Information Campaigns vs. Recalls
The CPSC seems to increasingly likely to agree to settlements with
companies that exclude the word ``recall''--like its recent settlement
with Britax jogging strollers in which the company was ``pleased to
announce'' a resolution that didn't include a recall or formal
correction plan.
Consumers lose out on important legal protections when recalls
aren't called what they should be--``recalls.'' For example, they may
be more susceptible to purchasing second-hand products that haven't
been repaired.
Question 26. What evidence do you have that the Britax jogging
stroller information campaign has adequately addressed the hazard? What
percentage of the strollers have been removed from use or repaired with
a fix that actually works?
Answer. No ``evidence'' has been provided to the Commission. The
Britax settlement agreement requires Britax to provide periodic updates
regarding its compliance with the settlement terms. It has been
represented to me and, therefore, it is my understanding that, Britax
is providing those statistics, which have been and continue to be
reviewed. The settlement terms also give the Commission jurisdiction to
resolve any disputes that arise out of the agreement. Thus, until or
unless the parties raise for the Commission's determination a
legitimate dispute that requires the Commission to determine an issue
arising out of those statistics, our rules do not permit Commissioners
to pre-judge this (or any other) issue.
Question 27. How does the Consumer Product Safety Improvement Act
(``CPSIA'') protect consumers from the sale of products that are
subject to ``information campaigns''?
Answer. Under the CPSIA, CPSC and the recalling firm negotiate the
terms of a Correction Action Program (CAP), including the most
effective way to notify the public of the relevant recall. While direct
notice to customers contributes most to a recall's effectiveness rate,
this is often not a, or the only, viable option due to privacy laws. A
key function of any successful recall is to reach the consumer and
motivate them to participate in a recall. Information campaigns can
reach not only directly impacted consumers, but can also serve to
educate others on safety issues generally. In addition, a reporting
requirement incorporated into an ``information campaign'' provides an
express means by which CPSC can receive statistics relating to
information campaigns. CPSC also has the authority to amend or require
amendment of a CAP.
Question 28. So, without an official recall, consumers who buy
these strollers second-hand will have no legal remedy against the
seller for being sold the product without being advised of the
information campaign or for being sold the product without the ``free
modified thru-bolt or free modified quick release'' incentive for
consumers who participate in the information campaign. Is that correct?
Answer. The terms of the Britax settlement were agreed upon after
months of failed negotiations between CPSC and Britax on a voluntary
corrective action plan. During this time, consumers were left with no
warning or remedy for the jogging strollers at all. And, if CPSC would
have been unsuccessful in its litigation, that scenario would have
remained the same. As with any recall or information campaign, the
first step is to reach or inform consumers. Putting as much information
in the public domain is essential.
General Counsel Patricia Hanz (for Commissioner Baiocco)
At the most recent CPSC Commission Meeting on May 22, 2019, you
said to Acting Chairman Buerkle:
``I am aware that our General Counsel [Patricia Hanz] is not
independent, is controlling the information that we get, and
the last few pieces of legal advice that I have gotten from our
General Counsel have been flat wrong.''
Question 29. Can you explain in detail what you meant when you said
this? What legal advice were you seeking?
Answer. The context of this statement arose out of information and
analysis regarding the major data breach sustained by the Agency, which
was reported to the Commission in April 2019. Additionally, bare
conclusions or result oriented directives from OGC, without supporting
legal analysis, are woefully inadequate.
Recall Effectiveness of IKEA Dressers
The CPSC is in the midst of overseeing the IKEA dresser recall that
currently involves 17 million dressers. We now know of at least 9
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds
and removal of the dressers from use--has been hovering at about 1
percent and we know that at least one death occurred after the recall
was announced, with no reported knowledge by the parents of the recall.
Question 30. What steps should the CPSC take to make this recall
more effective to prevent other children from being injured or killed
from these unstable dressers?
Answer. Consistent with the terms of my ethics agreement and the
advice of the CPSC's Designated Agency Ethics Officer, I have recused
myself from Commission matters relating to IKEA dressers.
Question 31. The IKEA furniture recall involves at least 17 million
dressers. What percentage of those recalled dressers are out of
people's homes?
Answer. Consistent with the terms of my ethics agreement and the
advice of the CPSC's Designated Agency Ethics Officer, I have recused
myself from Commission matters relating to IKEA dressers.
Question 32. Have you met with IKEA? When you met with them, how
did you discuss holding IKEA accountable for this recall?
Answer. Shortly after joining the Commission, I informally met
representatives from IKEA during an ICPHSO Conference in Washington,
DC, which was attended by hundreds of stakeholders. I did not, during
this introduction or any other time, discuss with IKEA its dressers.
Consistent with the terms of my ethics agreement and the advice of the
CPSC's Designated Agency Ethics Officer, I have recused myself from
Commission matters relating to IKEA dressers.
Question 33. What have you done and what are you committed to doing
to decreasing the numerous amount of deadly dressers still in people's
homes?
Answer. The Commission has publicly expressed its concern that the
current standard does not adequately address or eliminate the risk of
tip-overs generally. For these reasons, Commissioner Feldman and I
jointly proposed an amendment to the FY 2020 Performance Budget Request
to Congress for a Notice of Proposed Rulemaking be a deliverable for
Children's Clothing Storage Units and reflected in the FY 2020
Operating Plan. This amendment was unanimously adopted by the
Commission. These products must be designed and tested so that the tip-
over hazard can be resolved in the best possible way.
Update on Crumb Rubber Study
It has now been more than three years since the CPSC, in
coordination with the EPA and CDC, first announced it would be studying
crumb rubber.
Question 34. When is this study going to be complete?
Answer. This project was designed to be completed in stages. The
EPA was responsible for the first part of the study, which it completed
and released to the public on July 25, 2019. The CDC will be releasing
its portion shortly. CPSC is responsible for final component of the
project, which is dependent on the results of the EPA and CDC portions.
It is my understanding that CPSC has completed a survey of playground
use and related behavior by children using playground, and the results
of that survey are currently being reviewed by Staff. It is likely that
the Staff's analysis will be released in the Fall. For reference, there
is a CPSC website,\3\ FAQ,\4\ and an EPA \5\ on-line site, all of which
provide updates on the status of the project, and links to the multiple
Federal Register notices and public webinars.
---------------------------------------------------------------------------
\3\ https://www.cpsc.gov/Safety-Education/Safety-Education-Centers/
Crumb-Rubber-Safety-Information-Center
\4\ https://www.cpsc.gov/Safety-Education/Safety-Education-Centers/
Crumb-Rubber-Safety-Information-Center/status-report-on-tire-crumb-
rubber-full-questions-and-answers
\5\ https://www.epa.gov/chemical-research/federal-research-
recycled-tire-crumb-used-playing-fields
Question 35. What is the delay?
Answer. I cannot comment on the timeliness. This is a multi-part
project initiated in 2016 that required extensive coordination between
three different government agencies. The project includes multiple
studies, surveys, and analytic reviews. Federal surveys of public
citizens require extensive planning and approval by many authorities
including, but not limited to, OMB. The first 10 months of the project
were dedicated to stakeholder input in the form of FR comments,
webinars, and direct meetings. Each part must to be completed in
succession according to a pre-determined schedule, as each agency's
research is built on the work done by the others.
The portions of the project delegated to the EPA and CDC were sent
out for external peer-review to ensure scientific integrity. There were
several Federal Register notices that required public input,
necessitating additional time built in stakeholder comments. The EPA
posted a voluminous status update \6\ in December 2016 that outlined
the continued progress of the project, including that of CPSC. Given
all of these circumstances, the project will inevitably require an
investment of time.
---------------------------------------------------------------------------
\6\ https://www.epa.gov/sites/production/files/2016-12/documents/
federal_research_action_
plan_on_recycled_tire_crumb_used_on_playing_fields_and_playgrounds_statu
s_report.pdf
Question 36. Do you believe the EPA and partner agencies are still
fully completed [sic] to this research? Have you talked to them about
it?
Answer. I have not discussed this project generally, or each
Agency's commitment to this project, directly with any of the
participating partner agencies. The EPA has already published a portion
of the study and the CDC is on track to complete its portion. I have no
indication that our partner agencies are not completing or committed to
the work. I am encouraged that three different health-and-safety
agencies are able to come together for a project impacting the well-
being of our Nation's citizens and are on track to completing it.
Section 6(b) of the Consumer Product Safety Act
The CPSC, alone among safety agencies, has a provision--Section
6(b) of the Consumer Product Safety Act--that typically prevents the
CPSC from sharing product specific safety information with consumers
without express permission from the company in question.
It is often felt that this delays consumers from getting vital
information they could use to keep their families safe. For example,
the Fisher-Price Rock `n Play recall was preceded by a vague warning
that did not identify the product a year before the recall.
However, the CPSC seems to be going out of its way to make it
difficult for consumer advocates and researchers to evaluate risk to
consumers and even whether companies are doing their job in executing
effective recalls.
For example, Nancy Cowles of Kids in Danger says she has submitted
Freedom of Information Act requests documents to shed light on the
recall effectiveness of Ikea's recall on unstable dressers.\7\ However,
those documents are redacted completely, down to the number of Facebook
posts a company will share about a recall. As she is quoted saying in
article: ``I could just go count that. How could that be protected?''
---------------------------------------------------------------------------
\7\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis
Question 37. Does it make sense that the CPSC is redacting
information about public Facebook posts about recalls? Do you think it
is appropriate that Section 6(b) really limits such information
disclosures?
Answer. I am not involved in redacting information about public
posts about recalls and, therefore, it would be inappropriate for me to
comment on it. Regarding the appropriateness of the law, we are duty-
bound to uphold it. To the extent that this question is directed to my
personal comments regarding Section 6(b), please see my previous
responses addressing Section 6(b).
Question 38. Will you commit to making sure the CPSC does not
restrict the disclosure of information more than is required by
statute?
Answer. I commit to following the directives set forth in the
statute.
Question 39. As long as Section 6(b) is on the books will you
commit to support the agency restricting disclosure of information
about a product or company to no greater an extent than required by
statute?
Answer. I commit to following the directives set forth in the
statute.
Internet of Things
Acting Chair Buerkle recently said in reply to a letter in reply to
consumer privacy organizations, ``CPSC's authority will not generally
extend to situations solely related to consumer privacy or data
security, that do not pose a risk of physical injury or illness, or
property damage.''
On the contrary, the CPSC should be doing more to recognize that
consumer privacy and data security pose real and urgent threats to the
well-being and safety of consumers. Insecure products can be hacked to
spy on children, trip up smoke detectors, and more.
Question 40. How can the CPSC leverage its expertise in keeping
dangerous products off of shelves, to also keep insecure products that
threaten people's safety out of people's homes?
Answer. IoT expands significantly the types of connectivity based
products on the market. IoT developments in this area are fast-paced
and evolving. CPSC must study the potential safety aspects that may
arise from this type of connectivity. However, because CPSC is not
charged with regulating privacy, it must coordinate with other
governmental agencies to limit duplication and to coordinate studies to
be most effective. CPSC must also invest its resources in this
important area. So much more needs done internally to close the
knowledge gap so that the Agency can carry out its mission as it
relates to IoT.
Question 41. What is the best way to protect vulnerable consumers
as new products enter the market without standards--such as connected
products? Is enough money allocated to compliance and enforcement
divisions?
Answer. The Agency must be prepared to address consumer product
safety issues that will inevitably surface via the Internet of Things
(IoT). The Agency must modernize and secure modern IT infrastructure
and equipment, to meet the issues related to IoT. The Agency needs to
recruit qualified and creative personnel with the expertise to
capitalize on emerging technologies and new products. We must also
train our current staff so they are fully equipped and energized with
the knowledge to utilize these tools.
Kids in Danger Report: Social Media Practices
Kids In Danger (``KID''), a non-profit organization dedicated to
protecting children by fighting for product safety, released its latest
report in March.\8\ It found that both the CPSC and manufacturers
posted recalls on Facebook at lower rates in 2018 compared to 2017.
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\8\ https://kidsindanger.org/2019/03/kid-releases-annual-report-on-
recalled-childrens-products/
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CPSC posted only 45 percent of 2018 children's product recalls on
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
In addition, of the 48 manufacturers that issued recalls in 2018,
only 31 percent were announced on the company's Facebook page--down
from 51 percent in 2017.
Question 42. Why isn't the CPSC using all tools at its disposal to
make recalls are made known?
Answer. With regard to the statistics, I am unable to comment as
posts to social media are outside the jurisdiction of the Commission.
The government, consumer advocates, and the private sector, have
competing philosophies about how to make the best use of rapidly
changing technology. Social Media is a prime example. The Agency
attempts to use all available outlets to reach consumers with recall
information. In addition to Facebook, vital recall information is
disseminated, when appropriate, via Twitter, television, traditional
print media, SaferProducts.gov, our new Recall App, and other
appropriate platforms. There has also been positive public attention on
the big things accomplished by our small Communications team. Testimony
received at the hearing on how to improve SaferProducts.gov that the
CPSC hosted in March, and the Agency's new Recall App demonstrate the
dedication CPSC has to improving how all safety information is
disseminated. The CPSC's use of social media to share important
information with stakeholders is an evolving process and we will
continue to examine and change our dissemination policies to better
meet the public's needs. The Agency should always be working to ensure
that recall information reaches as many impacted consumers as possible.
Question 43. Why isn't the CPSC requiring manufacturers to issue
notices on manufacturers' Facebook pages? Why isn't that a standard
part of the corrective action plan?
Answer. Corrective Action Plans, or CAPs, are generally negotiated
between CPSC and a firm as part of a voluntary recall process. If CPSC
determines a product presents a substantial product hazard and
notification is required to adequately protect the public from such
substantial product hazard, or if the Commission, after notifying the
manufacturer, determines a product to be an imminently hazardous
consumer product and has filed an action under section 12 of the CPSA,
the Commission may order the manufacturer, or any distributor or
retailer to give public notice on its website of the defect or failure
to comply, and provide to any third party Internet website on which
such manufacturer, retailer, distributor, or licensor has placed the
product for sale. Those announcements must be in languages other than
English and on radio and television where the Commission determines
that a substantial number of consumers to whom the recall is directed
may not be reached by other notice. See 15 U.S.C. Sec. 2064(c)(1)(D).
Inclusion of a recall notice on social media is part of a larger
negotiation process around distribution of recall notices in a CAP's
communications component. Therefore, while negotiating a Facebook
posting requirement in a CAP may very well be preferred by some, CPSC
cannot require a company to do so, nor is it always a feasible or
effective option.
Can a product that meets an existing standard be defective?
We are hearing increasingly often from companies that just because
their product is meeting a safety standard, their product can't be
defective and can't be subject to a recall. For example, Britax, the
maker of the B.O.B. jogging stroller argued that a product defect
required the violation of a safety standard. And the B.O.B. had passed
a test that required the removal front wheel to stay on after a strong
pull.
IKEA has also said the same thing about the HEMNES 8-drawer dresser
that killed a 2 year-old.
Question 44. If a product meets an existing standard but is killing
or seriously injuries children and babies, wouldn't you agree the
product should be recalled?
Answer. Meeting a product safety standard does not guarantee the
absence of a defect. The Agency is charged with determining whether a
substantial product hazard exists, and, if so, with taking appropriate
action. 15 U.S.C.Sec. 2064, et seq.
Question 45. Would you agree that the CPSC has the authority to
recall a product if it believes it poses an unreasonable risk of
serious injury or contains a defect that presents a substantial product
hazard--even if the product meets all existing standards?
Answer, Yes.
Question 46. Can a product be recalled if it meets an existing
standard?
Answer. Yes.
Question 47. Wouldn't you agree that if deaths and injuries are
occurring, the products may still be defective and a recall may be in
order?
Answer. Yes.
Question 48. What are some examples of companies that have
voluntarily recalled products that didn't necessarily violate a
specific product standard?
Answer. It would be inappropriate to provide or comment on active,
company specific enforcement actions or investigations. While firms
have a legal obligation under Section 15 of the CPSA to report products
that do not necessarily violate a specific product safety standard that
does not mean the Commission will automatically conclude the product
creates a substantial product hazard or that a corrective action is
necessary. However, firms may choose to voluntarily recall a product
without CPSC involvement.
Question 49. What role do you have in encouraging a manufacturer to
agree to a voluntary recall?
Answer. As a Commissioner, my fundamental role is to work together
with my fellow Commissioners, consistent with our governing statutory
authorities, to enforce the laws we have been charged with enforcing.
None of those charges is personal, including voluntary recalls. All
activities as a Commissioner are governed by law. By way of example,
Section 15 of the CPSC provides the Commission with the authority to
take action to protect the public from products which are found to
present substantial product hazards. 15 U.S.C. Sec. 2064. To that end,
16 C.F.R. Sec. 1115.20(a)(3) provides the Commission the power to
approve, reject, or take any other action necessary to ensure that a
proposed voluntary corrective action plan (CAP) is adequate. The
Commission delegated the authority to approve CAPs to the Executive
Director, with the exception in cases where CPSC staff's preliminary
determination of a product was a ``Class A'' as defined in the Hazard
Priority and Corrective Action Guidelines or if there is a death
involved with a product. (See U.S. Consumer Product Safety Commission,
Office of Compliance and Field Operations, Division of Defect
Investigations, Section 15 Defect Investigation, Procedures Manual, p.
52 (April 2014)). Requiring CAPs for products that fall under hazard
``Class A'' or where a death has occurred to be approved by Commission
vote is appropriate and necessary. The Commission also reserves the
authority to reclaim the delegation of authority of any other CAPs by
majority vote. Final Commission approval empowers the Agency to
negotiate the best possible CAP for high risk products, and for the
Commissioners to work together, consistent with our governing statutory
authorities, to enforce the laws. Satisfying these and related
directives in a legally appropriate manner is an immense
responsibility.
Enforcement of the Child Nicotine Poisoning Prevention Act
I am very concerned about the CPSC's enforcement of the Child
Nicotine Poisoning Prevention Act, which became law three years ago and
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers.
The agency has moved slowly to enforce this law, and public action has
primarily consisted of sending notices to industry about the
requirements.
Question 50. Is the agency doing any market surveillance on this
issue to identify non-compliant products? Have you done any surveys of
industry?
Answer. It would be inappropriate to provide information or comment
on active, company specific enforcement actions or investigations.
Question 51. Have you taken any enforcement action or enforced
civil penalties for failure to comply with the law? If not, why not?
Answer. It would be inappropriate to provide information or comment
on active company specific enforcement actions or investigations.
Question 52. Are there authorities the agency is not using that it
should be to address products that pose a child health hazard like
liquid nicotine?
Answer. It is my understanding that the Agency is using all
available authorities to address products and packaging under its
jurisdiction, including liquid nicotine, which pose hazards.
Keeping Fellow Commissioners in the Dark
I am troubled by reporting that Acting Chairman Buerkle withheld
information from fellow Commissioners about defect investigations and
incident data--even when briefings have been requested. All
commissioners must have fair access to the information they need in
order to make informed and educated decisions--especially when voting
on matters.
For example, The Washington Post has already publicly reported on
how Democratic Commissioners felt in the dark about the Britax jogging
stroller investigation and frustrated by Acting Chairman Buerkle's
control of the flow of information.
Question 53. Did you feel like you were adequately informed and
briefed prior to your vote agreeing on the Britax settlement, and in
retrospect?
Answer. I was not part of the Commission at the time referenced by
the Democratic Commissioners and as reported in the article you
mention. When I joined the Commission, the applicable adjudicatory
rules in place contributed, unintendedly but significantly, to the
limited information I possessed regarding the Britax matter. However, I
have experienced situations where I was not provided complete
information or, in some cases, specific information that I requested
regarding a matter on which I was asked to vote or oversee.
