Flaw #3: DEFINITION OF "PUBLIC SAFETY ENTITIES"

We have already seen that the Commission established a definition for “consumers” that is so broad as to allow anyone to submit incident reports to the new database (rendering the category of “consumers” largely useless)---but let’s take a look at another category: PUBLIC SAFETY ENTITIES.

Given that the statute’s list of who may submit reports of harm denotes individuals likely to have firsthand knowledge of the incident, it makes sense that a “public safety entity” would include, for example, the fire fighter that put out the fire caused by a consumer product (direct knowledge of the incident). Or, it could include the city’s health department that inspected the county’s swimming pool and found a defect in its equipment (again, direct knowledge of the incident).

However, the Commission has construed “public safety entities” to mean any entities, public or private, that claim to have “a public safety purpose." The draft rule's definition states:

“…other public safety officials and professionals, including consumer advocates or individuals who work for nongovernmental organizations, consumer advocacy organizations, and trade associations, so long as they have a public safety purpose.”

Really? How can the definition of "PUBLIC safety entities" be construed to allow even PRIVATE advocacy groups that may also have financially-driven or politically driven agendas to submit incidents directly into the database? This is a far cry from the kind of submitters provided for in the statute, and a step that opens a Pandora’s box of inaccurate, misleading information.

Based on this definition, the Consumer’s Union (CU), a common example of a consumer advocacy organization, can submit incident reports. While the CU claims to have a public safety mission, their website also lists advocacy campaigns related to big government health care reform, expanded federal regulation of banks, allowing bankruptcy judges to write down home loans, and promoting energy legislation---campaigns that are quite biased and unrelated to risk-based science or consumer safety.

What about the “Pool Safety Council,” which was established by an individual who was president of a company selling anti-entrapment "safety" devices for pools? A number of advocacy organizations with public safety missions may also have a conflict of interest or self-serving motives when it comes to reporting product safety incidents. That is probably why Congress did not authorize them to submit reports of harm to the database.

In any event, a U.S. Government, taxpayer-funded, public database should not be a vehicle for advocacy groups or attorneys that wish to file complaints (which they may have received third-hand) in order to promote hidden agendas. This would make the database misleading or useless for consumers...

Stay tuned for more…

Flaw #2: DEFINITION OF "CONSUMERS"

Yesterday we established that the current draft of the public database rule would mistakenly allow anyone to submit a “report of harm.” But Congress specifically listed who could post incidents in the public database: consumers; local, State, or Federal government agencies; health care professionals; child service providers; and public safety entities---not just “anyone.” All of these categories have one thing in common – they are individuals who generally have firsthand information about the incident in question.

So how is “consumers” defined? One would assume “consumers” means (and is limited to) the individual who actually owns or uses the consumer product about which the “report of harm” is submitted—which the statutory context supports. It makes sense that a public database would contain legitimate, “consumer” incident reports—straight from the horse’s mouth.

Unfortunately, the Commission has stretched the definition of “consumers” to mean literally anyone! As the preamble to the rule states, “…the term ‘consumer’ is quite broad, and includes anyone who consumes or uses an economic good.” In other words, the term means anyone who consumes anything—you, me, or someone living in a completely different area code from the incident. This flawed definition opens the door to allowing people with no real knowledge of an incident or with ulterior agendas (competitors, advocacy groups, lawyers) to flood the database with unreliable reports and misuse or mislead the consumers we were intending to help.

Congress would not have bothered to include additional categories if it had meant for “consumers” to cover everyone. If Congress wanted anyone to post (accurately or not), it could have: 1) written the law to say that; 2) left out any list of who can submit, or; 3) provided a sixth category of “others.” But it didn’t. In point of fact, the current definition of “consumers” in our draft rule runs counter to the statute and blatantly ignores the intent of Congress to provide reliable, accurate information for the public's use.

More to come…

Garbage In...Garbage Out

Over the next few weeks, I will explain in detail the *MAIN FLAWS* in the database rule as currently proposed. It is my hope that this Commission will listen to the commenters and make significant, necessary changes before finalizing this rule:

Flaw #1: WHO CAN SUBMIT A REPORT

The CPSIA only mentions five categories of submitters: consumers; local, State, or Federal government agencies; health care professionals; child service providers; and public safety entities. Anyone looking at this list would see a common thread—these are all people who might have first-hand knowledge of the incident. Why would Congress have included this list, if it actually intended anyone to be able to submit a report? The answer is, it didn’t. Thus, the rule’s list of submitters should not include those who have no relationship to the incident in question.

