Budget Woes

Earlier this week, President Obama unveiled his 3.8 trillion dollar budget to both Congress and the nation. The budget included the Consumer Product Safety Commission’s request for funds from Congress. As with many government agencies, the CPSC Chair controls the process through which the annual budget is prepared, both by establishing the agency’s goals and priorities, and by exercising authority over agency personnel to direct budget’s preparation accordingly. In the case of the CPSC, the product that comes before the Commission is a long and detailed document specifying the amount of funding sought for the fiscal year, as well as precisely how the money will be allocated among the agency’s strategic goals. Unfortunately, individual commissioners do not have a meaningful opportunity to influence the agency’s budget, and are instead called upon to approve or disapprove the budget as presented by the Chair. While my vote was not intended to oppose the budget, I was unable to endorse it, because I disagree with many of the funding choices it contains.

As a Commissioner, I believe it is my responsibility to both advance the safety mission of the agency and to be a good steward of taxpayer dollars. As I have illustrated countless times, my main concerns with this agency is the wastefulness of the enormous new investment in the Information Technology (IT) program. After already spending over 29 million dollars to “upgrade and improve” its IT systems, the Commission now seeks an additional $7.44 million to continue the work, and neither figure includes the millions of additional dollars in Commission staff time. The results so far are not encouraging. Take for example the public database, which as designed by the Commission, has resulted in a product with no chance of being useful to consumers. Its public interface is so primitive, cumbersome and limited in the scope of information it contains, that a consumer seeking information on the safety of a product would be far better served by one of the many private sector clearinghouses for consumer product information, such as Amazon.com, then by our publically funded portal. I believe that the staff time and resources dedicated to the Commission’s IT program over the last several years and projected into the future would be better focused on the agency’s core safety mission or on a more efficient and effective approach to upgrading its IT systems.

At a time when every agency is being asked to conserve resources to reduce the national debt and relieve taxpayer burden, the Commission must do its part by performing its safety mission in the most efficient and cost effective manner possible. Instead, the Commission is requesting an additional budget increase on top of the last four years of substantial budget increases, and intends to spend the money on priorities that will not enhance consumer safety.

CPSC Registry Launch Could Hurt Those It Was Meant To Help

Under administrative authority and without agreement from the Commission, the Consumer Product Safety Commission has implemented procedures under which small batch manufactures can register to utilize an alternative testing requirement or exemption from third party testing and certification. In doing so, the agency has inappropriately made a unilateral policy decision to publish the business name, city and state of any small batch registrant who cannot prove that the publication would disclose confidential business information.

Congress, in an effort to prevent small business closures and the accompanying financial hardship to business owners and their employees who would be affected by CPSC’s third-party testing requirement, directed the CPSC to provide small batch manufactures with either alternative testing requirements or a complete exemption from third party testing and certification.

In order to register as a small batch manufacturer under the law, a business must make no more than $1 million in total gross revenues from the sale of all consumer products, and must make no more than 7,500 units of the registered product. The revenue and production data of businesses identified as having registered would therefore also be made public. Given the nature of these small businesses, it is unrealistic to expect their owners to possess the legal knowledge necessary to provide evidence and argument establishing the confidentiality of their revenue and production data.

The administrative decision by the CPSC to publish the business information of small batch manufactures on www.SaferProducts.gov may end up hurting many of the organizations and manufacturers that Congress intended to help. Such companies could be subject to potential negative advertising from larger competitors claiming that the failure to third-party test makes the products less reliably safe. In addition, the same consumer groups who have long pushed for third-party testing may also wish to more widely disseminate the names of manufacturers whose products are not third-party tested, to their competitive disadvantage. Smaller companies can also have greater difficulty placing their products with retailers; so exposing a business’ low revenue threshold could reduce its sales opportunities.

Finally, a small company with a successful product may not wish potential competitors to know that its size makes it an easy target for lower cost competition or a hostile takeover. Companies’ aware of these issues could well choose not to register in order to avoid the competitive harm that may result. It is impossible to imagine that Congress meant to imperil small batch manufacturers who take advantage of this exemption.

Stay No More

As many of you are aware, on December 31, 2011, the CPSC will lift its stay of enforcement on the requirement that most children’s products be third-party tested and certified for compliance with lead, phthalates and/or ASTM F 963 toy safety standards.