Question 54. What do you need to do your job better?
Answer. Keeping my response in context to this set of questions,
the full, complete, and accurate dissemination of information is
essential. I also think that Commission briefings, where appropriate,
would assist and benefit the entire Commission and our stakeholders so
that information and competing positions may be presented at one time
and all Commissioners can listen to everyone's input. I also believe
that all Commissioners should to be involved in the operation of the
Agency. Too often, critical Agency decisions are made without the input
of the full Commission which disrupts the Agency's ability to function
as effectively as possible.
Question 55. Do you feel like you have access to CPSC staff
expertise necessary to faithfully perform your job duties?
Answer. No.
Question 56. Are your requests for briefings from CPSC staff being
approved efficiently? Please list all briefing requests that have been
denied or postponed to a later date.
Answer. No. Despite repeated requests, the free and fully accurate
flow of information necessary to generate reasonable Commission input,
has been unnecessarily and unacceptably restricted.
CPSC FTE Vacancies
As so many of you have noted, the CPSC does a lot on a tiny budget.
However, I'm concerned by a growing number of vacancies at the CPSC and
how this might be affecting the agency's ability to fulfill its
important mission.
Question 57. How many FTEs are vacant?
Answer. The current FTE level has been in constant flux. We have
supplemented our permanent staff with temporary appointments while
actively recruiting for 40 vacant positions. Suffice it to say that
there are too many FTE vacancies in critical positions.
Question 58. How do these vacancies affect the CPSC's ability to
carry out its critical safety mission?
Answer. The Agency cannot efficiently, effectively or responsibly
carry out its mission without a full complement of qualified FTEs.
Question 59. Why are these vacant? When do you anticipate they will
be filled?
Answer. The Acting Chair's office solely oversees the personnel
issues and has not shared any specifics with my office on this point.
Based on my own perceptions, discussions with some colleagues who have
departed, and briefings from our executive offices, the circumstances
giving rise to these vacancies are, in many cases, individual, varied,
and related to ordinary attrition and a few well-deserved retirements.
In addition, a search for advancement and personal career growth has
caused some dissatisfied employees to pursue better opportunities. In
my estimation, it may take more time than is desirable to fill these
vacancies with individuals possessing qualifications that support the
Agency's mission. CPSC, like other Federal agencies and the private
sector, vies for highly in-demand candidates. A strong economy with a
significantly low unemployment rate makes the labor market highly
competitive. All of these factors, combined with the Agency's finite
resources, make CPSC's FTE needs and goals quite daunting.
Question 60. Is there anything preventing these FTEs from being
filled?
Answer. The Acting Chair's office solely oversees the personnel
issues and has not shared any specifics with my office on this point.
As mentioned in my response to the previous question, there are several
factors that impact the Agency's FTE vacancies. Also, and specific to
the Agency, the Commission is currently in a state of flux regarding
its leadership and the direction that the Agency will head in the short
term remains uncertain.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Dana Baiocco
I appreciate that on March 8, CPSC clarified in a letter for
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'')
requires both child resistant packaging and flow restrictors for liquid
nicotine containers. Both of these product safety requirements are
important for preventing unintentional child ingestion of liquid
nicotine. CPSC had previously advised industry about the law's
requirements for child resistant packaging, but had not yet also
communicated the law's requirement for flow restrictors, despite the
reference to that requirement in the law's statutory language. However,
I am concerned that current ambiguity about the interaction of this
requirement with U.S. Food and Drug Administration (``FDA'') policy
could undermine the successful enforcement of the CNPPA.
As part of its process to assert its jurisdiction over electronic
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products
introduced after the August 8, 2016, effective date immediately subject
to the requirement for FDA authorization through the Premarket Tobacco
Product Application process. This includes both new products and
modified versions of previously marketed products. It is therefore
unclear whether changes to liquid nicotine containers to comply with
the flow restrictor requirements could potentially result in FDA
considering the product to be a new product, requiring Premarket
Tobacco Product Application authorization. While Congress clearly
provided this regulatory authority to CPSC before the FDA Deeming Rule,
I am concerned that ambiguity on the overlap of authority between the
agencies could lead to industry noncompliance with the CNPPA's flow
restrictor requirement, putting children at risk. In order to address
that possibility, I would appreciate your responses to the following
questions:
Question 1. Has the CPSC taken any enforcement action for liquid
nicotine containers for noncompliance with either the child resistant
packaging or flow restrictor requirements? If so, please provide
details on the extent of those enforcement actions.
Answer. CPSC has notified firms and sought corrective action when
non-compliant products are identified.
Question 2. Have the CPSC commissioners or staff communicated with
FDA about the potential interaction of the CNPPA flow restrictor
requirement and the FDA Deeming Rule?
Answer. I am aware only that communications between CPSC and FDA
have occurred, but despite my repeated requests for more information, I
have not received any substantive information that would allow me to
adequately respond to your inquiry.
Question 3. Do the CPSC and FDA have plans to take any action to
provide clarity that ensures manufacturers follow the flow restrictor
requirements in CNPPA?
Answer. It is my understanding that communications between CPSC and
FDA have occurred, but as I stated in my response to Question 2, I do
not have sufficient details. The CPSC has issued guidance on the
restricted flow requirements (available at: https://www.cpsc.gov/s3fs-
public/NoticeofRestrictedFlowTP.March82019
.pdf?), which the industry has challenged.
Children's Cosmetics:
A recent study by Nationwide Children's Hospital and Ohio State
University examined injuries from cosmetics and other personal care
product--including nail care, hair care, skin care, and fragrance
products--to children under the age of 5 years old.
The authors used the CPSC's National Electronic Injury Surveillance
System to estimate that, nationwide, about 64,000 children had visited
hospital emergency departments for these injuries between 2002 and
2016.
Each year, about 4300 children are treated in emergency departments
for these injuries.
From this analysis, we know that these injuries happen at home and
that ingestion is the main route of exposure. But chemical burns and
eye injuries from children spraying fragrance into their faces are also
notable types of injury.
In light of this study, I have a few questions:
Question 1. What can the CPSC do to protect young children from
harm caused by personal care products?
Answer. Section 3(a)(5)(H) of the Consumer Product Safety Act, 15
U.S.C. Sec. 2052, excludes drugs, devices, or cosmetics (as such terms
are defined in section 201 (g), (h), and (i) of the Federal Food, Drug,
and Cosmetic Act
[21 U.S.C. Sec. 321 (g), (h), and (i)]) from CPSC's jurisdiction.
However, CPSC can, where appropriate, take action on these products
under the Poison Prevention Packaging Act (``PPPA''), 15 U.S.C.
Sec. 1471. Section 2 of the PPPA includes within its definition of
``household substance,'' any substance which is customarily produced or
distributed for sale for the consumption or use, or customarily stored,
by individuals in or about the household and which is--a food, drug, or
cosmetic as those terms are defined in section 201 of the Federal Food,
Drug, and Cosmetic Act, 21 U.S.C. Sec. 321. Thus, under the PPPA, the
Commission may, according to the provisions of the Act, establish
special packaging standards to protect children under five years of age
from opening or obtaining toxic or harmful amounts of a substance. The
Commission has issued rules under the PPPA that extend to household
substances that include cosmetics and personal care products.
Question 2. Could product safety standards be developed that would
reduce the risk of injury to children from personal care products?
Answer. Yes. Safety standards requiring child-resistant packaging
for personal care products can and have been issued under the Poison
Prevention Packaging Act.
Question 3. Do you believe the warning letters are effective at
reducing injury? Why or why not?
Answer. Warning letters are a viable tools, but I am unaware of any
study that has measured the efficacy of such measures. Warning labels
are another tool, which is expressly addressed in the PPPA. Section
4(a)(2) of the PPPA requires manufacturers to bear conspicuous labeling
stating ``this package for households without young children'' if
elderly or handicapped persons are unable to use a household substance
with special (child-resistant) packaging. We must balance the
regulation of a product, or in this case, the packaging of a product,
with the utility and make sure the regulation is appropriate and
effectively protects the consumer. The labeling requirement is a
limited exemption under the PPPA that warns parents and caregivers to
consider a different product or properly store the product away from
young children.
______
Response to Written Question Submitted by Hon. Tammy Duckworth to
Hon. Dana Baiocco
While much progress was made on sudden unexplained infant death
(``SUID'') in the 1990s, little progress has been made in reducing SUID
over the past decade. In some high-risk groups, rates are going in the
wrong direction. The U.S. Centers for Disease Control and Prevention
(``CDC'') estimate that in 2017 there were about 3,600 SUID cases in
the U.S. Many products--everything from crib bumpers, nests or pillow--
like products and sleep positioners--are made and sold to help infants
sleep. The FDA has warned against sleep positioners and safe sleep
advocates warn against the use of crib bumper pads. Many of these
products meet no standard--mandatory or voluntary. The CPSC is in a
unique position to help address the public health problem of SUID
through its jurisdiction over infant products and opportunities to
communicate with families, caregivers and health care providers.
Question. What will you do, beyond education and awareness, to push
CPSC to use its authority to increase safe sleep among high-risk
families and to reduce the hazard posed by certain infant sleep
products such as crib bumpers and other untested products?
Answer. CPSC has been reviewing the information on potential
hazards posed by certain infant sleep products such as crib bumpers for
a number of years. While numerous studies on these products have been
completed and shared with our technical staff, the studies convey
conflicting conclusions that yield a range of recommendations. Because
the Commission is currently considering issues relating to inclined
sleep products, it would be inappropriate to comment on or pre-judge
this matter. The Staff will continue to review and evaluate new data
and research on these products. Any action the Commission takes must be
based on sound science and data to adequately protect infants and
children.
Meanwhile, our State and Local program has been successful in
targeting areas to augment our safety message, including safe sleep. By
working with state and local leaders and health care providers, we can
make significant strides in reaching high risk families to address safe
sleep.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Hon. Peter A. Feldman
Question 1. You have been a strong advocate on efforts to modernize
the agency, including reexamining how the Commission processes data and
new challenges associated with emerging technologies. The CPSC Chief
Information Officer Parity Act, which I introduced with the Ranking
Member last week, would enhance the role of the agency's CIO in agency
planning and management decisions. Have you had an opportunity to
review this bill?
a. What more can the CPSC do to improve its data processing
capabilities and keep consumers safe?
Answer. Yes. I have reviewed this bill and recognize your
leadership in introducing similar legislation that has been successful
at other independent agencies. I am grateful for your efforts,
alongside Ranking Member Blumenthal, to modernize CPSC. The CPSC CIO
Parity Act is a strong bipartisan bill and I believe it will bring
needed enhancements to CPSC's data processing capabilities, among other
things.
As the CPSC CIO Parity Act addresses, we must ensure that CPSC has
the resources to function appropriately in the 21st Century. That
includes the agency's IT resources and data processing capabilities. It
is important that the agency CIO be empowered to play an active role in
the agency's mission. I am also pleased to see that this legislation
includes provisions with respect to a chief data officer and a chief
technologist. These are roles that many of our sister agencies have
implemented effectively and would expand CPSC's expertise in a way that
would be helpful.
Question 2. On March 25, 2019, you sent letters to California's
Attorney General and state legislators regarding the California
Consumer Privacy Act and its ``Right to Delete'' provision. Your
letters expressed concern with this provision impact on the ability of
retailers, manufacturers, and others to conduct efficient recalls of
hazardous consumer products. Would you please describe those concerns
to this Subcommittee?
Answer. We know that direct-notice recalls are more effective. CPSC
will often work with a recalling firm to leverage the data it collects,
through sales records, product registrations, and data brokers, to
effect direct notice. In March, I sent letters to California officials
to draw attention to a provision in the state's new data privacy law
and the impact I believe it may have on recall effectiveness. The
California law contains a ``right to delete'' provision under which
consumers can wipe this data from a firm's systems. I'm concerned that
this deletion may limit the effectiveness of future recalls. I am
including copies of these letters for the record, along with my
responses. See ADDENDUM 1.
Question 3. I am also a member of the Senate Appropriations
Subcommittee on Financial Services and General Government, which
oversees funding matters related to the CPSC. I remain committed to
ensuring that the CPSC has the resources and tools that it needs to
effectively protect the public from unreasonable risks of injury or
death due to the use of consumer products. Is the Commission have
adequate resources to fulfill its mission?
a. If not, where should additional resources be targeted?
Answer. CPSC is a small agency with a broad mission and limited
resources. There are specific areas where additional funding would be
helpful and the agency's most recent budget request to Congress
reflects that. See ADDENDUM 2. Simply throwing more money at an agency
isn't always the right answer. I welcome the opportunity to collaborate
with you on exploring how the agency can operate more efficiently to
better utilize the resources we have. Currently, the agency does not
keep sufficient internal metrics on which to gauge efficiencies.
Similar to your CIO Parity Act, I proposed investments to strengthen
the agency's data science expertise in our FY 2020 Budget Request to
Congress. I believe such investment is useful not only to gauge
efficiencies, but also to support the agency's critical safety mission
in general.
Question 4. Input with industry and advocacy groups is an essential
component to fulfilling the Commission's purpose. One area of
collaboration has been on the issue of preventing consumer injuries
from portable fuel containers. While workplace safety regulations
mandate the use of flame arrestors for containers in industrial use,
there is no similar requirement for consumer containers. For this
reason, I sponsored the Portable Fuel Container Safety Act that would
direct the Commission to finalize standards for installing flame
arrestors in portable fuel containers. Would you please describe the
importance of collecting stakeholder input in finalizing standards for
this and other consumer product related issues?
Answer. Consumer injuries associated with fuel containers are
serious and number in the thousands. We know that flame arrestors
significantly mitigate this risk. I believe the additional authorities
provided in the Portable Fuel Container Safety Act are helpful and I
thank you for your leadership on this important issue.
With respect to stakeholder input to further the goal of agency
transparency, I maintain an open door and encourage all stakeholders to
share their concerns with me. This invitation applies to consumer
groups, trade groups, legislators, companies, individual consumers, and
others.
______
Response to Written Questions Submitted by Hon. Marsha Blackburn to
Hon. Peter A. Feldman
Question 1. The structure of the CPSC's authorizing statue is
critical--it recognizes having open lines of communication with the
industry that CPSC regulates. I know that some are attempting to
discredit these open lines of communication between the agency and
regulated industries.
a. Can you speak to how you work with industry to develop voluntary
standards?
b. Can you speak to the work CPSC does in partnership with Customs
and Border Protection in intercepting illegal products coming in
through our Nation's ports?
Answer. A core purpose of CPSC is to develop uniform standards for
consumer products and to minimize conflicting regulations. Through the
course of this work CPSC must assess whether voluntary standards
address or eliminate a particular risk and whether the agency can
expect substantial compliance from industry. The purpose of stakeholder
engagement, including with advocacy groups, affected families and
regulated industry, is to increase safety and better identify priority
risk areas. CPSC should endeavor to communicate more plainly with all
these groups. Better engagement beings with clarity about agency
expectations. To further the goal of agency transparency, I maintain an
open door and encourage all stakeholders to share their concerns with
me. This invitation applies to consumer groups, trade groups,
legislators, companies, individual consumers, and others.
CPSC's Office of Import Surveillance works closely with U.S.
Customs and Border Protection (CBP) to identify and examine imported
shipments of consumer products. As part of this effort, CPSC has co-
located investigators at ports of entry who work side-by-side with CBP
staff.
While this remains a close and important interagency partnership, I
continue to be concerned about our surveillance and interception
capabilities with respect to e-commerce. The trend line of e-commerce
sales suggest they will continue to grow as a percentage of overall
retail sales, and an increasing number of these sales enter the United
States under de minimus exemptions or otherwise avoiding traditional
ports of entry. I welcome the opportunity to collaborate with you on
how CPSC might modernize its import surveillance and monitoring efforts
to include direct-to-consumer shipments.
Question 2. Mr. Feldman, you mentioned in your testimony your work
to modernize the Commission's data collection capabilities,
specifically with regards to new and emerging technologies in consumer
products.
a. What are the current gaps at the agency in this area, and how
can they be addressed?
b. Can you speak to how you coordinate with other Federal agencies
to tackle issues such as IoT, connected devices, and counterfeit
products in e-commerce?
Answer. IoT makes all sorts of connectivity possible and there have
been some exciting developments in this area. CPSC has a role to play
with respect to connected devices that present an unreasonable risk of
injury to consumers. However, CPSC is not a privacy or security
regulator. Therefore it is important that CPSC coordinate with other
relevant governmental agencies to ensure vigilance, preserve
innovation, and avoid duplication. That is why I worked to create a
first-of-its-kind IoT interagency working group earlier this year. The
purpose of this working group is interagency coordination, not
regulation. It is important that agencies be aware of their respective
efforts on connected devices across the Federal government. It is also
important that agencies be mindful of the jurisdictional limitations
that exist. To minimize burdens and maximize innovation, a series of
MOUs may be appropriate to clarify overlapping jurisdictions. This
working group is an important first step to that end.
______
Response to Written Question Submitted by Hon. Ron Johnson to
Hon. Peter A. Feldman
Question. On February 20, 2019, you tweeted, ``I'm told that as
much as 100 percent of liquid nicotine containers do not comply fully
with the requirements of the Child Nicotine Poisoning Prevention Act,
including the use of flow restrictors.'' What data supports this
assertion? Please provide the data.
Answer. This figure referenced in the tweet is a compliance
estimate from career agency enforcement staff based on their market
surveillance activities at the time. The Child Nicotine Poisoning
Prevention Act of 2015 (CNPPA) generally requires, among other things,
that liquid nicotine be packaged in accordance with the standards
provided in 16 C.F.R. 1700.15. This regulation includes various special
packaging requirements, including with respect to child resistance and
flow restriction. Because the CNPPA explicitly treats these
requirements as a standard under the Poison Prevention Packaging Act of
1970, 15 U.S.C. 1472(a), the statute makes applicable additional
requirements, including that manufacturers, importers, and others
certify compliance to these special packaging requirements in a General
Certificate of Conformity (GCC). In February 2019, while the Commission
was aware of varying degrees of compliance with the regulation's
restricted flow requirement, staff was unware of any GCC that fully
certified to the special packaging requirements, including those
pertaining to restricted flow.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Peter A. Feldman
On April 8th of this year I sent Acting Chair Buerkle a letter
requesting documents and a further explanation of why the Commission
did not recall the BOB jogging stroller. In the information I received
back, it seems that the Commission knew of almost 200 incidents related
to the stroller, including some very serious injuries, because of the
front-wheel detachments problem.
We also learned that in late September 2017 the CPSC's Office of
Compliance did a presentation listing a litany of injuries that could
occur as a result of defects in the stroller, and stated that the
Commission should push for a recall. Acting on this information, the
Commission voted 3-1 in February 2018 to file an administrative lawsuit
against the stroller's manufacturer, Britax, asking for a finding that
the strollers presented a substantial product safety hazard and
demanding a recall. In October 2018, the composition of the Commission
changed and you voted with two other Members of the Commission to
terminate the administrative case and settle with Britax to avoid a
recall. This settlement only required the company to do an
``information campaign,'' and provide some replacement parts for
certain customers who recently bought a BOB stroller.
Furthermore, customers with older strollers, were only eligible for
a 20 percent off coupon for a new BOB stroller.
Question 1. Do you think this settlement adequately protected
consumers?
Answer. I voted to approve the settlement in this matter based on
the recommendation of CPSC's career complaint counsel. Complaint
counsel, after having the benefit of the discovery process and a better
perspective on the merits of the case, made the determination that a
settlement was appropriate. As a result, I voted to accept the
settlement based on this staff recommendation.