But as currently conceived, anyone will be able to submit a “report of harm” to the new, public database—even if the submitter does not know who was harmed, the particular product involved (let alone the exact model), and did not see the incident occur. As of right now, in a national database full of incidents across all consumer products (everything from toasters, to ATVs, to furniture), we are not even limiting who can submit to people who have first-hand knowledge of an incident!

Why is this important? Because Congress intended to create a useful, accurate database for consumers wishing to make a purchase. But this database will not be useful to consumers if random bystanders, attorneys, advocacy groups or even well-intentioned citizens without key facts can fill it with unreliable reports. It will simply be garbage in…garbage out.

More to come…

"I can't hear you...I’m not listening"

This week’s consumer database hearing confirmed what I have feared since the NPR was released….this commission simply is not interested in listening to your concerns. More than 2/3 of the comments we received indicated that a more narrow definition of “consumer” or “others” would improve the accuracy and reliability of the database---something that is imperative for both consumers and manufacturers that will be using it. A massive public database with unverified complaints and no limits to what can come in (with a self-verification check box and disclaimer that barely pass the laugh test…) is useless to just about everyone but perhaps trial lawyers and advocacy groups looking for someone to sue or a new industry to regulate…..

I hope there is still a chance that the final rule will contain enough improvements to bring some common sense to this massive endeavor.

"The Miley Cyrus Standard"

Thought you'd be interested in this Washington Times Op-Ed that points out more confusion caused by the Definition of Children's Product and "the discordant effects of big government that apparently can't be tamed."

EDITORIAL: Bureaucrats way out of tune

Definition of “Children’s Product:” Whether you’re in, might be in, or still confused...Welcome to the black hole of CPSIA regulation!

Today, the Commission had a golden opportunity to put a fence around those products definitely covered by the CPSIA as well as exclude those products which we know pose no risk and which do not HAVE TO fall under the statute. The comments received by the public on this proposed interpretive rule defining “children’s product” by and large asked for just this type of clarity. They also made the case for how a number of everyday, safe products could be reasonably excluded from the requirements of the CPSIA—given, of course, that the law has nothing to do with risk.

But instead, the Commission went in the opposite direction, adding in more products than required and adding products even beyond what was first proposed to the public.

The consequences for whether a product is “in” or “out” of the definition are tremendous: if you’re in, you must pay to have your product (every piece of it) third-party tested, certified, and have a tracking label—which has led many small businesses to leave the children’s market or simply close their doors. Oh, and if you make a product for ages in the grey area (age 10, 11, 12….and older) and really needed this rule to let you know where you stand, you may just now be realizing that the final answer is “it depends!” –which means, somebody out there (i.e., the CPSC, a state attorney general, a retailer) may consider your product a children’s product. Manufacturers of furniture, clothing, or products made for the “tween” years may be learning for the first time that they’re even subject to the law’s non-risk-based lead-content standards.

So much for trying to reduce unnecessary government regulation, protect jobs, and preserve choices for consumers—so much for common sense.

Click here for my official statement on the Final Interpretive Rule: Interpretation of a Children’s Product

ALSO: Read the AP story and New York Times Front Page story covering this issue

“I’m from the government and I’m here to help you!”

A brand new “Office of Education, Global Outreach, and Small Business Ombudsman” at the Commission is being advertised as a way to help small businesses impacted by the CPSIA—something that may be taken as a cruel joke by those businesses that have already been forced to close their doors or are exiting the children’s product market. What help will a new government office for “outreach” be able to provide, if we as a Commission continue to do very little to mitigate the unintended consequences of the law through our own regulations? Not much……

That is why I could not support today’s vote to create a new government office at the CPSC dedicated to outreach and education.

Furthermore, new government offices or programs, no matter how small, take on a life of their own. They grow and grow—no matter how innocent the original intentions of their creators. It is precisely such mission creep in federal spending that continues to make headlines every day and with which the American people are fed up. Congressman Paul Ryan (R-WI) and American Enterprise Institute President Arthur Brooks said it best in their recent op-ed in The Wall Street Journal:

"Individually, these things might sound fine. Multiply them and add them all up, though, and you have a system that most Americans manifestly oppose—one that creates a crushing burden of debt and teaches our children and grandchildren that government is the solution to all our problems. Seventy percent of us want stronger free enterprise, but the other 30% keep moving us closer toward an unacceptably statist America—one acceptable government program at a time."

Are we listening? I don’t think so…

Click here to read: "The Size of Government and the Choice This Fall"

Click here to read my official statement