As a result, over three years after passage of the CPSIA, children’s product manufacturers and importers will begin to bear the greatest burden imposed by the Act. As I have argued in the past, it has become increasingly clear to most that third-party testing will impose enormous costs without a proportionate justifying benefit, and that the CPSC’s exercise of new enforcement authority and cooperation with the U.S. Customs and Border Patrol (CBP) is a better and more cost-effective approach to ensuring the safety of children’s products sold in the United States.

I want to share with you a recent article I wrote for the BNA Toxics Law Reporter entitled, “The Best Approach to Ensuring the Safety of Children’s Products Sold in the United States.” I hope you find it both interesting and insightful.

Los Angeles Port Tour

Last week, I had the privilege of visiting our country's largest port in Los Angeles to see first-hand some of the new and exciting technologies that our ports are using to ensure our safety. It is nice to know that the CPSC is benefiting from the port's use of cutting edge technology to protect American consumers from unsafe products.

During my visit to Los Angeles, I was able to take some photos that show much of the work that is being conducting at our ports on a daily basis. I hope you enjoy them.

CPSC Flushes Safety Down The Pool Drain

In a remarkable reversal, a 3-2 majority of the Consumer Product Safety Commission voted today to reinterpret the phrase “unblockable drain” under the Virginia Graeme Baker Pool and Spa Safety Act (VGB Act) to no longer permit the use of unblockable drain covers to protect against entrapment in public pools using single drain systems. As a result, cash strapped schools, municipalities, community pool organizations and others will be required to install an expensive and less protective back-up system.

The Commission’s original interpretation was based on the recommendation by its career technical experts that a $40 unblockable drain cover provides better protection against entrapment and drowning than does a $1000 – the least expensive and therefore most popular – back-up device, a safety vacuum release system (SVRS). According to Commission staff, unblockable drain covers prevent an entrapment before it happens, whereas an SVRS kicks in 4 seconds after a drain is blocked. As a result, a child playing in a pool without an unblockable drain cover can be eviscerated, or inextricably trapped by hair or a limb and drown before the SVRS turns off the pump. Even the SVRS manufacturer acknowledges this limitation in its product.

Commission staff has not changed its position that unblockable drain covers are safer than an SVRS, and did not recommend any change to the Commission’s interpretation. Since the Commission’s original interpretation, there have been no entrapment incidents that raise any concerns about the effectiveness of unblockable drain covers. In addition, despite receiving extensive public comment on the question before issuing its original interpretation, the Commission majority refused to hold any public hearing or solicit any public input on its reinterpretation.

The sole reason for the Commission’s decision is that a single Commissioner – Bob Adler – has changed his “legal interpretation” of the VGB Act. He claims to have done so based on two meetings with Debbie Wasserman Schultz, who sponsored the legislation. But the legislation was co-written by Vac-Alert Industries President Paul Pennington, whose company manufacturers an SVRS and will profit richly from the new mandate to use a back-up system.

Vac-Alert hits the jackpot, but what of the losses suffered by the public? For those pools that can afford it, thousands of dollars in unnecessary equipment will be purchased at taxpayer expense. But for those localities that don’t have the resources, pools will be opened late or closed permanently, potentially adding to nationwide drowning statistics by reducing the availability of swimming lessons. Finally, families will again be exposed to the risk of drain entrapment drowning and evisceration, which in the cruelest of ironies, was the cause of death of Virginia Graeme Baker, after whom the VGB Act was named.

Drain on the Economy

On September 28th, the CPSC is scheduled to revoke its previous interpretation of “unblockable drain” under the Virginia Graeme Baker Pool and Spa Safety Act (VGB), resulting in costly new requirements for community pools and spas throughout the country. Earlier this week I shared with you just a few of the letters I have received from businesses and stakeholders who will negatively be affected by this change---all with no safety benefit to consumers. To date, we continue to receive more letters and more information regarding the revocation. I remain hopeful that the Majority will listen to these comments and allow facts and reason to guide their decision.

Recently, Pool & Spa News published an article entitled "New Drain Ruling May be Imposed" which provides the industry’s perspective on the issue. Dick Nichols, president of Genie Pool and Spa Service in San Jose, Calif, said in an interview that he doesn't "know what it is they're trying to accomplish, but this whole thing has been the most ludicrous waste of people's money I think i've ever seen in my 35 years in the business." Well Mr. Nichols, I couldn't agree more.