Question 2. Would you have structured the remedy in this case
differently? Do you believe a free repair for all impacted strollers or
a cash refund would have been more effective?
Answer. Because the Commission ultimately sits as an administrative
appellate body in agency litigation, due process dictates that
Commissioners are prohibited from participating directly in settlement
negotiations. Accordingly, internal agency procedures require an
ethical wall between the Commissioners and the CPSC attorneys and
technical staff who investigate and prosecute proceedings. The purpose
of the ethical wall is to prevent bias or prejudgment by decision
makers regarding the merits of a pending adjudication, and ensuring
that prosecutorial and investigative staff do not advise the Commission
on a pending adjudication. Under the ethical wall restrictions,
together with the agency prohibitions on ex parte communications, the
Commission cannot directly influence settlement negotiations. This
consent agreement, consistent with the recommendation of complaint
counsel, represents the strongest possible position for the agency.
That is why I voted to accept it.
Question 3. Is the Commission tracking corrective action completion
statistics for this recall? If so, please state whether these
statistics indicate, in your view, a successful corrective action.
Answer. The settlement agreement requires the firm to provide
periodic updates regarding recall completion. The Commission's review
of these statistics remains ongoing.
In May 2018, the Commission released a vague alert about deaths
involving inclined sleep products for infants. Then, nearly a year
later, Consumer reports published a story noting at least 32 deaths
associated with the Fisher-Price Rock `n Play infant sleeper. At the
time of the Consumer Reports disclosure, the Commission still had not
yet issued a recall regarding the Rock `n Play sleeper.
Question 4. Do you agree with the way Acting Chair Buerkle handled
the Rock 'n Play Recall?
Answer. Where agency staff is able to make a preliminary
determination that a product contains a defect that presents a
substantial product hazard, the agency should move expeditiously to
enforcement. Product hazards involving fatalities warrant the highest
level of agency attention. That is why, at the time, I believed that
staff should proceed to immediate reconsideration of the data before it
to make a determination with respect to whether the Rock `n Play
presented a substantial product hazard. If so, the Commission should
have called on the firm to take immediate, comprehensive, and expansive
corrective action measures, including proceeding with a mandatory
recall if necessary. To date, staff has not determined whether a
substantial product hazard exists with respect to this product.
Question 5. If Section 6(b) of the Consumer Product Safety Act
restricts the agency's ability to disclose information, how can we
ensure that consumers get the information they need to better protect
themselves and their families?
Answer. CPSC's ability to execute on its safety mission depends on
our ability to be open, transparent, and accurate with consumers about
dangerous products. Section 6(b) requires that CPSC ``take reasonable
steps'' to ensure the information we release is accurate.
Commissioner Kaye has testified that Section 6(b) of the Consumer
Product Safety Act, which prohibits the Commission from releasing data
about potentially unsafe products, is ``anti-consumer safety and anti-
transparency'' and that people die because of it.
Recent history shows that 6(b) ties the hands of the agency because
it prevents the agency from acting when it believes dangerous products
are in the marketplace but the company making the products won't agree
to voluntarily take it out of circulation.
Question 6. Do you agree with Commissioner Kaye that we should
eliminate 6(b)? If not, what other tools does the Commission have to
deal with bad actors? Will you commit to supporting the use of those
tools as a CSPC Commissioner?
Answer. If a product represents a danger to the consumer, the
public has a right to be told about it and the Government should not be
permitted to conceal that information from the public. Accordingly,
while Section 6(b) generally requires 15-days prior notice before CPSC
can disseminate information about a manufacturer, it also provides
important exceptions. CPSC may expedite notification to consumers if
the Commission determines that public health and safety require a
lesser period of notice. The Commission is under no prior notice
requirement where a consumer product represents an imminent hazard or
where the Commission has reasonable cause to believe a product violates
the agency statutes. I take this issue seriously and believe the law
should be enforced as robustly as possible to protect consumers.
Tip Overs:
Question 1. Please describe why the Commission has chosen not to
use Section 104 rulemaking to address--at least in part--the tip-over
issue.
Answer. Furniture tip over incidents are a serious issue and I am
aware of fatalities. Product hazards involving fatalities warrant the
highest level of agency attention. That is why I support moving forward
with a mandatory standard that adequately reduces this risk. Although
there is a current voluntary standard, I am concerned that it does not
adequately address or eliminate the risk. Because of this, I introduced
language to accelerate a mandatory standard to protect children. This
language was adopted unanimously and on a bipartisan basis by the
Commission. A similar amendment, directing the Commission to proceed
via Section 104, failed because such a standard would apply only to a
small subsection of the product category and would have diverted
critical agency resources away from a stronger and more comprehensive
standard.
Question 2. Has the Commission reviewed safety issues associated
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any
such review.
Answer. Section 6(b) of the Consumer Product Safety Act (CPSA), 15
U.S.C. Sec. 2055(b), generally prohibits the public disclosure of
information that is provided to the CPSC in carrying out its
responsibilities under section 15 of the CPSA, 15 U.S.C. Sec. 2064
(relating to consumer product recalls). Section 6(b) also prohibits
public disclosure of any information that could identify a specific
product manufacturer unless the Commission has taken reasonable steps
to ensure that it is fair and accurate and has given the manufacturer
of the product(s) in question 15 days advance notice (of the
information to be disclosed) and an opportunity to comment. The
information called for in this question pertains to a specific
manufacturer and retailer. Accordingly, I cannot lawfully provide these
responses to the general public without going through the agency's 6(b)
notification process. Nevertheless, and consistent with our rules
implementing section 6(b), 16 C.F.R. Sec. 1101.12(g), and with the
expectation that these materials are kept confidential, we are
permitted by law to provide that information to the Chairman or Ranking
Member of the committee or subcommittee of jurisdiction acting pursuant
to committee business. Subject to these legal concerns, I would be
happy to work with the Committee to provide this information.
Question 3. What activities does the Commission take to ensure that
consumers who own recalled products are directly notified of a
potential safety issue (as opposed to general education campaigns)?
Please describe these activities in detail.
Answer. We know that direct-notice recalls are the most effective
recalls. CPSC will often work with a recalling firm to leverage the
data it collects through sales records, product registrations, and data
brokers to effect direct notice.
Question 4. Has the Commission reviewed any voluntary standards
associated with dressers? Please share the details of any such review.
Does the Commission have any planned activities to improve the safety
of dressers? If so, please describe such activities in detail.
Answer. Yes. Agency staff remains actively engaged with ASTM 15.42
Subcommittee for Clothing Storage Units to improve the ASTM standard
F2057-17. Improvement efforts are centered on consumer interactions
with product and consumer use scenarios identified in the ANPR. Staff
are active members of task groups supporting the subcommittee working
on issues such as: dynamic testing, multiple/loaded drawer testing,
carpet testing, testing repeatability and operational slide length.
Staff is researching new test methodologies based on available incident
data and testing over 185 samples which represent a variety of CSUs
designs on the market today.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Hon. Peter A. Feldman
Infant Inclined Sleepers
On April 6, Consumer Reports reported there have been at least 32
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby
product that belongs to a category of products known as ``infant
inclined sleepers.'' On April 11, Consumer Reports reported there have
been at least 4 infant deaths linked to a similar product manufactured
by Kids II. It was only after the publication of these two articles and
the ensuing public outrage that the manufacturers involved agreed to
work with CPSC to recall these deadly products.
Question 1. Was the CPSC aware of these infant fatalities before
Consumer Reports published these figures?
Answer. Yes.
Question 2. Were you aware of these infant fatalities before
Consumer Reports published these figures?
Answer. I was unaware of the full extent of fatalities associated
with and linked to this product. On multiple occasions I requested, and
was denied, closed compliance briefings with agency staff to discuss
what the agency knew, including staff's progress in identifying a
defect and determining whether a substantial product hazard exists.
Question 3. If Consumer Reports had not published its findings
regarding infant fatalities caused by infant inclined sleepers, do you
think these products would have been recalled when they were?
Answer. It is possible these products would have been recalled
absent the publication by Consumer Reports of its findings. Under
Section 15 of the Consumer Product Safety Act and pursuant to agency
procedures, the Commission may order manufacturers, distributors, and
retailers to cease distribution of a product and to take other
appropriate corrective actions, if it determines that a product
presents a substantial product hazard. Among other things, a
``substantial product hazard'' exists where there is a product defect
which, because of the pattern of defect, the number of defective
products distributed in commerce, the severity of the risk, or
otherwise, creates a substantial risk of injury to the public.
Question 4. When do you think these products would have been
recalled had Consumer Reports not published its findings regarding
infant fatalities caused by infant inclined sleepers?
Answer. See response to Question 3, supra.
Question 5. After how many fatalities, do you think these products
should have been taken off the market?
Answer. Product hazards involving fatalities warrant the highest
level of agency attention. In order to recall a product, the
Commission's analysis under its statute does not precondition such
action on a specific number of fatalities, but rather whether a product
presents a ``substantial product hazard.'' Specifically, Section 15 of
the Consumer Product Safety Act, 15 U.S.C. Sec. 2064, provides that the
Commission may order manufacturers, distributors, and retailers to
cease distribution of a product and to take other appropriate
corrective actions, if it determines that a product presents a
substantial product hazard. Among other things, a ``substantial product
hazard'' exists where there is a product defect which, because of the
pattern of defect, the number of defective products distributed in
commerce, the severity of the risk, or otherwise, creates a substantial
risk of injury to the public.
Question 6. How many fatalities must happen before the CPSC
initiates a recall?
Answer. See response to Question 5, supra.
The Safe Sleep Act of 2019
I have introduced the Safe Sleep Act of 2019. This legislation
would prohibit the sale, manufacture, and import of infant inclined
sleep products--a dangerous category of infant products, of which the
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My
legislation would also make sure that no new standard can be
established for a sleep product that is inconsistent with safe sleep
best practices.
The American Academy of Pediatrics and safety advocates have long
been clear that a safe sleep environment is a firm, flat, bare surface.
It is clear that infant inclined sleep products are incompatible with
the recommendations of the leading experts on safe sleep.
Question 7. When it comes to establishing standards for infant
sleep products, can you commit that you will only support standards
that are consistent with safe sleep best practices agreed upon by
pediatricians and safety advocates? If your answer is ``No,'' then why
not?
Answer. With respect to consumer product safety standards, I commit
to follow the statutory requirements set forth in the Consumer Product
Safety Act, including the requirement that such standards be reasonably
necessary to prevent or reduce an unreasonable risk of injury
associated with a product. See 15 U.S.C. Sec. 2056.
Question 8. Do you believe that infant inclined sleep products are
a category of products that can be considered safe for sleep?
Answer. The Commission's job is to protect the public against
unreasonable risk of injury associated with consumer products,
including infant sleep products. This includes deciding whether
mandatory standards are necessary. The Commission is currently aware of
fatalities associated with this product class. Product hazards
involving fatalities warrant the highest level of agency attention.
Because the Commission is currently examining the safety of infant
inclined sleep products as a product class, I don't want to prejudge
the matter. I also don't want to foreclose the possibility that a
mandatory standard may be necessary. The key question is whether the
current voluntary standard, which allows for infant inclined sleep
products, eliminates or adequately mitigates the risk and whether the
agency can expect substantial compliance from industry.
Section 6(b)
Question 9. What role do you believe Section 6(b) of the Consumer
Product Safety Act (CPSA) play in preventing the CPSC from acting
sooner to recall these deadly products? \1\
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\1\ Note: Section 6(b) of the Consumer Product Safety Act prohibits
the Commission from disclosing information about a consumer product
that identifies a manufacturer without the permission of the
manufacturer.
---------------------------------------------------------------------------
Answer. CPSC's ability to protect consumers and execute on its
safety mission depends on the agency's ability to be open, transparent,
and accurate with consumers about dangerous products. Section 6(b)
requires that CPSC ``take reasonable steps'' to ensure the information
we release is accurate. If a product represents a danger to the
consumer, the public has a right to be told about it and the Government
should not be permitted to conceal that information from the public.
Accordingly, while Section 6(b) generally requires 15-days prior notice
before CPSC can disseminate information about a manufacturer, it also
provides important exceptions. CPSC may expedite notification to
consumers if the Commission determines that public health and safety
requires a lesser period of notice. The Commission is under no prior
notice requirement where a consumer product represents an imminent
hazard or where the Commission has reasonable cause to believe a
product violates the agency statutes.
Question 10. Does that mean Section 6(b) is preventing the CPSC
from fulfilling its stated mission to protect the public from
unreasonable risks of serious injury or death?
Answer. No. See response to Question 9, supra.
Question 11. Do you think Section 6(b) protects consumers?
Answer. Yes. See response to Question 9, supra.
Window Covering Safety
In December 2018, a new window covering standard went into effect
that bans cords on stock products.
Question 12. Please provide detailed market data underlying the
claim that the new window covering standard, which applies to stock
products sold in stores and online, actually accounts for more than 80
percent of all window covering products sold in the United States.
Answer. This market segmentation data was provided to CPSC by the
Window Covering Manufacturers Association (WCMA) in 2015. This type of
information is generally treated as confidential commercial information
that is protected from disclosure by CPSC under Section 6 of our
statute. Nevertheless, and consistent with our rules concerning public
disclosure of information, the agency is permitted by law to provide
such information to the Chairman or Ranking Member of the committee or
subcommittee of jurisdiction acting pursuant to committee business.
Subject to these legal concerns, I would be happy to work with the
Committee to provide this information.
Question 13. Do most daycares and preschools have stock or custom
window coverings? Please provide data for your answer.
Answer. To my knowledge, CPSC does not collect data regarding
percentages of stock or custom window coverings in daycares and
preschools.
Question 14. Do most affordable housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. To my knowledge, CPSC does not collect data regarding
percentages of stock or custom window coverings in affordable housing
units.
Question 15. Do most military housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. To my knowledge, CPSC does not collect data regarding
percentages of stock or custom window coverings in military housing
units.
Question 16. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing in stores.
Answer. The current American National Standards Institute (ANSI)/
Window Covering Manufacturers Association, Inc. (WCMA) standard, ANSI
A100.1-2018, defines the term ``Stock Blinds, Shades, and Shadings'' as
follows:
A specific stock keeping unit or SKU, which is completely or
substantially fabricated (as defined below) in advance of being
distributed in commerce (as that term is defined in 15 U.S.C.
Sect. 2052(a)(7) and in advance of any specific consumer
request for that product. The SKU can either be sold ``as is''
or modified or adjusted by the seller, manufacturer, or
distributor before or after being distributed in commerce and
it would still be considered a Stock Blind, Shade and Shading.
``Substantially fabricated'' would include products pre-
assembled in advance of a consumer order or purchase. Pre-
assembled products that are modified or adjusted by the seller,
manufacturer or distributor before or after being distributed
in commerce will still be considered as ``substantially
fabricated'' if they require, but is not limited to, any of the
following: adjustments to size, attachment of the top rail and/
or bottom rail, and/or tying of Cords to secure the Bottom Rail
to finish the assembly of the product.
Stock Blinds, Shades and Shadings shall not be considered
Custom Blinds, Shades, and Shadings solely because of the
method of distribution (e.g., Internet sales) or the size of
the purchasing order (e.g., for multi-housing developments).
Conversely, the standard defines the term ``Custom Blinds, Shades,
and Shadings'' as ``any window covering that is not classified as a
stock window covering.''
Among other ways, in-store purchasers can differentiate between a
custom and stock window covering based on the manufacturer label.
Custom products require a permanent label or marking that includes
customer order information, such as customer name or customer order
number to match the product with a specific order. This label is to be
located within or on the headrail or on the roller tube so it can
easily be referenced by the user or inspecting agency.
Question 17. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing online.
Answer. The current ANSI A100.1-2018 Standard requires labels on
merchandizing for custom corded products. Specifically, a warning label
is to be placed on product merchandizing materials which includes, but
is not limited to, the sample book and the website (if the website is
relied upon for promoting, merchandizing, or selling on-line). The
required warning label must include pictograms that represent the
hazard of a cord wrapping around a young child's neck. The warning
label must be placed conspicuously, and in the United States, be both
in English and Spanish.
Question 18. What is the CPSC doing to monitor compliance with the
new window covering standard? How can the CPSC enforce when it's
unclear whether a product is stock or custom?
Answer. CPSC monitors online retail platforms for product that does
not comply with the current ANSI A1000.1-2018 standard. The agency is
currently developing monitoring plans for ports and in retail stores.
ANSI A1000.1-2018 requires all products to be designated as
``Custom'' or ``Stock'' on manufacturing labels. These designations are
coded in the following manner: ``C'' represents ``Custom'' products and
``S'' represents ``Stock'' products.
Furthermore, custom products require a permanent label or marking
that includes customer order information, such as customer name or
customer order number to match the product with a specific order. This
label is to be located within or on the headrail or on the roller tube
so it can easily be referenced by the user or inspecting agency.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
Two years ago, a video went viral showing near-tragedy from a
furniture tip-over: twin brothers climbing on the Ikea Hemnes 8-drawer
dresser leading it to tip over--one being nearly crushed by it and the
other miraculously saving him. The parents had posted the video to warn
others about the danger.\2\ Tragically, five months later, the same
kind of Ikea dresser fell on another 2-year old boy in his bedroom,
killing him. This dresser still has not been recalled.
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\2\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
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While Ikea has recalled the HEMNES 2, 3, 5, and 6-drawer versions
of this dresser, it has steadfastly refused to recall the 8-drawer
dresser. IKEA refuses to recall it because it does not fail the
existing furniture stability test. They maintain that the product is
safe--even in the face of clear video evidence that it is not.
Kids In Danger, Consumer Federation of America, Parents Against
Tip-overs, and Consumer Reports have all called for the recall of this
product.
Question 19. Do you believe that the current standard governing
furniture stability is inadequate?
Answer. Yes. Accordingly, I support the adoption of a mandatory
standard that adequately mitigates or eliminates this risk.
Question 20. Have you personally had any conversations with Ikea
urging them to agree to a voluntarily recall of this dangerous product?
Have you directed CPSC staff to have such conversations? Why or why
not?
Answer. Section 6(b) of the Consumer Product Safety Act (CPSA), 15
U.S.C. Sec. 2055(b), generally prohibits the public disclosure of
information that is provided to the CPSC in carrying out its
responsibilities under section 15 of the CPSA, 15 U.S.C. Sec. 2064
(relating to consumer product recalls). Section 6(b) also prohibits
public disclosure of any information that could identify a specific
product manufacturer unless the Commission has taken reasonable steps
to ensure that it is fair and accurate and has given the manufacturer
of the product(s) in question 15 days advance notice (of the
information to be disclosed) and an opportunity to comment. The
information called for in this question pertains to a specific
manufacturer and retailer. Accordingly, I cannot lawfully provide this
response to the general public without going through the agency's 6(b)
notification process. Nevertheless, and consistent with our rules
implementing section 6(b), 16 C.F.R. Sec. 1101.12(g), and with the
expectation that these materials are kept confidential, the agency is
permitted by law to provide that information to the Chairman or Ranking
Member of the committee or subcommittee of jurisdiction acting pursuant
to committee business. Subject to these legal concerns, I would be
happy to work with the Committee to provide this information.
Illegal Sale of Recalled Products
As yard sales and garage sales move online, the CPSC must keep up
with the times and work with online platforms that facilitate the sale
of used products to make sure they have strong policies in place that
protect consumers from unwittingly purchasing hazardous recalled
products. It is important that the CPSC continue to vigorously enforce
the prohibition on the sale of recalled products, pursuant to the
Consumer Product Safety Improvement Act of 2008. In the wake of the
recall of Fisher Price Rock `n Play, we continue to see too many of
these products sold on secondary online marketplaces.
Question 21. Please provide a list of all Internet platforms (i.e.,
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established
relationships with. For each platform, please describe:
When and how that relationship was established.
Any special tools the platform has provided to the CPSC to
help monitor the illegal sale of recalled products on the
platform.
Any special tools the platform has provided to the CPSC to
report the illegal sale of recalled products on the platform.
Answer. CPSC maintains relationships with many platforms, including
eBay, overstock.com, Alibaba, Craigslist, Facebook and Facebook
Marketplace, Oodle, Shopgoodwill, Amazon, Letgo, and Offer Up. To the
extent that any special tools employed by these platforms represent
confidential commercial information that is protected from disclosure
under Section 6 of our statute, I am unable lawfully to provide this
response to the general public without going through the agency's 6(b)
notification process. Nevertheless, and consistent with our rules
concerning public disclosure of information, the agency is permitted by
law to provide such information to the Chairman or Ranking Member of
the committee or subcommittee of jurisdiction acting pursuant to
committee business. Subject to these legal concerns, I would be happy
to work with the Committee to provide this information.
Question 22. What more could Internet platforms do to eliminate the
illegal sale of recalled products on their platforms?
Answer. I believe Internet platforms are an important stakeholder
in the fight to eliminate the illegal sale of recalled products. I
would like to learn more from the platforms about their current
practices and capabilities, before recommending additional actions. I
would also like to examine how Section 230 of the Communications
Decency Act, 47 U.S.C. Sec. 230, impacts the ability and willingness of
platforms to restrict third-party content relating to such sales.
Question 23. Do you think platforms that facilitate the sale of new
and used products should have clear policies expressly prohibiting the
sale of recalled products in the United States?
Answer. Yes.
Question 24. Do you think users should be able to specifically flag
the sale of recalled products?
Answer. Yes.
Question 25. What kind of obligation do you think these companies
have or should have in making sure recalled products are not illegally
sold on their platforms?
Answer. See Response to Question 22, supra.
Information Campaigns vs. Recalls
The CPSC seems to increasingly likely to agree to settlements with
companies that exclude the word ``recall''--like its recent settlement
with Britax jogging strollers in which the company was ``pleased to
announce'' a resolution that didn't include a recall or formal
correction plan.
Consumers lose out on important legal protections when recalls
aren't called what they should be--``recalls.'' For example, they may
be more susceptible to purchasing second-hand products that haven't
been repaired.
Question 26. What evidence do you have that the Britax jogging
stroller information campaign has adequately addressed the hazard? What
percentage of the strollers have been removed from use or repaired with
a fix that actually works?
Answer. The settlement agreement requires the firm provide periodic
updates regarding its compliance with the settlement terms. The
Commission's review of these statistics remain ongoing.
Question 27. How does the Consumer Product Safety Improvement Act
(``CPSIA'') protect consumers from the sale of products that are
subject to ``information campaigns''?
Answer. Corrective Action Plans are negotiated under CPSIA on a
case-by-case basis. With respect to this Information Campaign, among
other things, the terms of the settlement agreement require the firm to
undertake a robust, intensive campaign to instruct consumers how to
operate the Quick Release mechanism safely and correctly on the subject
products. To encourage consumer participation, the settlement agreement
further provides free parts, accessories, discounts and other
incentives to consumers.
Question 28. So, without an official recall, consumers who buy
these strollers second-hand will have no legal remedy against the
seller for being sold the product without being advised of the
information campaign or for being sold the product without the ``free
modified thru-bolt or free modified quick release'' incentive for
consumers who participate in the information campaign. Is that correct?
Answer. The incentives called for in the Corrective Action Plan are
available to each consumer who self-identifies as having concerns about
their ability to safely and correctly operate the Quick Release
mechanism, regardless of whether it was purchased in the secondary
market.
Recall Effectiveness of IKEA Dressers
The CPSC is in the midst of overseeing the IKEA dresser recall that
currently involves 17 million dressers. We now know of at least 9
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds
and removal of the dressers from use--has been hovering at about 1
percent and we know that at least one death occurred after the recall
was announced, with no reported knowledge by the parents of the recall.
Question 29. What steps should the CPSC take to make this recall
more effective to prevent other children from being injured or killed
from these unstable dressers?
Answer. Section 6(b) of the Consumer Product Safety Act (CPSA), 15
U.S.C. Sec. 2055(b), generally prohibits the public disclosure of
information that is provided to the CPSC in carrying out its
responsibilities under section 15 of the CPSA, 15 U.S.C. Sec. 2064
(relating to consumer product recalls). Section 6(b) also prohibits
public disclosure of any information that could identify a specific
product manufacturer unless the Commission has taken reasonable steps
to ensure that it is fair and accurate and has given the manufacturer
of the product(s) in question 15 days advance notice (of the
information to be disclosed) and an opportunity to comment. The
information called for in this question pertains to specific
manufacturers and retailers. Accordingly, I cannot lawfully provide
this response to the general public without going through the agency's
6(b) notification process. Nevertheless, and consistent with our rules
implementing section 6(b), 16 C.F.R. Sec. 1101.12(g), and with the
expectation that these materials are kept confidential, the agency is
permitted by law to provide that information to the Chairman or Ranking
Member of the committee or subcommittee of jurisdiction acting pursuant
to committee business. Subject to these legal concerns, I would be
happy to work with the Committee to provide this information.
Question 30. The IKEA furniture recall involves at least 17 million
dressers. What percentage of those recalled dressers are out of
people's homes?
Answer. See response to Question 29, supra.
Question 31. Have you met with IKEA? When you met with them, how
did you discuss holding IKEA accountable for this recall?
Answer. See response to Question 29, supra.
Question 32. What have you done and what are you committed to doing
to decreasing the numerous amount of deadly dressers still in people's
homes?
Answer. Furniture tip over incidents are a serious issue and I am
aware of fatalities. Product hazards involving fatalities warrant the
highest level of agency attention. That is why I support moving forward
with a mandatory standard that adequately reduces the risk of furniture
tip over. Although there is a current voluntary standard, I am
concerned that it does not adequately address or eliminate the risk.
Because of this, I introduced language to accelerate a mandatory
standard to protect children. This language was adopted unanimously and
on a bipartisan basis by the Commission.
I also voted to approve publication of a draft notice proposing a
survey to evaluate consumer awareness to evaluate CPSC's ``Anchor It!''
campaign. These metrics will gauge the effectiveness of our safety
messaging on this issue and inform our ongoing efforts.
Update on Crumb Rubber Study
It has now been more than three years since the CPSC, in
coordination with the EPA and CDC, first announced it would be studying
crumb rubber.
Question 33. When is this study going to be complete?
Answer. In February 2016, the CPSC, together with the United States
Environmental Protection Agency (EPA), and the Centers for Disease
Control and Prevention (CDC) announced a multi-agency research effort
to improve the understanding of potential health effects of
recreational exposures to crumb rubber. According to the Federal
Research Action Plan on Crumb Rubber, CPSC's portion of this research
was to study exposures of children to crumb rubber. This survey has
been completed and is currently being reviewed by CPSC staff, who
estimate the survey results could be released as early as fall 2019.
CPSC will continue its work by conducting a risk assessment of
children's exposure to playground surfaces and tire rubber. This work
will use the CPSC survey results as well as data from the EPA portion
of the Federal Research Action Plan regarding characterization of the
chemicals and materials in tire rubber crumb, which was released on
July 25, 2019, and CDC's portion regarding characterization of
potential exposures for those who use turf fields containing tire
crumb, after it is released. CDC's work is still ongoing. Any CPSC risk
analysis pertaining to recycled tire rubber used in playground surfaces
will consider the findings of the Tire Crumb Characterization and the
Synthetic Turf Exposure Characterization. CPSC staff projects a Risk
Assessment for playground surfacing could be available within 12 months
of completion of the Synthetic Turf Exposure Characterization.
Question 34. What is the delay?
Answer. CPSC has completed its survey of the Federal Research
Action Plan on Crumb Rubber and is continuing its work as described
above. I have stated previously that I believe this multi-agency
research effort is important and support the study's completion as soon
as possible.
Question 35. Do you believe the EPA and partner agencies are still
fully completed to this research? Have you talked to them about it?
Answer. Yes.
Section 6(b) of the Consumer Product Safety Act
The CPSC, alone among safety agencies, has a provision--Section
6(b) of the Consumer Product Safety Act--that typically prevents the
CPSC from sharing product specific safety information with consumers
without express permission from the company in question.
It is often felt that this delays consumers from getting vital
information they could use to keep their families safe. For example,
the Fisher-Price Rock `n Play recall was preceded by a vague warning
that did not identify the product a year before the recall.
However, the CPSC seems to be going out of its way to make it
difficult for consumer advocates and researchers to evaluate risk to
consumers and even whether companies are doing their job in executing
effective recalls.
For example, Nancy Cowles of Kids in Danger says she has submitted
Freedom of Information Act requests documents to shed light on the
recall effectiveness of Ikea's recall on unstable dressers.\3\ However,
those documents are redacted completely, down to the number of Facebook
posts a company will share about a recall. As she is quoted saying in
article: ``I could just go count that. How could that be protected?''
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\3\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis
Question 36. Does it make sense that the CPSC is redacting
information about public Facebook posts about recalls? Do you think it
is appropriate that Section 6(b) really limits such information
disclosures?
Answer. CPSC's ability to execute on its safety mission depends on
the agency's ability to be open, transparent, and accurate with
consumers about dangerous products. Section 6(b) requires that CPSC
``take reasonable steps'' to ensure the information we release is
accurate. If a product represents a danger to the consumer, the public
has a right to be told about it and the Government should not be
permitted to conceal that information from the public.
Question 37. Will you commit to making sure the CPSC does not
restrict the disclosure of information more than is required by
statute?
Answer. Yes.
Question 38. As long as Section 6(b) is on the books will you
commit to support the agency restricting disclosure of information
about a product or company to no greater an extent than required by
statute?
Answer. Yes.
Internet of Things
Acting Chair Buerkle recently said in reply to a letter in reply to
consumer privacy organizations, ``CPSC's authority will not generally
extend to situations solely related to consumer privacy or data
security, that do not pose a risk of physical injury or illness, or
property damage.''
On the contrary, the CPSC should be doing more to recognize that
consumer privacy and data security pose real and urgent threats to the
well-being and safety of consumers. Insecure products can be hacked to
spy on children, trip up smoke detectors, and more.
Question 39. How can the CPSC leverage its expertise in keeping
dangerous products off of shelves, to also keep insecure products that
threaten people's safety out of people's homes?
Answer. The Internet of Things (IoT) makes all sorts of
connectivity possible and there have been some exciting developments in
this area. CPSC has a role to play with respect to connected devices
that present an unreasonable risk of injury to consumers. However, CPSC
is not a privacy or security regulator. Therefore it is important that
CPSC coordinate with other relevant governmental agencies to ensure
vigilance, preserve innovation, and avoid duplication. That is why I
worked to create a first-of-its-kind IoT interagency working group
earlier this year. The purpose of this working group is interagency
coordination, not regulation. It is important that agencies be aware of
their respective efforts on connected devices across the Federal
government. It is also important that agencies be mindful of the
jurisdictional limitations that exist. To minimize burdens and maximize
innovation, a series of MOUs may be appropriate to clarify overlapping
jurisdictions. This working group is an important first step to that
end.
It is also important that CPSC have appropriate resources to
address hazards associated with emerging technology, including IoT
devices. More can be done to close the agency's skill gap in this
regard. I believe the Commission should explore the creation of a Chief
Technologist to expand staff expertise, as many of our sister agencies
have done. I am encouraged to see that your bill, the CPSC CIO Parity
Act, would do the same. I agree with this approach and thank you for
your leadership on this important legislation.
Question 40. What is the best way to protect vulnerable consumers
as new products enter the market without standards--such as connected
products? Is enough money allocated to compliance and enforcement
divisions?
Answer. It is important that CPSC has the resources to function
appropriately in the 21st Century. That includes our IT resources and
data processing capabilities. That is why I introduced a proposal to
hire a Chief Data Officer. This proposal was approved by my fellow
commissioners on a bipartisan basis; however, more work remains to
ensure the position is funded and implemented appropriately.
Similar to your CIO Parity Act, I proposed further investments to
strengthen the agency's data science expertise in our budget request. I
believe such investment is useful not only to gauge efficiencies at the
agency and to inform allocation decisions with respect to existing
resources, but also to support the agency's safety mission in general.
Kids in Danger Report: Social Media Practices
Kids In Danger (``KID''), a non-profit organization dedicated to
protecting children by fighting for product safety, released its latest
report in March.\4\ It found that both the CPSC and manufacturers
posted recalls on Facebook at lower rates in 2018 compared to 2017.
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\4\ https://kidsindanger.org/2019/03/kid-releases-annual-report-on-
recalled-childrens-products/
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CPSC posted only 45 percent of 2018 children's product recalls on
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
In addition, of the 48 manufacturers that issued recalls in 2018,
only 31 percent were announced on the company's Facebook page--down
from 51 percent in 2017.
Question 41. Why isn't the CPSC using all tools at its disposal to
make recalls are made known?
Answer. It is important that CPSC tailor corrective action plans to
maximize recall effectiveness. We know that direct-notice recalls, in
general, are most effective. In other instances, recall announcements
via social media may be called for. These decisions are made on a case-
by-case basis. I will continue to advocate that the agency use the
tools at its disposal, as appropriate, to publicize recall notices in
the most effective way possible.
Question 42. Why isn't the CPSC requiring manufacturers to issue
notices on manufacturers' Facebook pages? Why isn't that a standard
part of the corrective action plan?
Answer. Corrective action plans are negotiated on a case-by-case
basis. We know that direct notice-recalls, in general, are most
effective. In other instances, recall announcements via social media
may be called for.
Can a product that meets an existing standard be defective?
We are hearing increasingly often from companies that just because
their product is meeting a safety standard, their product can't be
defective and can't be subject to a recall. For example, Britax, the
maker of the B.O.B. jogging stroller argued that a product defect
required the violation of a safety standard. And the B.O.B. had passed
a test that required the removal front wheel to stay on after a strong
pull.
IKEA has also said the same thing about the Hemnes 8-drawer dresser
that killed a 2 year-old.
Question 43. If a product meets an existing standard but is killing
or seriously injuries children and babies, wouldn't you agree the
product should be recalled?
Answer. Furniture tip over incidents are a serious issue and I am
aware of fatalities. Product hazards involving fatalities warrant the
highest level of agency attention. Section 15 of the Consumer Product
Safety Act (15 U.S.C. Sec. 2064) provides that the Commission may order
manufacturers, distributors, and retailers to cease distribution of a
product and to take other appropriate corrective actions, if it
determines that a product presents a substantial product hazard. Among
other things, a ``substantial product hazard'' exists where there is a
product defect which, because of the pattern of defect, the number of
defective products distributed in commerce, the severity of the risk,
or otherwise, creates a substantial risk of injury to the public.
Question 44. Would you agree that the CPSC has the authority to
recall a product if it believes it poses an unreasonable risk of
serious injury or contains a defect that presents a substantial product
hazard--even if the product meets all existing standards?
Answer. Yes.
Question 45. Can a product be recalled if it meets an existing
standard?
Answer. Yes.
Question 46. Wouldn't you agree that if deaths and injuries are
occurring, the products may still be defective and a recall may be in
order?
Answer. See response to Question 43, supra.
Question 47. What are some examples of companies that have
voluntarily recalled products that didn't necessarily violate a
specific product standard?
Answer. Section 6(b) of the Consumer Product Safety Act (CPSA), 15
U.S.C. Sec. 2055(b), generally prohibits the public disclosure of
information that is provided to the CPSC in carrying out its
responsibilities under section 15 of the CPSA, 15 U.S.C. Sec. 2064
(relating to consumer product recalls). Section 6(b) also prohibits
public disclosure of any information that could identify a specific
product manufacturer unless the Commission has taken reasonable steps
to ensure that it is fair and accurate and has given the manufacturer
of the product(s) in question 15 days advance notice (of the
information to be disclosed) and an opportunity to comment. The
information called for in this question pertains to specific
manufacturers and retailers. Accordingly, I cannot lawfully provide
this response to the general public without going through the agency's
6(b) notification process. Nevertheless, and consistent with our rules
implementing section 6(b), 16 C.F.R. Sec. 1101.12(g), and with the
expectation that these materials are kept confidential, the agency is
permitted by law to provide that information to the Chairman or Ranking
Member of the committee or subcommittee of jurisdiction acting pursuant
to committee business. Subject to these legal concerns, I would be
happy to work with the Committee to provide this information.
Question 48. What role do you have in encouraging a manufacturer to
agree to a voluntary recall?
Answer. My role as Commissioner is to make sure that our laws are
enforced as robustly as possible to protect consumers. I have pledged
to execute the law faithfully, without fear or favor, and I take this
commitment seriously.
Enforcement of the Child Nicotine Poisoning Prevention Act
I am very concerned about the CPSC's enforcement of the Child
Nicotine Poisoning Prevention Act, which became law three years ago and
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers.
The agency has moved slowly to enforce this law, and public action has
primarily consisted of sending notices to industry about the
requirements.
Question 49. Is the agency doing any market surveillance on this
issue to identify non-compliant products? Have you done any surveys of
industry?
Answer. I share your concerns about the CPSC's enforcement of the
Child Nicotine Poisoning Prevention Act. Based on CPSC's market
surveillance, I am told that as recently as March 2019, as many as 100
percent of the liquid nicotine containers on the market did not comply
fully with the requirements of this statute, including the use of flow
restrictors and requirements with respect to general certificates of
conformity. While the agency has made incremental progress in its
enforcement efforts, more work is needed.
Question 50. Have you taken any enforcement action or enforced
civil penalties for failure to comply with the law? If not, why not?
Answer. Because CPSC's enforcement efforts with respect to the
Child Nicotine Poisoning Prevention Act remain ongoing, I am concerned
that my public testimony not prejudice any such proceeding. The
information called for in this question may also implicate specific
manufacturers and retailers that I cannot lawfully discuss publicly
without going through the agency's 6(b) process. Nevertheless, and
consistent with our rules concerning the public disclosure of
information, and with the expectation that these materials are kept
confidential, the agency is permitted by law to provide this
information to the Chairman or Ranking Member of the committee or
subcommittee of jurisdiction acting pursuant to committee business.
Subject to these legal concerns, I would be happy to work with the
Committee to provide this information.
Question 51. Are there authorities the agency is not using that it
should be to address products that pose a child health hazard like
liquid nicotine?
Answer. To my knowledge, the agency is bringing to bear all
existing resources to enforce the Child Nicotine Poisoning Prevention
Act.
Keeping Fellow Commissioners in the Dark
I am troubled by reporting that Acting Chairman Buerkle withheld
information from fellow Commissioners about defect investigations and
incident data--even when briefings have been requested. All
commissioners must have equal access to the information they need in
order to make informed and educated decisions--especially when voting
on matters.
For example, The Washington Post has already publicly reported on
how Democratic Commissioners felt in the dark about the Britax jogging
stroller investigation and frustrated by Acting Chairman Buerkle's
control of the flow of information.
Question 52. Did you feel like you were adequately informed and
briefed prior to your vote agreeing on the Britax settlement, and in
retrospect?
Answer. While I was not here at the time, it was the Commission's
position that sufficient evidence existed to support a preliminary
determination of the existence of a substantial product hazard in the
Britax matter. The company disagreed and the Commission ultimately
voted to bring an action. Because the Commission sits as an appellate
body in agency litigation, Commissioners are walled off from
litigation, including being able to review actual discovery or cross
examine witnesses.