Spreading The Word

Here are two unsolicited letters we received opposing the recovation of our previous interpretive rule on pool and spa drains. These letters make it clear that the CPSC would have received relevant information on this issue if we simply had placed the revocation up for public comment.

In particular, the unblockable drain cover manufacturer and the CPS both talk about new products that ensure the drain cannot be removed through the use of more and stronger fasteners and sturdier materials. To illustrate this point further, the removability of the covers was a principal argument put forth by consumer groups and repeated by one Commissioner in opposition to the original interpretation.

Had we put the issue up for public comment, we would have learned some of the valuable information provided by Ms. Snow, as well as NSPF’s important points, in time to take them into account.

NSPF Recommendation to CPSC - Revocation of Unblockable Pool Drains

Bonnie Snow Letter to CPSC

Troy,

You know that we designed the BeeSafe System to be the best, safest solution for all of the entrapment hazards in swimming pools. We even attempt to eliminate the problem of covers coming off by using lock tite on the stainless steel screws to eliminate vibration loosening the screws of the lid. The CPSC panel only saw our product and while not unanimous their vote favored allowing our product as a stand alone solution. If the issue now is the possibility of the cover coming off then I have a better solution than adding a back-up. This would be to use the Mr. Sticky Industrial Adhesive (the adhesive that makes our product a permanent installation for the body of the product) on the lid as well in the final step of our installation. I can send specifications for the product to justify this making our product free from the hazard of broken or missing covers in that it is designed for repair of submarines, used as a permanent strong bond on pvc, and that it has a long lifetime. We can get the adhesive to every customer who has purchased our product and have them secure the lid permanently before the time required in your new interpretation of unblockable. What we want and what is appropriate is to classify our BeeSafe Systems as equal to or better than the alternative solutions. What would it take and to whom do I need to contact to have our product considered as equal to or better than dual drains? The separation across our product is equal or better than the separation of dual drains. Dual drains could be blocked by two children attempting to race to see who can cover each of the drains, but BeeSafe cannot be blocked even if several children sit on it together. The tubes have the unique feature of emptying when covered and suction is broken faster than the detection of a back-up device. With this feature, our products are equal to or better than the back-up systems as well.

We have had several sales to customers who were very dissatisfied with a breaker system. One that took theirs out and replaced with the BeeSafe System told me that the breaker had to be turned off daily for maintenance, false triggered many times during the night which resulted in no chemical mixing, and then in the fall when the drain was completely clogged with leaves, the system failed to turn off the flow. It seems prudent to consider that entrapment isn't the only issue that CPSC should consider. If dependence on a breaker can and often does false trigger and leave a pool without adequate chemical mixing then other water borne disease will increase. It might be worthwhile to do some monitoring in some of the health districts to collect data on the number of bad samples taken with specific information on the type of VGB compliant product used. When I was working for the Utah County Health Department this was the reasoning for not wanting back up systems on the pools. Once they became popular we saw a dramatic increase in pool samples that had too high a bacterial count and detection of e-coli.

Our main reason for getting into this was to save lives. Our company is barely surviving but we had hopes of possibly breaking even or making a small profit with our second model that is now in testing. It is being molded by Custom Molded Products. They are also willing to help us with sales to the distributors. CMP is now concerned that there is no market for a product that costs more than a few dollars to produce. The customers who have been seeking an unblockable drain are those who have pools that cannot easily be remodeled with dual drains and that recognize the downfall of the secondary back-up systems. BeeSafe is more expensive, but a safer alternative and we lose our niche in the market if a back up is required.

Most of our sales have been to community pools, especially in Illinois, where they have no sump, or have aluminum lined pools, and also large pools that need the high flow rate that none of the smaller products have been able to reach. Many chose our system because they could not afford the expensive remodel that would be required for drain line as well as the additional modification of the drain for a dual system. The community pools are where most children learn to swim and with the problems of increased water borne diseases with the secondary devices we may lose many of these facilities. Some of the districts have based their decision on what unblockable product to use simply on the cost. Requiring them now to add a less than adequate back-up system will result in many of these facilities shutting down their pools. Please help us to get our information out to the right people and let us know the procedure for getting our product classified as "Equal to or Better Than" so we can continue to produce the best solution available in the pool industry. If necessary we would come with our products to demonstrate that our products should be classified this way as they are much more than just unblockable.

Bonnie
Bonnie Snow, Owner/CEOBeeSafe Systems