Question 53. What do you need to do your job better?
Answer. As a Commissioner, I have a duty to conduct due diligence
on matters before the Commission. I have concerns about the constraints
on the agency that limit our ability to operate efficiently as a
collegial body, including under the Sunshine Act. Congress has sought
to revisit Sunshine Act Requirements for some of our sister agencies,
including FCC and FTC. I'm interested in working with my fellow
Commissioners and with this Subcommittee to point out areas where I
think this process can be improved.
Question 54. Do you feel like you have access to CPSC staff
expertise necessary to faithfully perform your job duties?
Answer. I believe all Commissioners would benefit from increased
access to agency staff.
Question 55. Are your requests for briefings from CPSC staff being
approved efficiently? Please list all briefing requests that have been
denied or postponed to a later date.
Answer. I routinely request briefings from CPSC staff including
closed briefings relating to compliance matters before the agency.
These briefing requests are not always approved. Such requests include,
but are not limited to, the following:
Request for closed compliance briefing on enforcement of the
Child Nicotine Poisoning Prevention Act (February 2019)
Request for Closed Compliance Briefing on inclined sleep
product enforcement (March 2019)
Request for Closed Compliance Briefing on inclined sleep
product enforcement (April 2019)
Request for Closed Compliance Briefing on inclined sleep
product enforcement (April 2019)
When briefing requests are approved, the CPSC General Counsel has
sought to limit the information conveyed, including through application
of privilege or narrowly defining the scope of the briefing.
CPSC FTE Vacancies
As so many of you have noted, the CPSC does a lot on a tiny budget.
However, I'm concerned by a growing number of vacancies at the CPSC and
how this might be affecting the agency's ability to fulfill its
important mission.
Question 56. How many FTEs are vacant?
Answer. The CPSC's current budget includes 539 FTEs. As of July 13,
2019, there were 37.9 FTE vacancies.
Question 57. How do these vacancies affect the CPSC's ability to
carry out its critical safety mission?
Answer. The current number of FTE vacancies significantly affects
CPSC's ability to carry out its mission.
Question 58. Why are these vacant? When do you anticipate they will
be filled?
Answer. The circumstances surrounding these FTE vacancies are
varied. It is my hope that CPSC will return to full strength as soon as
possible.
Question 59. Is there anything preventing these FTEs from being
filled?
Answer. I am aware of no legal impediments to filling the current
FTE vacancies. Nevertheless, in order to attract top talent, CPSC must
compete not only with other Federal agencies, but also with the private
sector, including major law firms, Silicon Valley and the financial
sector which are top draws for the Nation's best legal and engineering
candidates.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Peter A. Feldman
I appreciate that on March 8, CPSC clarified in a letter for
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'')
requires both child resistant packaging and flow restrictors for liquid
nicotine containers. Both of these product safety requirements are
important for preventing unintentional child ingestion of liquid
nicotine. CPSC had previously advised industry about the law's
requirements for child resistant packaging, but had not yet also
communicated the law's requirement for flow restrictors, despite the
reference to that requirement in the law's statutory language. However,
I am concerned that current ambiguity about the interaction of this
requirement with U.S. Food and Drug Administration (``FDA'') policy
could undermine the successful enforcement of the CNPPA.
As part of its process to assert its jurisdiction over electronic
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products
introduced after the August 8, 2016, effective date immediately subject
to the requirement for FDA authorization through the Premarket Tobacco
Product Application process. This includes both new products and
modified versions of previously marketed products. It is therefore
unclear whether changes to liquid nicotine containers to comply with
the flow restrictor requirements could potentially result in FDA
considering the product to be a new product, requiring Premarket
Tobacco Product Application authorization. While Congress clearly
provided this regulatory authority to CPSC before the FDA Deeming Rule,
I am concerned that ambiguity on the overlap of authority between the
agencies could lead to industry noncompliance with the CNPPA's flow
restrictor requirement, putting children at risk. In order to address
that possibility, I would appreciate your responses to the following
questions:
Question 1. Has the CPSC taken any enforcement action for liquid
nicotine containers for noncompliance with either the child resistant
packaging or flow restrictor requirements? If so, please provide
details on the extent of those enforcement actions.
Answer. Because CPSC's enforcement efforts with respect to the
Child Nicotine Poisoning Prevention Act remain ongoing, I am concerned
that my public testimony not prejudice any such proceeding. The
information called for in this question may also implicate specific
manufacturers and retailers that I cannot lawfully discuss publicly
without going through the agency's 6(b) process. Nevertheless, and
consistent with our rules concerning the public disclosure of
information, and with the expectation that these materials are kept
confidential, the agency is permitted by law to provide this
information to the Chairman or Ranking Member of the committee or
subcommittee of jurisdiction acting pursuant to committee business.
Subject to these legal concerns, I would be happy to work with the
Committee to provide this information.
Question 2. Have the CPSC commissioners or staff communicated with
FDA about the potential interaction of the CNPPA flow restrictor
requirement and the FDA Deeming Rule?
Answer. I am aware that conversations between CPSC and FDA have
occurred, at least on a staff-to-staff basis. I have requested a
readout of these conversations but have yet to receive it.
Question 3. Do the CPSC and FDA have plans to take any action to
provide clarity that ensures manufacturers follow the flow restrictor
requirements in CNPPA?
Answer. While I believe it is important that CPSC and FDA work
together to provide clarity to ensure manufacturers follow the CNPPA
flow restrictor requirements, it is my understanding that discussions
between CPSC and FDA remain ongoing.
Children's Cosmetics:
A recent study by Nationwide Children's Hospital and Ohio State
University examined injuries from cosmetics and other personal care
product--including nail care, hair care, skin care, and fragrance
products--to children under the age of 5 years old.
The authors used the CPSC's National Electronic Injury Surveillance
System to estimate that, nationwide, about 64,000 children had visited
hospital emergency departments for these injuries between 2002 and
2016.
Each year, about 4300 children are treated in emergency departments
for these injuries.
From this analysis, we know that these injuries happen at home and
that ingestion is the main route of exposure. But chemical burns and
eye injuries from children spraying fragrance into their faces are also
notable types of injury.
In light of this study, I have a few questions:
Question 1. What can the CPSC do to protect young children from
harm caused by personal care products?
Answer. CPSC's jurisdiction with respect to cosmetics and personal
care products is generally limited under our statute. Specifically,
cosmetics are excluded from the definition of ``consumer product.'' See
15 U.S.C. Sec. 2052(a)(5). CPSC retains jurisdiction over non-cosmetic
personal care products and is authorized to protect the public,
including young children, against unreasonable risks of injury
associated with such products and to develop uniform safety standards,
among other things, consistent with the agency's statutory procedures.
The agency is also authorized under the Poison Prevention Packaging
Act, 15 U.S.C. Sec. Sec. 1471-1477, to require child-resistant
packaging for certain household substances. Under this authority, which
does not exclude cosmetics, CPSC requires packaging for a number of
personal care products that is designed or constructed to be
significantly difficult for children under five years of age to open
within a reasonable time, and not difficult for normal adults to use
properly.
Question 2. Could product safety standards be developed that would
reduce the risk of injury to children from personal care products?
Answer. Yes. See response to Question 1, supra.
Question 3. Do you think believe warning letters are effective at
reducing injury? Why or why not?
Answer. Warning letters can be an effective tool, but are not the
only tool available to the agency. See response to Question 1, supra.
______
Response to Written Question Submitted by Hon. Tammy Duckworth to
Hon. Peter A. Feldman
While much progress was made on sudden unexplained infant death
(``SUID'') in the 1990s, little progress has been made in reducing SUID
over the past decade. In some high-risk groups, rates are going in the
wrong direction. The U.S. Centers for Disease Control and Prevention
(``CDC'') estimate that in 2017 there were about 3,600 SUID cases in
the U.S. Many products--everything from crib bumpers, nests or pillow--
like products and sleep positioners--are made and sold to help infants
sleep. The FDA has warned against sleep positioners and safe sleep
advocates warn against the use of crib bumper pads. Many of these
products meet no standard--mandatory or voluntary. The CPSC is in a
unique position to help address the public health problem of SUID
through its jurisdiction over infant products and opportunities to
communicate with families, caregivers and health care providers.
Question. What will you do, beyond education and awareness, to push
CPSC to use its authority to increase safe sleep among high-risk
families and to reduce the hazard posed by certain infant sleep
products such as crib bumpers and other untested products?
Answer. I am aware of SUID fatalities and share your concern that
little progress has been made in reducing these incidents over the past
decade. The Commission's job is to protect the public against
unreasonable risk of injury associated with consumer products,
including infant sleep products. Product hazards involving fatalities
warrant the highest level of agency attention. This includes deciding
whether mandatory standards are necessary. The key question is whether
the current voluntary standard, which allows for infant inclined sleep
products, eliminates or adequately mitigates the risk and whether the
agency can expect substantial compliance from industry.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Hon. Elliot F. Kaye
Question 1. Based on your statement on ending persistent hazards
from April 3, 2019, you included drownings as one of the ``10
persistent hazards'' that continue to lead to unintentional deaths
among American consumers. This Subcommittee remains interested in
ensuring the effective implementation of the Virginia Graeme Baker Pool
and Spa Safety Act, which aims to enhance the safety of public and
private pools and spas, reduce child drownings, reduce the number of
suction entrapment incidents, injuries and deaths, and educate the
public on the importance of constant supervision of children in and
around water. What recommendations do you have for this Subcommittee to
reduce drownings in the country?
Answer. There is a tremendous need for targeted public education
regarding pool safety based on epidemiological research of high-risk
populations. This type of research needs grant money to be made
available to scientists to fill gaps in our current knowledge.
Furthermore, technological innovations should be encouraged to help
with prevention of drownings. Isolation barriers--those that extend
completely around a pool--are known to provide better protection
against drownings, but consumers resist installing them for many
reasons. Encouraging innovations in pool barriers so that they are
easier to operate, install and activate would help consumers accept
them. Submersion detection systems are currently costly, but
innovations could make them more affordable and effective.
Question 2. You identified sports-related brain injuries as a
priority issue of yours in your statement on ending persistent hazards.
Would you please describe the current efforts of the CPSC and its
partners in researching brain injuries, including CTE, traumatic brain
injuries, and concussions?
a. What role should research into consumer products like helmet
technologies have in addressing this issue?
Answer. Research into helmet technologies is critical to
understanding the effectiveness of protective gear and ensuring that
consumers make informed decisions about the sports and recreational
activities they let their children pursue. CPSC staff monitors the
development of helmet technologies through its participation in
industry standards for helmets and other protective sports gear.
However, beyond tracking industry standards and reported incidents
associated with head injuries, the CPSC staff does not engage in
research in brain injury causes or treatments. Such research is
absolutely necessary to inform our work on helmet safety and is carried
out independently by NINDS/NIH and academia: https://www.ninds.nih.gov
/Disorders/All-Disorders/Traumatic-Brain-Injury-Information-Page/2732/
publications/1297.
Question 3. I am also a member of the Senate Appropriations
Subcommittee on Financial Services and General Government, which
oversees funding matters related to the CPSC. I remain committed to
ensuring that the CPSC has the resources and tools that it needs to
effectively protect the public from unreasonable risks of injury or
death due to the use of consumer products. Is the Commission have
adequate resources to fulfill its mission?
a. If not, where should additional resources be targeted?
Answer. Thank you for your commitment to funding our agency with
the necessary resources to fulfill our critical safety mission.
Unfortunately, the CPSC is truly underfunded. Our current budget of
$127 million is just not enough. As stated in my testimony, we lack
funding for much needed research and demonstration projects. We lack
funding for adequate coverage of dangerous products coming into the
country through our ports. We lack funding to adequately monitor online
sales channels. We lack funding to maintain our data infrastructure so
it operates smoothly and securely well into the future. We lack funding
to recruit and to retain talented investigators, enforcement officers,
engineers, scientists, economists, communication specialists, lawyers
and support staff.
When the Commission voted on its FY 2020 Congressional budget
request, I offered an amendment to increase our budget request amount
to $135 million from $127 million. Unfortunately, my amendment was not
adopted.
In my view, $135 million reflects the bare minimum needed to
continue operations at our previous years' levels. I have attached a
list of critical initiatives that both Commissioner Adler and I
support. If Congress were to increase our budget, I would target
additional resources in these identified areas.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Elliot F. Kaye
On April 8th of this year I sent Acting Chair Buerkle a letter
requesting documents and a further explanation of why the Commission
did not recall the BOB jogging stroller. In the information I received
back, it seems that the Commission knew of almost 200 incidents related
to the stroller, including some very serious injuries, because of the
front-wheel detachments problem.
We also learned that in late September 2017 the CPSC's Office of
Compliance did a presentation listing a litany of injuries that could
occur as a result of defects in the stroller, and stated that the
Commission should push for a recall. Acting on this information, the
Commission voted 3-1 in February 2018 to file an administrative lawsuit
against the stroller's manufacturer, Britax, asking for a finding that
the strollers presented a substantial product safety hazard and
demanding a recall. In October 2018, the composition of the Commission
changed and voted 3-2 to terminate the administrative case and settle
with Britax to avoid a recall. This settlement only required the
company to do an ``information campaign,'' and provide some replacement
parts for certain customers who recently bought a BOB stroller.
Furthermore, consumers with older strollers, were only eligible for
a 20 percent off coupon for a new BOB stroller.
Question 1. Do you think this settlement adequately protected
consumers?
Answer. No. Please see the attached dissenting opinions that I
issued with Commissioner Adler in this matter expressing our concerns
with the Consent Agreement and subsequent ``Addendum to the Consent
Agreement.''
Question 2. Would you have structured the remedy in this case
differently?
Answer. Yes, beginning with insisting the remedies be pursuant to a
genuine recall. For more specifics, please see the attached dissenting
opinions that I issued with Commissioner Adler in this matter
expressing our concerns with the Consent Agreement and subsequent
``Addendum to the Consent Agreement.''
Do you believe a free repair for all impacted strollers or a cash
refund would have been more effective?
Answer. Yes, of course.
Question 3. Is the Commission tracking corrective action completion
statistics for this recall?
Answer. Under the terms of the Consent Agreement, Britax was
required to report to the Commission on a quarterly basis the number of
consumers who had viewed the ``information campaign'' and requested any
of the ``incentives'' through January 2020. Beginning in July 2019, the
subsequent ``Addendum to the Consent Agreement'' requires that Britax
report this information to the Commission on a monthly basis rather
than quarterly basis through January 2021, and also report any consumer
complaints or reported incidents or injuries related to the
``incentives'' or replacement parts it provided.
If so, please state whether these statistics indicate, in your
view, a successive corrective action.
To date this has been a failed effort, as predicted. For more
information about my concerns, please see the attached dissenting
opinions that I issued with Commissioner Adler in this matter
expressing our concerns with the Consent Agreement and subsequent
``Addendum to the Consent Agreement.''
In May 2018, the Commission released a vague alert about deaths
involving inclined sleep products for infants. Then, nearly a year
later, Consumer reports published a story noting at least 32 deaths
associated with the Fisher-Price Rock `n Play infant sleeper. At the
time of the Consumer Reports disclosure, the Commission still had not
yet issued a recall regarding the Rock `n Play sleeper.
Question 4. Do you agree with the way Acting Chair Buerkle handled
the Rock 'n Play Recall?
Answer. No.
Question 5. If Section 6(b) of the Consumer Product Safety Act
restricts the agency's ability to disclose information, how can we
ensure that consumers get the information they need to better protect
themselves and their families?
Answer. As long as Section 6(b) continues to exist, the agency will
be limited in its ability to provide consumers with the information
they need to protect themselves and their families. However, even with
Section 6(b), the agency has room to be more assertive on behalf of
consumers. Unfortunately, we have stopped using tools available to us.
The settlement the Commission approved with Britax on the BOB
jogging stroller seems structured specifically to allow the
manufacturer of the stroller, Britax, to avoid calling the settlement a
recall. Specifically, language in the settlement states: ``We are
pleased to report that we have resolved this litigation without a
recall by developing and launching an information campaign.''
Question 6. Does this type of settlement adequately inform
consumers of a safety problem with the BOB jogging stroller?
Answer. Of course not. Please see the attached dissenting opinions
that I issued with Commissioner Adler in this matter expressing our
concerns with the Consent Agreement and subsequent ``Addendum to the
Consent Agreement.''
Question 7. Is industry incentivized to downplay the safety risks
in these types of notices?
Answer. Yes. If consumers do not fully understand the nature of a
safety risk and the available remedies, they are less likely to respond
to a notice. If fewer consumers respond to a notice, a firm will have
to issue fewer refunds, repairs and retrofit supplies.
Question 8. Does it make sense to provide industry more authority
over recalls and corrective action plans?
Answer. Absolutely not. That would be a disaster for consumer
safety. The Consumer Product Safety Act, including Section 6(b),
already gives firms too much control over voluntary recalls and
corrective action plans, and makes it difficult for the Commission to
act quickly when a firm is refusing to recall a hazardous product or a
firm's proposed corrective action plan is inadequate.
Question 9. Do you believe that the CPSC has been successful at
achieving acceptable recall return and repair rates on children's
products? Yes or no? What do you base that on?
Answer. No. We know that recall effectiveness rates for children's
products are poor.
Question 10. Do we need more data?
Answer. No. We already know that recall effectiveness rates for
children's products are poor.
Question 11. What can we do to ensure that recalls are effective?
Answer. On July 19, 2017, I issued a statement setting forth the
six basic principles that I believe are necessary to ensure that
recalls are effective.\1\ At a minimum, recalls must: (1) be simple and
easy-to-understand for everyone who uses the product; (2) make the
remedy available to consumers right away; (3) make the remedy
completely free to consumers, both financially and in terms of time and
resources spent; (4) be complete and remove the hazard all at once; (5)
give consumers choices; and (6) involve no less time, money, energy,
creativity and personnel than went into selling the product in the
first place, and use all available forms of reaching consumers,
including social media, paid advertising and direct notice, if
possible. However, the Consumer Product Safety Act, including Section
6(b), gives firms too much control over voluntary recalls and
corrective action plans, and makes it difficult for the Commission to
act when firm's proposed corrective action plan is inadequate.
---------------------------------------------------------------------------
\1\ https://www.cpsc.gov/about-cpsc/commissioner/elliot-f-kaye/
statements/statement-of-com
missioner-elliot-f-kaye-on-consumer.
Are you familiar with shareable electric scooters?
Answer. Yes.
These vehicles are now everywhere in Washington, DC, Seattle,
Washington, and many other cities across the country. The perception is
that the scooters are safe and easy to use. But, scooter injuries are
piling up. Consumer Reports found that over 1,500 people have been
injured in e-scooter crashers since late 2017. One hospital in Austin,
Texas, in a six-month period, reported 66 severe traumas including 19
head injuries, 38 orthopedic injuries and 13 facial injuries. The
concern is so great that the CDC is now investigating the rise of these
injuries.
Question 12. What is the CPSC doing to prevent injuries from shared
electric scooters provided for rent?
Answer. My understanding from CPSC staff is that the CPSC is
engaged in a very limited way in some voluntary standards and
compliance related activities. However, I believe that the CPSC can and
should be doing much more to address safety issues related to e-
scooters.
Question 13. Is the CPSC adequately tracking these incidents?
Answer. Injuries and incidents involving e-scooters are reported to
the CPSC using all of the reporting methods available to the agency,
including hospital reporting, coroners' reports and consumer reporting
through our online portal. These methods undoubtedly represent an
undercount of true number of incidents in the U.S. The agency overall
is moving too slowly and too tentatively when it comes to this serious
safety issue. It is representative of a large cultural shift away from
putting safety first.
Tip Overs:
Question 1. Please describe why the Commission has chosen not to
use Section 104 rulemaking to address--at least in part--the tip-over
issue.
Answer. On March 13, 2019, at the decisional meeting for the
Commission's Fiscal Year 2020 Performance Budget Request to Congress,
Commissioner Adler and I introduced a joint amendment to direct staff
to draft a Notice of Proposed Rulemaking (NPR) under the Commission's
Section 104 rulemaking authority to address children's clothing storage
units, but it was defeated by a vote of 3 to 2. Commissioner Adler and
I issued a statement explaining our proposal.\2\ The reasons that our
colleagues gave for voting against using our Section 104 rulemaking
authority can be found in the Commission's meeting minutes.\3\ If the
Commission genuinely wants to accelerate addressing this serious
hazard, it would use all of the tools available to us, including moving
under Section 104.
---------------------------------------------------------------------------
\2\ https://cpsc.gov/s3fs-public/
FINAL%20DISSENTING%20OPINION%20of%20ADLER.KAYE
%20on%20TipOver%20104.pdf?FoCMPSLBPIjVbn2nO.18ptIu9cwxmgE0.
\3\ https://cpsc.gov/s3fs-public/
2020%20Performance%20Budget%20%20Comm.%20Meeting%20
Minutes.pdf?dFRVaoE_tIxvibk4RKK6apwMI_ME5gL9.
Question 2. Has the Commission reviewed safety issues associated
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any
such review.
Answer. I cannot comment on this matter as part of a published
public hearing record, but CPSC staff is available to discuss this
issue with you in a different setting.
Question 3. What activities does the Commission take to ensure that
consumers who own recalled products are directly notified of a
potential safety issue (as opposed to general education campaigns)?
Please describe these activities in detail.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
CPSC strives to maximize direct notification to the best of the
firm's capabilities when negotiating recalls. When a firm
demonstrates that [it is] able to directly contact 95 percent+
consumers who have purchased a recalled product, CPSC will
issue a Recall Alert rather than a Press Release.
Beyond CPSC staff's answer, the agency should require companies to
work harder at reaching their own customers about recalls.
Question 4. Has the Commission reviewed any voluntary standards
associated with dressers? Please share the details of any such review.
Does the Commission have any planned activities to improve the safety
of dressers? If so, please describe such activities in detail.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
Staff is actively engaged with ASTM 15.42 Subcommittee for
Clothing Storage Units (CSUs)] to improve the ASTM standard
F2057-17. Improvement efforts are centered on consumer
interactions with product and consumer use scenarios identified
in the [Advance Notice of Proposed Rulemaking]. Staff are
active members of task groups supporting the subcommittee
working on issues such as: dynamic testing, multiple/loaded
drawer testing, carpet testing, testing repeatability and
operational slide length. Staff is researching new test
methodologies based on available incident data and testing over
185 samples which represent a variety of CSUs designs on the
market today.
Beyond CPSC staff's answer, I continue to believe that F2057-17
does not adequately address the worst-case scenarios associated with
furniture tip-overs. To that end, on May 21, 2019, at the decisional
meeting for the Fiscal Year 2019 Midyear Review and Proposed Operating
Plan Adjustments, Commissioner Adler and I offered the following
proposal, which was adopted by a majority of the Commission:
Staff shall work with ASTM voluntary standards committees on
the applicable furniture tip-over related standards to develop
a better performance requirement that prevents furniture tip-
over in worst-case scenarios. This work shall include updating
the test weight and working to develop better, more dynamic
test methods that mimic real-life scenarios including
replicating the forces seen as a child climbs on a drawer.
Staff shall work to develop test methods that account for the
weight of 95th-percentile children of the oldest reported child
victim age, always using the most current weight data; the full
extension of multiple drawers that are realistically weighted
with reasonably foreseeable loads; reasonably foreseeable
dynamic impulses observed in stepping onto an elevated surface,
such as those recorded in previous CPSC studies of oven
stability; and the effects of carpeted surfaces with carpet
tack strips under the back legs of a dresser. Surrogate methods
could be used to address these parameters. A dynamic approach
could be used as the basis for a static test.\4\
---------------------------------------------------------------------------
\4\ My full statement on this proposal is available here: https://
www.cpsc.gov/s3fs-public/Kaye-Statement-Midyear-
FY19.pdf?15GNbsKhQ.mz43y6JoDGrunCqFyQ5FHj.
---------------------------------------------------------------------------
______
DISSENTING OPINION
COMMISSIONER ROBERT S. ADLER AND COMMISSIONER ELLIOT F. KAYE
IN THE MATTER OF BRITAX CHILD SAFETY, INC.
CPSC Docket 18-1
NOVEMBER 9, 2018
CPSC Complaint Counsel and Respondent in the above titled matter
have proposed a settlement of the case brought by Complaint Counsel
regarding the alleged hazards of single and double occupant strollers
sold by Britax under the name, B.O.B. On November 9, 2018, by a vote of
3-2, the Commission voted to accept the proffered settlement. Although
we commend the parties for reaching agreement after what appears to be
a lengthy and exhaustive negotiation, we respectfully and reluctantly
dissent from approving the agreement.
In any negotiation each party must compromise to reach an
agreement. We have no problem with appropriate compromises, and we are
well aware of the maxim that we should not let the perfect be the enemy
of the good. Alas, to us, despite the best efforts of talented counsel
on both sides, this agreement falls short of the good.
Background
The B.O.B. strollers in question were introduced into commerce in
1997 and sold by a company known as B.O.B. until December 2011, when
Respondent Britax merged with B.O.B. Thereafter, Britax sold numerous
models of the strollers under the original B.O.B. name.
On February 16, 2018, Complaint Counsel filed an administrative
complaint against Britax, seeking a recall of the subject strollers
pursuant to section 15 of the Consumer Product Safety Act (CPSA), 15
U.S.C. Sec. 2064. Complaint Counsel alleged that a Quick Release
mechanism on the strollers failed to secure the front wheel to the
fork, allowing the front wheel to detach suddenly and unexpectedly
during use. Staff further alleged that this defect constituted a
Substantial Product Hazard under section 15 of the CPSA, leading to a
number of serious injuries both to caregivers pushing the strollers and
to children sitting in the strollers.
As of the date of filing the complaint, staff alleged that
approximately 200 consumers had reported front wheel detachments while
using the strollers, resulting in at least 50 injuries to children and
47 adults. Among the injuries alleged to have occurred to children: a
concussion, injuries to the head and face requiring stitches, dental
injuries, contusions and abrasions. Among the injuries alleged to have
occurred to caregivers: torn labrum, fractured bones, torn ligaments,
contusions and abrasions.
The Commission authorized the issuance of the complaint after
Britax declined to recall or repair the strollers.
The Agreement
Briefly described, under the terms of the Agreement, Respondent
will undertake what is termed a ``robust, intensive'' information
campaign to instruct consumers how to safely and correctly operate the
Quick Release on the strollers. One of the main features of the
information campaign will be an instructional video for consumers
demonstrating and describing how to safely operate the Quick Release.
As part of the information campaign, Respondent will e-mail notice of
the campaign to all known dealers and retailers of the strollers
located in the United States.
In addition to the information campaign, the Agreement, inter alia,
calls for Respondent to supply free parts, accessories, discounts and
incentives to consumers who ``self-identify'' as having concerns about
their ability to safely and correctly operate the Quick Release on
strollers manufactured between January 1, 2009 and September 30, 2015.
Respondent will do so through one of three options:
1. A new Quick Release mechanism that has a lever that operates only
90 degrees, thereby permitting consumers easily, by visual
inspection, to know whether the mechanism is properly fastened;
2. A new ``thru-bolt'' (with installation tools) which is
permanently fastened, thereby precluding any unexpected release
of the wheel, but which defeats the Quick Release function of
the stroller; or
3. A 20 percent discount off the Manufacturer's Suggested Retail
Price (MSRP) of any new BOB Gear stroller, subject to
availability of the new strollers.
For strollers manufactured prior to January 1, 2009, the Agreement
will offer owners a 20 percent discount off the MSRP, subject to
availability of the new strollers. However, Respondent will not offer
the mechanical repairs described in paragraphs 1 and 2 above to such
owners.
Although we applaud the good faith and spirit of the Agreement,
upon careful reflection, we cannot support it for at least two major
reasons:
The Misleading Nature of the Agreement: In virtually every Corrective
Action Plan the Commission enters into, we insist that it be described
to the public as a ``recall.'' The reason is simple. Consumers know
that this term signals that a manufacturer has agreed to take some kind
of corrective action to fix a safety problem with its product. The
media knows that this term will typically command consumers' instant
attention and concern without the need for more elaborate explanations.
Of course, the fact that consumers' attention is drawn to this news is
only a first step in removing or repairing hazardous products, but
without such a flag, the task of protecting consumers is made much
harder. Consumers need to know that safety concerns are afoot in order
to decide whether to avail themselves of such protections.
By its terms, this Consent Agreement explicitly rejects
characterizing this Corrective Action Plan as a recall. Paragraph 20 of
the Agreement leaves no doubt on the point:
The parties agree that the actions taken pursuant to this
Consent Agreement and Order shall not be construed as a recall
pursuant to section 15 of the Consumer Product Safety Act, 15
U.S.C Sec. 2064. (emphasis added)
Underscoring this point is the notice that Respondent intends to
send to dealers and retailers, which states as follows:
In February, we notified you that the U.S. Consumer Product
Safety Commission had sued Britax to compel a recall of certain
BOB strollers manufactured prior to September 2015. We are
pleased to report that we have resolved this litigation without
a recall by developing and launching an information campaign to
further instruct consumers how to safely and correctly operate
the Quick Release on the BOB strollers manufactured prior to
September 2015. Consumers will be offered incentives to
participate in the information campaign, which are more fully
described in the links below. If any of your customers ask you
about this issue, please direct them to [INSERT HYPERLINKS TO
CPSC PRESS RELEASE AND INSTRUCTIONAL VIDEO].'' (emphasis added)
To say the least, this notice is aggressively misleading. What
Respondent is (too) quietly offering goes beyond a mere information
campaign; it is a program for corrective action to modify and repair
strollers for those consumers dogged enough to pursue a remedy that
would actually make their strollers safer. Yet, the notice to the
public and to the firm's distribution chain neglects to point this out
in any clear or meaningful fashion. Needless to say, without being
fully informed that relief from the hazard extends to repairs,
consumers may well ignore an information campaign that is fairly
complex to follow and understand.
In making this point, we need to add some further thoughts. As much
as we would prefer to use the term ``recall,'' as a matter of
compromise, we would have been cautiously open to a different way of
describing the relief offered in this case. A more accurate description
of the relief carefully offered and fully explained would have
satisfied us. But, describing the Agreement as an information campaign
``without a recall'' misleadingly directs the public's attention away
from the actual terms agreed to by the parties. It's not quite
analogous to a tree falling in a forest with no one to hear it, but
it's close. Having an agreement that provides relief without anyone
being fully alerted to the nature of the relief is pretty much no
relief at all.
Compounding the problem is the fact that the parties have provided
no explanation why the term ``recall'' was rejected nor have they
explained why this alternative approach would be acceptable. We surmise
that rejecting the term ``recall'' was a point that Respondent insisted
upon. If so, they needed to explain why this point was so important to
them and, more importantly, to provide some evidence that this revised
approach would provide sufficient protection to consumers that it would
be acceptable to proceed with it.\1\
---------------------------------------------------------------------------
\1\ Additionally, it is unclear what enforcement authorities the
parties refer to in the Agreement when they state that ``[t]he
Commission shall retain jurisdiction to enforce the provisions of the
Consent Agreement and Order.'' Any violation of an order issued under
Section 15(c) or (d) would be a prohibited act under Section 19(a)(5)
and may subject a violator to civil or criminal penalties, see 15
U.S.C. Sec. Sec. 2069-70. We are concerned that this language does not
specify whether this provision applies to this settlement, and it may
be difficult for the Commission to meaningfully enforce the Agreement.
---------------------------------------------------------------------------
Limited Scope of Relief: As we stated at the outset, the B.O.B.
strollers were first introduced into commerce beginning in 1997. So,
the allegedly hazardous strollers were produced over a period of
roughly 18 years. Yet, the mechanical fix for the strollers offered by
Respondent extends back only to 2009--a period of just six years.
Nowhere in the Agreement is there any explanation why the fix is so
limited in time. If the pre-2009 strollers do not contain the alleged
defect, the parties should have explained this. If, on the other hand,
the parties believe that few, if any, pre-2009 strollers remain in use,
we would like to see evidence of this. It's our understanding that
there is a substantial secondary market for these strollers and that
large numbers of them remain in use. If so, we can see no reason for
refusing to extend the offer of a mechanical repair to what constitutes
two-thirds of the years of production.
Summarily limiting full remedies to all purchasers of these
allegedly hazardous products without explanation constitutes a fatal
flaw in this Agreement to us.\2\
---------------------------------------------------------------------------
\2\ We also note that the Agreement limits the information campaign
to a period of 24 months from its announcement and limits the
availability of parts and accessories, discounts, or other incentives
to a period of 12 months from the information campaign's announcement.
As a general matter, relief to consumers should not have such a short
expiration date. There is no explanation for why Respondent should not
provide the same safety information and remedy to all consumers who may
have concerns about their ability to safely and correctly operate the
Quick Release, regardless of when those concerns may arise.
---------------------------------------------------------------------------
Conclusion
Despite offering a number of very positive features, this
Corrective Action Plan falls short of what we believe the Commission
should approve. We regret this not only because we believe consumers
will come up short in terms of safety, but also because we fear that
other respondents will invoke this agreement as a precedent in future
recalls, thereby lessening safety for far more consumers than are
affected by this agreement.
______
DISSENTING OPINION
COMMISSIONER ROBERT S. ADLER and COMMISSIONER ELLIOT F. KAYE
IN THE MATTER OF BRITAX CHILD SAFETY, INC.
CPSC Docket 18-1
July 19, 2019
CPSC Complaint Counsel and Respondent in the above titled matter
have come before the Commission for our approval of an ``Addendum to
the Consent Agreement'' regarding the alleged hazards of single and
double occupant strollers sold by Britax under the name, BOB. Once
again, we must vigorously dissent. Regrettably, this new proposal
continues the errors of the previous consent agreement.
Without repeating the full details of the previous consent
agreement between Complaint Counsel and Respondent, we note that
Complaint Counsel alleged in an administrative complaint against the
company that the quick release mechanism on certain of its strollers
failed to secure the front wheel to the fork, allowing the front wheel
to detach suddenly and unexpectedly during use. Staff further alleged
that this defect constituted a Substantial Product Hazard under section
15 of the Consumer Product Safety Act (CPSA), leading to a significant
number of serious injuries both to caregivers pushing the strollers and
to children occupying them. After the case was filed, the parties
reached a negotiated settlement to which we objected.
Our objection to the consent agreement rested on at least two
grounds: (i) the agreement between the parties was misleadingly
described as an ``information campaign'' when, in fact, it was a recall
with specific repairs available to those who managed to slog their way
through the misdirection and obfuscation contained in the public
announcement of the corrective action and (ii) the corrective action
was offered only to a fraction of those who owned a BOB stroller--
arguably only about a third of the owners.\1\
---------------------------------------------------------------------------
\1\ We also objected to the limited time period of 24 months for
the ``information campaign'' coupled with the limit of 12 months for
the availability of parts and accessories, discounts, and other
incentives from the date of the announcement of the information
campaign.
---------------------------------------------------------------------------
Implementation Problems with the ``Information Campaign''
Compounding the problems with the ``information campaign,'' when
Britax sent out replacement parts for the BOB stroller, the parts
turned out to be defective. Specifically, a new metal bolt meant to
replace the strollers' quick release bolt turned out to be prone to
easy breakage. According to a story in the Washington Post,\2\
consumers who installed the new bolts almost immediately discovered how
easily they broke. In one instance, a consumer who installed the
replacement bolt found that it split into two pieces the day after he
installed it.
---------------------------------------------------------------------------
\2\ Todd C. Frankel, ``Britax sent defective fix to customers in
deal to avoid safety recall of its BOB strollers,'' Washington Post
(May 3, 2019). https://www.washingtonpost.com/business/economy/britax-
sent-defective-fix-to-customers-in-deal-to-avoid-safety-recall-of-its-
bob-strollers/2019/05/03/f6db7c7c-6da9-11e9-be3a-
33217240a539_story.html?utm_term=.278be93ee95b
---------------------------------------------------------------------------
To say the least, replacing a problem part of a product with
another problem part raises serious questions about the company's
quality control procedures as well as its commitment to the safety of
its customers.
The Revised Agreement
At the outset, we note that the addendum to the consent agreement
between Complaint Counsel and Britax contains additional relief for
some of the owners of BOB strollers. That said, we cannot help but
notice that these extra provisions came about only after a critical
front-page article in the Washington Post highlighted the deficiencies
in the original agreement.\3\ Whether the firm would have been amenable
to strengthening the terms of the consent agreement without the added
pressure of such negative publicity is highly iffy.
---------------------------------------------------------------------------
\3\ Todd Frankel, ``After hundreds of crashes, this Britax jogging
stroller faced recall. Then Trump appointees stepped in.'' Washington
Post (April 2, 2019). https://www.washingtonpost
.com/business/economy/after-hundreds-of-crashes-this-britax-jogging-
stroller-faced-recall-then-trump-appointees-stepped-in/2019/04/02/
faf23c20-4c06-11e9-b79a-961983b7e0cd_story.html?no
redirect=on&utm_term=.e6c2c0e85497.
---------------------------------------------------------------------------
We would summarize the most significant features of the addendum to
the consent agreement as follows:
Britax will add new graphics and text to the home page for
its BOB Gear that further directs consumers to the
``Information Campaign.''
Britax will add tabs to its website that will attempt to
improve the user experience with engaging the quick release
mechanism of its stroller.
Britax will increase the frequency of confidential reporting
information to CPSC on the results of its information campaign.
Britax will extend its incentives offer until January 10,
2021.
Britax will re-send direct notice to consumers for whom it
has registration data.
Britax will provide substitute thru-bolts to replace the
defective bolts it sent to consumers under the original consent
agreement.
While we welcome the additional protections for consumers in the
addendum, we fail to see how it does much to improve the overall
weakness of the original consent agreement. The addendum does nothing
to fix these problems with the original consent agreement:
The Corrective Action Plan is Not Just An Information Campaign;
It's a Recall: Those owners of BOB strollers who read about Britax's
``Information Campaign'' may well not realize that Britax obligated
itself to provide mechanical fixes to eligible consumers who requested
such fixes. This is a direct result of the company's refusal to
acknowledge that its agreement constitutes a recall as well as an
``Information Campaign.'' Nothing in the addendum agreement provides
the necessary clarity for consumers to understand their rights to
remedial action. Accordingly, we continue our belief that the original
consent agreement is aggressively misleading. As we said previously,
without being fully informed that remedial action is available,
consumers may ignore an information campaign that is fairly complex to
follow and understand.
Providing Enhanced Remedies to a Limited Set of Consumers Does
Nothing to Protect Those Excluded From the Corrective Action Plan: As
much as we applaud Britax's offer to enhance certain aspects of the
consent agreement for the small subset of consumers for whom it is
willing to provide some remedial relief, we remain dissatisfied with
the firm's refusal to include those who purchased strollers during two-
thirds of the years of the product's sale to the public. The BOB
strollers were manufactured beginning in 1997, yet, without any
explanation in the record, Britax refuses to provide remedies for pre-
2009 strollers. We see no indication that the hazard miraculously
appeared in 2009 with no danger associated with earlier years of
production. Certainly, to imagine that the pre-2009 strollers are all
off the market is unreasonable given the sizable secondary market for
these strollers. Yet, that is the implicit message in the firm's
refusal to extend its remedies to earlier years of production.
Conclusion
Our test for whether to approve the addendum to the consent
agreement is a simple one. If the consent agreement with the addendum
had been presented to us as an original proposal in November 2018,
would we have approved it? Our answer is an emphatic, no. The addendum
may put more lipstick on the pig, but the underlying object remains as
porcine as ever.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Hon. Elliot F. Kaye
Infant Inclined Sleepers
On April 6, Consumer Reports reported there have been at least 32
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby
product that belongs to a category of products known as ``infant
inclined sleepers.'' On April 11, Consumer Reports reported there have
been at least 4 infant deaths linked to a similar product manufactured
by Kids II. It was only after the publication of these two articles and
the ensuing public outrage that the manufacturers involved agreed to
work with CPSC to recall these deadly products.
Question 1. Was the CPSC aware of these infant fatalities before
Consumer Reports published these figures?
Answer. Yes.
Question 2. Were you aware of these infant fatalities before
Consumer Reports published these figures?
Answer. Yes, and I was pushing aggressively for at least a year for
a stop sale and a recall.
Question 3. If Consumer Reports had not published its findings
regarding infant fatalities caused by infant inclined sleepers, do you
think these products would have been recalled when they were?
Answer. It is difficult to say with any certainty how Consumer
Reports' publication affected the timing of the recall.
Question 4. When do you think these products would have been
recalled had Consumer Reports not published its findings regarding
infant fatalities caused by infant inclined sleepers?
Answer. It is difficult to say with any certainty how Consumer
Reports' publication affected the timing of the recall.
Question 5. After how many fatalities, do you think these products
should have been taken off the market?
Answer. Fatalities should not have to occur before any hazardous
product is taken off the market. In this case, sadly the agency knew
for at least a year that there were a number of deaths associated with
the product, but it failed to move with urgency.
Question 6. How many fatalities must happen before the CPSC
initiates a recall?
Answer. Fatalities are not a requirement for initiating a recall.
Once a hazard pattern is identified, CPSC staff can and should
immediately begin negotiations for a strong and effective voluntary
recall and corrective action plan with the firm.
The Safe Sleep Act of 2019
I have introduced the Safe Sleep Act of 2019. This legislation
would prohibit the sale, manufacture, and import of infant inclined
sleep products--a dangerous category of infant products, of which the
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My
legislation would also make sure that no new standard can be
established for a sleep product that is inconsistent with safe sleep
best practices.
The American Academy of Pediatrics and safety advocates have long
been clear that a safe sleep environment is a firm, flat, bare surface.
It is clear that infant inclined sleep products are incompatible with
the recommendations of the leading experts on safe sleep.
Question 7. When it comes to establishing standards for infant
sleep products, can you commit that you will only support standards
that are consistent with safe sleep best practices agreed upon by
pediatricians and safety advocates? If your answer is ``No,'' then why
not?
Answer. I support evidence-based safe sleep best practices. I
believe that infant sleep products should be made consistent with those
practices.
Question 8. Do you believe that infant inclined sleep products are
a category of products that can be considered safe for sleep?
Answer. I am deeply concerned by the incidents and deaths
associated with inclined sleep products and believe that the Commission
should consider amending the scope of 16 C.F.R. Part 1218, Safety
Standard for Bassinets and Cradles, to include infant inclined sleepers
and propose making any necessary amendments to that standard to address
the risks associated with this product category.
Question 9. How would you have handled this issue differently, and
how do you think the agency should proceed to prevent further infant
deaths associated with these products?
Answer. I am deeply concerned by the incidents and deaths
associated with inclined sleep products. To that end, on May 21, 2019,
at the decisional meeting for the Fiscal Year 2019 Midyear Review and
Proposed Operating Plan Adjustments, Commissioner Adler and I offered a
proposal to direct staff to work with the appropriate voluntary
standard bodies to develop evidence-based performance requirements to
eliminate the hazard patterns associated with infant inclined sleepers
and to survey the marketplace, including imports, for infant inclined
sleepers and, if appropriate, pursue corrective actions with respect to
those products that pose a safety hazard to infants. Unfortunately,
this proposal was not supported by our colleagues and it was defeated
by a vote of 3 to 2.\5\ This failed vote was and remains inexplicable
to me.
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\5\ My full statement on this proposal is available here: https://
www.cpsc.gov/s3fs-public/Kaye-Statement-Midyear-
FY19.pdf?15GNbsKhQ.mz43y6JoDGrunCqFyQ5FHj.
---------------------------------------------------------------------------
Section 6(b)
Question 10. What role do you believe Section 6(b) of the Consumer
Product Safety Act (``CPSA'') play in preventing the CPSC from acting
sooner to recall these deadly products? \6\
---------------------------------------------------------------------------
\6\ Note: Section 6(b) of the Consumer Product Safety Act prohibits
the Commission from disclosing information about a consumer product
that identifies a manufacturer without the permission of the
manufacturer.
---------------------------------------------------------------------------
Answer. Section 6(b) is the primary obstacle to informing the
public about hazards associated with specific consumer products and
often results in protracted negotiations over recalls and press
releases. As I have stated before, people die because of Section 6(b).
Question 11. Does that mean Section 6(b) is preventing the CPSC
from fulfilling its stated mission to protect the public from
unreasonable risks of serious injury or death?
Answer. No doubt about that. Section 6(b) significantly impairs the
agency's ability to communicate known risks of serious injury or death
to the public. Because of this, consumers cannot make informed
decisions about their products. In addition, Section 6(b) gives firms
too much control over voluntary recalls and corrective action plans and
makes it difficult for the Commission to act quickly when a firm is
refusing to recall a hazardous product or firm's proposed corrective
action plan is inadequate.
Question 12. Do you think Section 6(b) protects consumers?
Answer. No. Section 6(b) harms consumers. It is anti-consumer
safety and anti-transparency.
Window Covering Safety
In December 2018, a new window covering standard went into effect
that bans cords on stock products.
Question 13. Please provide detailed market data underlying the
claim that the new window covering standard, which applies to stock
products sold in stores and online, actually accounts for more than 80
percent of all window covering products sold in the United States.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
This statement originated from a [Window Covering Manufacturers
Association (WCMA)] member in a meeting between CPSC and WCMA
in May 2015. The basis for this statement was a 2015 KeyStat
study. This study was provided to CPSC staff as confidential
business information by one of the WCMA members.
I have seen no proof that these numbers are accurate, nor do I
believe it is appropriate to rely on such unverified and old data.
Question 14. Do most daycares and preschools have stock or custom
window coverings? Please provide data for your answer.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
We do not have data that provide a stock versus custom breakout
for daycares/preschools.
Question 15. Do most affordable housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
We do not have data that provide a stock versus custom breakout
for affordable housing.
Question 16. Do most military housing units have stock or custom
window coverings? Please provide data for your answer.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
We do not have data that provide a stock versus custom breakout
for military housing.
Question 17. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing in stores.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
If [a] consumer intends to purchase a window covering off-the-
shelf in a store, those products are classified as stock [and]
are subject to the stock window covering requirements (i.e.,
cordless, short cord, or inaccessible cord).
However, it is important to note that once installed, there is no
readily discernable difference between stock and custom products,
except that custom products may have hazardous accessible cords that
can kill children.
Question 18. Please explain in detail how consumers can tell the
difference between a custom and stock window covering product when they
are purchasing online.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
The window covering standard requires a warning label on the
website if the website is relied upon for promoting,
merchandising, and selling [custom corded product] online. This
way, the consumer is informed about the strangulation hazard
while placing an order for a corded custom window covering.
CPSC staff has suggested to the WCMA technical committee that a
guidance document for online sales of stock and custom products
[would] be useful to add to the standard.
Again, however, it is important to note that once installed, there
is no readily discernable difference between stock and custom products,
except that custom products may have hazardous accessible cords that
can kill children. Your question gets to how absurd this supposed
distinction is.
Question 19. What is the CPSC doing to monitor compliance with the
new window covering standard? How can the CPSC enforce when it's
unclear whether a product is stock or custom?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
CPSC is monitoring the sale of corded window coverings on
online platforms and developing plans to monitor at ports and
in retail stores.
In order to comply with the ANSI/WCMA voluntary standard, all
products should be designated as ``Custom'' or ``Stock'' on the
manufacturer label, using a ``C'' or the word ``Custom,'' or an
``S'' or the word ``Stock'', respectively. Stock products are
substantially fabricated in advance of being distributed in
commerce and in advance of any specific consumer request for
that product. Such product is likely a stock product if it
appears online readily available to ship, and has limited/
specific pre-determined sizing, color, and material options.
I have been requesting for a year that the CPSC aggressively
monitor compliance with the new window covering standard since it first
went into effect in 2018. Although long overdue, I am pleased that CPSC
staff now reports that they are monitoring online platforms and are
developing plans to monitor corded window coverings at ports and in
retail stores.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
Two years ago, a video went viral showing near-tragedy from a
furniture tip-over: twin brothers climbing on the Ikea Hemnes 8-drawer
dresser leading it to tip over--one being nearly crushed by it and the
other miraculously saving him. The parents had posted the video to warn
others about the danger.\7\ Tragically, five months later, the same
kind of Ikea dresser fell on another 2-year old boy in his bedroom,
killing him. This dresser still has not been recalled.
---------------------------------------------------------------------------
\7\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
While Ikea has recalled the HEMNES 2, 3, 5, and 6-drawer versions
of this dresser, it has steadfastly refused to recall the 8-drawer
dresser. IKEA refuses to recall it because it does not fail the
existing furniture stability test. They maintain that the product is
safe--even in the face of clear video evidence that it is not.
Kids In Danger, Consumer Federation of America, Parents Against
Tip-overs, and Consumer Reports have all called for the recall of this
product.
Question 20. Do you believe that the current standard governing
furniture stability is inadequate?
Answer. It is totally inadequate. This standard needs to be
significantly updated.
Question 21. Have you personally had any conversations with Ikea
urging them to agree to a voluntarily recall of this dangerous product?
Have you directed CPSC staff to have such conversations? Why or why
not?
Answer. I cannot comment on this matter as part of a published
public hearing record, but I am available to discuss this issue with
you in a different setting.
Illegal Sale of Recalled Products
As yard sales and garage sales move online, the CPSC must keep up
with the times and work with online platforms that facilitate the sale
of used products to make sure they have strong policies in place that
protect consumers from unwittingly purchasing hazardous recalled
products. It is important that the CPSC continue to vigorously enforce
the prohibition on the sale of recalled products, pursuant to the
Consumer Product Safety Improvement Act of 2008. In the wake of the
recall of Fisher Price Rock `n Play, we continue to see too many of
these products sold on secondary online marketplaces.
Question 22. Please provide a list of all Internet platforms (i.e.,
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established
relationships with. For each platform, please describe:
When and how that relationship was established.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
CPSC has relationships with a number of platforms, some of them
for well over a decade including:
eBay
Overstock.com
Alibaba
Craigslist
Facebook and Facebook Marketplace
Oodle
Shopgoodwill
Amazon
Letgo
Offer Up
Any special tools the platform has provided to the CPSC to
help monitor the illegal sale of recalled products on the
platform.
CPSC staff has provided the Commissioners with the following
response to this question:
No special tools, however we have established CPSC
relationships and ongoing discussions.
Any special tools the platform has provided to the CPSC to
report the illegal sale of recalled products on the platform.
CPSC staff has provided the Commissioners with the following
response to this question:
No special tools, however we have established CPSC
relationships and ongoing discussions.
Question 23. What more could Internet platforms do to eliminate the
illegal sale of recalled products on their platforms?
Answer. I believe that Internet platforms could better utilize
existing technology and implement policies and procedures to help
prevent consumers from purchasing recalled products. There are likely
technologies companies are using to attract customers to purchase their
products that could also be deployed for the recall of products.
Question 24. Do you think platforms that facilitate the sale of new
and used products should have clear policies expressly prohibiting the
sale of recalled products in the United States?
Answer. Yes.
Question 25. Do you think users should be able to specifically flag
the sale of recalled products?
Answer. Yes.
Question 26. What kind of obligation do you think these companies
have or should have in making sure recalled products are not illegally
sold on their platforms?
Answer. I believe that companies have a serious and ongoing
obligation to ensure that recalled products are not available for sale
on their platforms.
Information Campaigns vs. Recalls
The CPSC seems to increasingly likely to agree to settlements with
companies that exclude the word ``recall''--like its recent settlement
with Britax jogging strollers in which the company was ``pleased to
announce'' a resolution that didn't include a recall or formal
correction plan.
Consumers lose out on important legal protections when recalls
aren't called what they should be--``recalls.'' For example, they may
be more susceptible to purchasing second-hand products that haven't
been repaired.
Question 27. What evidence do you have that the Britax jogging
stroller information campaign has adequately addressed the hazard? What
percentage of the strollers have been removed from use or repaired with
a fix that actually works?
Answer. I have no evidence that this campaign has been effective
and believe to date it has been the failure we predicted it would be.
In terms of specifics on the number of units removed or repaired, I
cannot comment on this matter as part of a published public hearing
record, but CPSC staff is available to discuss this issue with you in a
different setting.
Question 28. How does the Consumer Product Safety Improvement Act
(``CPSIA'') protect consumers from the sale of products that are
subject to ``information campaigns''?
Answer. The CPSIA made the sale of a product subject to a voluntary
corrective action or mandatory recall ordered by the Commission a
prohibited act under Section 19 of the Consumer Product Safety Act,
which can subject a violator to civil or criminal penalties. See 15
U.S.C. Sec. Sec. 2068-70. It is unclear what enforcement authorities,
if any, would apply to a product subject to an ``information
campaign.''
Question 29. So, without an official recall, consumers who buy
these strollers second-hand will have no legal remedy against the
seller for being sold the product without being advised of the
information campaign or for being sold the product without the ``free
modified thru-bolt or free modified quick release'' incentive for
consumers who participate in the information campaign. Is that correct?
Answer. Please see the attached dissenting opinions that I issued
with Commissioner Adler in this matter expressing our concerns with the
Consent Agreement and subsequent ``Addendum to the Consent Agreement.''
Question 30. Why is it so problematic that the CPSC's settlement
with Britax is not characterized as a ``recall''?
Answer. It is problematic for a number of reasons, please see the
attached dissenting opinions that I issued with Commissioner Adler in
this matter expressing our concerns with the Consent Agreement and
subsequent ``Addendum to the Consent Agreement.''
Recall Effectiveness of IKEA Dressers
The CPSC is in the midst of overseeing the IKEA dresser recall that
currently involves 17 million dressers. We now know of at least 9
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds
and removal of the dressers from use--has been hovering at about 1
percent and we know that at least one death occurred after the recall
was announced, with no reported knowledge by the parents of the recall.
Question 31. What steps should the CPSC take to make this recall
more effective to prevent other children from being injured or killed
from these unstable dressers?
Answer. The CPSC should ask IKEA to dedicate the same resources it
uses to sell these products to also recall them.
Question 32. The IKEA furniture recall involves at least 17 million
dressers. What percentage of those recalled dressers are out of
people's homes?
Answer. I cannot comment on this matter as part of a published
public hearing record, but CPSC staff is available to discuss this
issue with you in a different setting.
Question 33. Have you met with IKEA?
Answer. Yes.
When you met with them, how did you discuss holding IKEA
accountable for this recall?
Answer. I cannot comment on this matter as part of a published
public hearing record, but I am available to discuss this issue with
you in a different setting.
Question 34. What have you done and what are you committed to doing
to decreasing the numerous amount of deadly dressers still in people's
homes?
Answer. I am committed to doing everything within the agency's
legal authority to ensure that consumers know about this deadly hazard.
As warranted, the CPSC must aggressively pursue robust, consumer-
friendly recalls for the dangerously unstable furniture already on the
market. In addition, the Commission should continue its rulemaking
process to promulgate a mandatory safety standard to address this
hazard.
Update on Crumb Rubber Study
It has now been more than three years since the CPSC, in
coordination with the EPA and CDC, first announced it would be studying
crumb rubber.
Question 35. When is this study going to be complete?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
The Synthetic Turf Exposure Characterization data collection
(ATSDR) is still ongoing; the CPSC's Playground Use Survey is
completed, and a final contractor's report [was] due to staff
by July 26, 2019. Any CPSC Risk Assessment studies regarding
recycled tire rubber in playground surfacing will consider the
findings of the Tire Crumb Characterization and the Synthetic
Turf Exposure Characterization. CPSC staff anticipates a Risk
Assessment for playground surfacing could be available about 12
months after we receive the Synthetic Turf Exposure
Characterization Report.
Question 36. What is the delay?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
CPSC staff does not agree that there is a delay. The initial
[Federal Research Action Plan (FRAP)] announcement noted that
the schedule was ambitious. The deliverable described in the
February 2016 FRAP announcement was, ``By the end of 2016, the
agencies anticipate releasing a draft status report that
describes the preliminary findings and conclusions of the
research through that point in time.'' A draft status report
was published at the end of 2016; that milestone was met.
However, because there was still work to be done to answer
these questions, the partner agencies continued with their
research in pursuit of quality science and in compliance with
time-consuming administrative steps required by law (e.g.,
Paperwork Reduction Act).
The CPSC's Playground Use Survey is completed, and a final
contractor's report [was] due to staff by July 26. This
contract is on schedule. The survey is the only task
specifically assigned to CPSC in the FRAP announcement. When
the FRAP partner agencies' data are available, CPSC staff will
act as quickly as possible to apply those data in risk
assessment activities specific to playground surfaces.
I believe that clearly there has been a delay. I do not see the
same commitment in the government to get answers to these questions as
I did during the prior administration.
Question 37. Do you believe the EPA and partner agencies are still
fully completed to this research? Have you talked to them about it?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
Work at EPA and ATSDR has been continuous since 2016 (see
response to Question 33). CPSC staff keeps apprised of the
activities at EPA and ATSDR. EPA is planning to brief CPSC
senior management on its Tire Crumb Characterization Report.
ATSDR's Synthetic Turf Exposure Characterization data
collection is still ongoing.
Section 6(b) of the Consumer Product Safety Act
The CPSC, alone among safety agencies, has a provision--Section
6(b) of the Consumer Product Safety Act--that typically prevents the
CPSC from sharing product specific safety information with consumers
without express permission from the company in question.
It is often felt that this delays consumers from getting vital
information they could use to keep their families safe. For example,
the Fisher-Price Rock `n Play recall was preceded by a vague warning
that did not identify the product a year before the recall.
However, the CPSC seems to be going out of its way to make it
difficult for consumer advocates and researchers to evaluate risk to
consumers and even whether companies are doing their job in executing
effective recalls.
For example, Nancy Cowles of Kids in Danger says she has submitted
Freedom of Information Act requests documents to shed light on the
recall effectiveness of Ikea's recall on unstable dressers.\8\ However,
those documents are redacted completely, down to the number of Facebook
posts a company will share about a recall. As she is quoted saying in
article: ``I could just go count that. How could that be protected?''
---------------------------------------------------------------------------
\8\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis
Question 38. Does it make sense that the CPSC is redacting
information about public Facebook posts about recalls? Do you think it
is appropriate that Section 6(b) really limits such information
disclosures?
Answer. The purpose of the Freedom of Information Act (FOIA) is to
hold the agency accountable to the public, with a strong presumption of
openness and transparency. To be clear, the FOIA authorizes us to
balance the public right to information with our need to protect
certain sensitive information, including requiring the agency to
withhold information if its disclosure is otherwise prohibited by law.
However, I strongly believe that any redactions the agency makes must
be narrowly tailored and consistent with the law. I do not think that
it is appropriate for the agency to withhold information from the
public under the auspices of Section 6(b), confidential business
information or any other FOIA exemption unless those provisions
actually apply to the information in question.
Question 39. Will you commit to making sure the CPSC does not
restrict the disclosure of information more than is required by
statute?
Answer. I am committed to following the law. I believe that
additional Congressional oversight is needed to prevent the agency from
inappropriately withholding information from the public.
Question 40. As long as Section 6(b) is on the books will you
commit to support the agency restricting disclosure of information
about a product or company to no greater an extent than required by
statute?
Answer. I am committed to following the law. I believe that
additional Congressional oversight is needed to prevent the agency from
inappropriately withholding information from the public.
Question 41. What Internet platforms does CPSC have established
relationships with?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
CPSC has relationships with a number of platforms, some of them
for well over a decade including:
eBay
Overstock.com
Alibaba
Craigslist
Facebook and Facebook Marketplace
Oodle
Shopgoodwill
Amazon
Letgo
Offer Up
Question 42. What special tools do CPSC staff have to review and
flag violative products sold on the Internet?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
No special tools, however we have established CPSC
relationships and ongoing discussions.
Internet of Things
Acting Chair Buerkle recently said in reply to a letter in reply to
consumer privacy organizations, ``CPSC's authority will not generally
extend to situations solely related to consumer privacy or data
security, that do not pose a risk of physical injury or illness, or
property damage.''
On the contrary, the CPSC should be doing more to recognize that
consumer privacy and data security pose real and urgent threats to the
well-being and safety of consumers. Insecure products can be hacked to
spy on children, trip up smoke detectors, and more.
Question 43. How can the CPSC leverage its expertise in keeping
dangerous products off of shelves, to also keep insecure products that
threaten people's safety out of people's homes?
Answer. The CPSC can investigate and research connected products
and collaborate with industry and other agencies to ensure that
vulnerabilities are addressed in a timely manner. My staff and I wrote
a paper outlining a safety framework for IoT products.\9\
---------------------------------------------------------------------------
\9\ For more specific steps to take, see our paper outlining a
framework for safety across the Internet of Things at: https://
cpsc.gov/s3fs-public/A_Framework_for_Safety_Across_the_Inter
net_of_Things_1-31-2019_0.pdf?1KJ.t4Tn04v9OtEBr2s0wyLAP.KsuuQ3.
Question 44. What is the best way to protect vulnerable consumers
as new products enter the market without standards--such as connected
products? Is enough money allocated to compliance and enforcement
divisions?
Answer. It is vitally important for the CPSC to actively monitor
and evaluate in-coming consumer reports of harm to identify and respond
to emerging hazards. The agency needs more resources to hire subject
matter experts and the necessary support staff to identify and respond
to emerging hazards. My staff and I wrote a paper outlining a safety
framework for IoT products.\10\
---------------------------------------------------------------------------
\10\ For more specific steps to take, see our paper outlining a
framework for safety across the Internet of Things at: https://
cpsc.gov/s3fs-public/A_Framework_for_Safety_Across_the_Inter
net_of_Things_1-31-2019_0.pdf?1KJ.t4Tn04v9OtEBr2s0wyLAP.KsuuQ3.
---------------------------------------------------------------------------
Kids in Danger Report: Social Media Practices
Kids In Danger (``KID''), a non-profit organization dedicated to
protecting children by fighting for product safety, released its latest
report in March.\11\ It found that both the CPSC and manufacturers
posted recalls on Facebook at lower rates in 2018 compared to 2017.
---------------------------------------------------------------------------
\11\ https://kidsindanger.org/2019/03/kid-releases-annual-report-
on-recalled-childrens-products/
---------------------------------------------------------------------------
CPSC posted only 45 percent of 2018 children's product recalls on
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
In addition, of the 48 manufacturers that issued recalls in 2018,
only 31 percent were announced on the company's Facebook page--down
from 51 percent in 2017.
Question 45. Why isn't the CPSC using all tools at its disposal to
make recalls are made known?
Answer. I believe that the CPSC should use social media tools as
effectively and as often as possible to communicate with the public.
Generally, the agency of late has stopped using many of the tools it
has to protect consumers. This is deeply disturbing.
Question 46. Why isn't the CPSC requiring manufacturers to issue
notices on manufacturers' Facebook pages?
Answer. I believe that we should be doing so, but if a firm
disagrees, the agency cannot compel the firm to do if it is a voluntary
recall. The agency needs additional authorities to make recalls
stronger and more effective.
Why isn't that a standard part of the corrective action plan?
Answer. It should be, but if a firm disagrees, the agency cannot
compel the firm to do if it is a voluntary recall.
Can a product that meets an existing standard be defective?
We are hearing increasingly often from companies that just because
their product is meeting a safety standard, their product can't be
defective and can't be subject to a recall. For example, Britax, the
maker of the B.O.B. jogging stroller argued that a product defect
required the violation of a safety standard. And the B.O.B. had passed
a test that required the removal front wheel to stay on after a strong
pull.
IKEA has also said the same thing about the Hemnes 8-drawer dresser
that killed a 2 year-old.
Question 47. If a product meets an existing standard but is killing
or seriously injuries children and babies, wouldn't you agree the
product should be recalled?
Answer. Of course.
Question 48. Would you agree that the CPSC has the authority to
recall a product if it believes it poses an unreasonable risk of
serious injury or contains a defect that presents a substantial product
hazard--even if the product meets all existing standards?
Answer. Yes.
Question 49. Can a product be recalled if it meets an existing
standard?
Answer. Yes.
Question 50. Wouldn't you agree that if deaths and injuries are
occurring, the products may still be defective and a recall may be in
order?
Answer. Yes.
Question 51. What are some examples of companies that have
voluntarily recalled products that didn't necessarily violate a
specific product standard?
Answer. Yes, for example recalls have happened with cribs,
bassinets and strollers.
Question 52. What role do you have in encouraging a manufacturer to
agree to a voluntary recall?
Answer. Very few voluntary recalls are voted on by the Commission.
Most voluntary recalls are negotiated and agreed to by CPSC staff
pursuant to the Commission's delegation of authority to the staff.
Enforcement of the Child Nicotine Poisoning Prevention Act
I am very concerned about the CPSC's enforcement of the Child
Nicotine Poisoning Prevention Act, which became law three years ago and
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers.
The agency has moved slowly to enforce this law, and public action has
primarily consisted of sending notices to industry about the
requirements.
Question 53. Is the agency doing any market surveillance on this
issue to identify non-compliant products? Have you done any surveys of
industry?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
Yes, CPSC regularly performs market surveillance including
collecting samples at retail and on-line to identify non-
compliant product.
Question 54. Have you taken any enforcement action or enforced
civil penalties for failure to comply with the law? If not, why not?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
CPSC has notified firms and sought corrective action when non-
compliant products are identified.
Question 55. Are there authorities the agency is not using that it
should be to address products that pose a child health hazard like
liquid nicotine?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
No.
Keeping Fellow Commissioners in the Dark
I am troubled by reporting that Acting Chairman Buerkle withheld
information from fellow Commissioners about defect investigations and
incident data--even when briefings have been requested. All
commissioners must have fair access to the information they need in
order to make informed and educated decisions--especially when voting
on matters.
For example, The Washington Post has already publicly reported on
how Democratic Commissioners felt in the dark about the Britax jogging
stroller investigation and frustrated by Acting Chairman Buerkle's
control of the flow of information.
Question 56. Did you feel like you were adequately informed and
briefed prior to your vote agreeing on the Britax settlement, and in
retrospect?
Answer. I voted against the Britax Consent Agreement. In general, I
have had very serious and ongoing concerns the past few years regarding
the extremely restricted flow of information to the Commission. It is a
major issue.
Question 57. What do you need to do your job better?
Answer. It is critical that as a Commissioner I have timely access
to all pertinent information to assist me in making agency decisions.
Question 58. Do you feel like you have access to CPSC staff
expertise necessary to faithfully perform your job duties?
Answer. Not always and definitely not in a timely and unmonitored
setting.
Question 59. Are your requests for briefings from CPSC staff being
approved efficiently?
Answer. No. On a number of occasions, we experienced an unnecessary
and lengthy delay in getting a requested briefing.
Please list all briefing requests that have been denied or
postponed to a later date.
Answer. I would like to have a fuller discussion with you on this
topic at your convenience.
CPSC FTE Vacancies
As so many of you have noted, the CPSC does a lot on a tiny budget.
However, I'm concerned by a growing number of vacancies at the CPSC and
how this might be affecting the agency's ability to fulfill its
important mission.
Question 60. How many FTEs are vacant?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
The current (as of July 13, 2019) FTE level at CPSC is 544.3
(just over our authorized level of 539 for FY19). We have
supplemented our permanent staff with temporary appointments
while we are actively recruiting for 40 positions.
We requested additional information from CPSC staff and were
provided the following, which clarifies CPSC staff's original answer:
The 544.3 [FTE] figure includes interns. We have 45 Pathways
interns onboard, so the total not including interns would be
499.3 [FTE].
Question 61. How do these vacancies affect the CPSC's ability to
carry out its critical safety mission?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
Depending on the exact position and if we have back-up
expertise available to support the duties for a vacant
position, it is sometimes difficult to continue to perform
certain functions when a position is vacant. In the field and
at the ports, we have staff available throughout the country
who can travel and provide support while a position is vacant.
On a case-by-case basis, we may also temporarily detail an
employee, reassign duties to another employee, contract for
services, or delay an activity until a position is filled.
Question 62. Why are these vacant? When do you anticipate they will
be filled?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
Many of our positions are in hard-to-recruit, highly technical
positions, such as Mathematical Statistician, Economist, and
Information Technology Specialists. We are actively recruiting
using all of our available recruiting methods and tools for all
of our career vacant positions. We anticipate filling positions
as soon as highly qualified selectees are identified. Our
average time-to-recruit is just under 83 days.
Beyond CPSC staff's response, I believe that the number of
vacancies is historically high and of significant concern.
Question 63. Is there anything preventing these FTEs from being
filled?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
There is nothing preventing the recruitment for our vacant
positions.
Question 64. Can you comment on why there are so many vacancies?
Answer. I do not know why, but again, I believe that the number of
vacancies is historically high and of significant concern.
Question 65. Can you describe morale at the agency by CPSC staff?
How can this be addressed?
Answer. The 2018 Federal Employee Viewpoint Survey shows that CPSC
staff have reported significant decreases in employee satisfaction in
many areas since 2017.\12\ These areas include senior leadership,
feelings of personal empowerment and overall job satisfaction. The
agency's most negatively rated items were satisfaction with upward
advancement opportunities, the availability of merit-based pay raises
and promotions and the generation of high levels of motivation and
commitment in the workforce by senior leaders.
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\12\ A summary of the survey results is available here: https://
www.cpsc.gov/s3fs-public/
2018FederalEmployeeViewpointSurveyResults.pdf?oWipa9Y4yQVZDCJ.F4xvdpU4BC
uxRgbP.
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In terms of how morale at the CPSC can be addressed, I would like
to have a fuller discussion with you on this topic at your convenience.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Hon. Elliot F. Kaye
According to the Centers for Disease Control and Prevention, there
are over 400 deaths and 20,000 emergency room visits due to carbon
monoxide poisoning each year. I introduced a bill with Senator Hoeven
to encourage states to require carbon monoxide detection devices in
homes and schools, and to create a grant program to help states educate
people about these risks.
Question 1. How can these programs be an effective tool in reducing
the number of deaths and injuries due to carbon monoxide poisoning?
Answer. Any injury prevention effort should be based on peer-
reviewed scientific evidence and have an evaluation of outcomes built
into the effort from the beginning. Also, efforts should consider
targeting the most high-risk communities.
Studies have estimated that flammable liquids igniting within their
containers cause about 160,000 fires and 4,000 injuries each year. I
introduced the Portable Fuel Container Safety Act with Senator Moran to
require these containers to have flame arrestors to prevent these
accidents.
Question 2. In your view, what should be done to help prevent these
kinds of accidents?
Answer. Flame arrestors are a good solution to prevent further
injuries.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Elliot F. Kaye
I appreciate that on March 8, CPSC clarified in a letter for
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'')
requires both child resistant packaging and flow restrictors for liquid
nicotine containers. Both of these product safety requirements are
important for preventing unintentional child ingestion of liquid
nicotine. CPSC had previously advised industry about the law's
requirements for child resistant packaging, but had not yet also
communicated the law's requirement for flow restrictors, despite the
reference to that requirement in the law's statutory language. However,
I am concerned that current ambiguity about the interaction of this
requirement with U.S. Food and Drug Administration (``FDA'') policy
could undermine the successful enforcement of the CNPPA.
As part of its process to assert its jurisdiction over electronic
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products
introduced after the August 8, 2016, effective date immediately subject
to the requirement for FDA authorization through the Premarket Tobacco
Product Application process. This includes both new products and
modified versions of previously marketed products. It is therefore
unclear whether changes to liquid nicotine containers to comply with
the flow restrictor requirements could potentially result in FDA
considering the product to be a new product, requiring Premarket
Tobacco Product Application authorization. While Congress clearly
provided this regulatory authority to CPSC before the FDA Deeming Rule,
I am concerned that ambiguity on the overlap of authority between the
agencies could lead to industry noncompliance with the CNPPA's flow
restrictor requirement, putting children at risk. In order to address
that possibility, I would appreciate your responses to the following
questions:
Question 1. Has the CPSC taken any enforcement action for liquid
nicotine containers for noncompliance with either the child resistant
packaging or flow restrictor requirements? If so, please provide
details on the extent of those enforcement actions.
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
CPSC has notified firms and sought corrective action when non-
compliant products are identified.
Question 2. Have the CPSC commissioners or staff communicated with
FDA about the potential interaction of the CNPPA flow restrictor
requirement and the FDA Deeming Rule?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
Yes, CPSC has communicated with FDA to discuss each agency's
respective requirements.
Question 3. Do the CPSC and FDA have plans to take any action to
provide clarity that ensures manufacturers follow the flow restrictor
requirements in CNPPA?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
CPSC has issued guidance on the restricted flow requirements.
(https://www.cpsc.gov/s3fs-public/
NoticeofRestrictedFlowTP.March82019.pdf)
Children's Cosmetics:
A recent study by Nationwide Children's Hospital and Ohio State
University examined injuries from cosmetics and other personal care
product--including nail care, hair care, skin care, and fragrance
products--to children under the age of 5 years old.
The authors used the CPSC's National Electronic Injury Surveillance
System to estimate that, nationwide, about 64,000 children had visited
hospital emergency departments for these injuries between 2002 and
2016.
Each year, about 4300 children are treated in emergency departments
for these injuries.
From this analysis, we know that these injuries happen at home and
that ingestion is the main route of exposure. But chemical burns and
eye injuries from children spraying fragrance into their faces are also
notable types of injury.
In light of this study, I have a few questions:
Question 1. What can the CPSC do to protect young children from
harm caused by personal care products?
Answer. CPSC staff has provided the Commissioners with the
following response to this question:
The definition of ``consumer product'' in the Consumer Product
Safety Act (CPSA) excludes ``cosmetics'' as that term is
defined in the Federal Food Drug and Cosmetic Act. In general,
cosmetics are products that are applied to the body to cleanse
or beautify. The personal care products specified in the
question (nail care, hair care, skin care, and fragrance
products) are likely to be cosmetics and fall under FDA's
authority. An FAQ page on FDA's website provides some general
information: https://www.fda.gov/cosmetics/resources-consumers-
cosmetics/cosmetics-safety-qa-personal-care-products. The fact
that a product is intended for children does not keep it from
being a cosmetic. For example, FDA considers ``novelty makeup''
such as face paints for children to be cosmetics: https://
www.fda.gov/cosmetics/cosmetic-products/novelty-makeup.
CPSC does have authority over one aspect of cosmetics. Under
the Poison Prevention Packaging Act (PPPA), CPSC can require
special packaging (sometimes called child resistant packaging)
for household substances, including cosmetics, if such
packaging is necessary to protect children from serious injury
or illness resulting from handling, using or ingesting the
substance.
Question 2. Could product safety standards be developed that would
reduce the risk of injury to children from personal care products?
Answer. Yes, but it would depend on the product and the CPSC's
jurisdiction.
Question 3. Do you think believe warning letters are effective at
reducing injury? Why or why not?
Answer. I believe that the agency should use all of its tools to
address hazards, including corrective action plans, standards,
interagency cooperation, public health communications and academic
research and grants.
______
Response to Written Questions Submitted by Hon. Tammy Duckworth to
Hon. Elliot F. Kaye
While much progress was made on sudden unexplained infant death
(``SUID'') in the 1990s, little progress has been made in reducing SUID
over the past decade. In some high-risk groups, rates are going in the
wrong direction. The U.S. Centers for Disease Control and Prevention
(``CDC'') estimate that in 2017 there were about 3,600 SUID cases in
the U.S. Many products--everything from crib bumpers, nests or pillow--
like products and sleep positioners--are made and sold to help infants
sleep. The FDA has warned against sleep positioners and safe sleep
advocates warn against the use of crib bumper pads. Many of these
products meet no standard--mandatory or voluntary. The CPSC is in a
unique position to help address the public health problem of SUID
through its jurisdiction over infant products and opportunities to
communicate with families, caregivers and health care providers.
Question 1. What will you do, beyond education and awareness, to
push CPSC to use its authority to increase safe sleep among high-risk
families and to reduce the hazard posed by certain infant sleep
products such as crib bumpers and other untested products?
Answer. I have and will continue to support efforts by the
Commission to use its rulemaking authority to propose mandatory safety
standards to address hazards posed by products that create unsafe sleep
environments for infants.
Question 2. The CPSC is currently working with the American Society
for Testing and Materials (``ASTM'') and the Juvenile Products
Manufacturing Association (``JPMA'') on a standard for crib bumper
pads, despite the broad view that these products are unnecessary and
unsafe. However, rather than looking at the evidence that bumpers
reduce the flow of air in a crib, CPSC is working on testing the
firmness of bumpers. Are you at all worried that this will not address
the hazard pattern and put CPSC's stamp of approval on a dangerous
product?
Answer. My office has produced an extensive analysis of padded crib
bumpers.\13\ In addition, I issued a statement along with Commissioners
Adler, Robinson and Mohorovic recommending that caregivers and parents
not use crib bumpers.\14\ As a result of many proposals that I have
offered during the past few years, the Commission has given direction
to CPSC staff to evaluate and address possible requirements for facial
conformity and airflow characteristics.\15\ A Notice of Proposed
Rulemaking (NPR) on Crib Bumpers is due to the Commission for its
consideration this Fiscal Year. I remain hopeful that the proposed NPR
will address the issue of airflow as well as firmness.
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\13\ My policy paper on the hazards of padded crib bumpers is
available here: https://cpsc.gov/s3fs-public/
CBStatement.pdf?dhFXWQNHUqQ2yV4xuY654JrJ3K0Towc.
\14\ The joint statement from Commissioners Adler, Robinson,
Mohorovic and myself recommending against the use of padded crib
bumpers is available here: https://cpsc.gov/s3fs-public/
Joint%20Statement%20on%20Padded%20Crib%20Bumpers%20FINAL%2011.3.16.pdf.
\15\ A copy of my amendment to the Fiscal Year 2017 Operating Plan
is available here: https://www.cpsc.gov/s3fs-public/
MinutesCommissionMeetingFiscal2017OperationsPlan.pdf.
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