Bush to nominate Mary Gall as CPSC Chair; Hillary Clinton attacks Gall's record.

As expected, President Bush has announced his "intent to nominate" Commissioner Mary Sheila Gall as the next chair of the U.S. Consumer Product Safety Commission (CPSC).

Commissioner Gall has served at the Commission since 1991, receiving her first appointment from former President George Bush. She was nominated by President Clinton for a second term and confirmed by the Senate in 1999.

The current chairman, Ann Brown, has served as chair since her appointment by President Clinton in 1994. She was re-nominated for a second term by President Clinton and subsequently confirmed by the Senate in 1999. As President, Bush has the authority to replace the chairman of CPSC, but the current chairman could remain on the panel as a Commissioner until the expiration of her current term. According to speculation, she would most likely her post if Gall were confirmed as Chairman.

Terms on the Commission are for seven years. Brown's original appointment was to the remainder of an unexpired term; hence her reappointment was necessary after five years.

While Commissioner Gall's formal nomination papers have not yet been sent to the Senate, the presidential announcement nonetheless stirred some controversy on Capitol Hill. Sen. Hillary Rodham Clinton (D-NY) said in an interview with USA Today on April 24 that she would oppose Bush's nomination of Gall to the CPSC chairmanship. (1) Clinton said that in nominating Gall, Bush was "attempting to undermine the purpose of the commission."

Clinton, the former First Lady, charged that "this is a political appointment," and the USA Today piece went on to enumerate Gall's positions in opposition to certain issues which were at the top of outgoing Chairman Brown's regulatory agenda. (2)

The issues listed in the USA Today piece included three on which Gall had taken a position prior to her re-nomination by President Clinton. Gall made the point in a response to Sen. Clinton and, in a letter which appeared in USA Today, noted that apparently President Clinton had been comfortable with her positions on these issues at the time of her re-nomination. (3) USA Today referred to Gall's positions on baby bath seats, baby walkers, bunk beds, and crayon reformulation as reasons for Clinton's opposition.

In reviewing these policies, CPSC Monitor found itself in agreement with Gall. Her 1994 vote against banning baby bath seats (the issue has come before the Commission again--see below) was done after she researched staff in-depth investigations (IDIs) on the drowning scenarios. She concluded that the product was not at fault, but that the tragedies occurred because of the neglect of adult caregivers who left the babies alone in bathtubs. (4)

In her vote against mandatory regulations on baby walkers, Gall concluded that a joint effort by CPSC and industry to develop a non-government standard had the best potential for resolving the risk of injury. In fact, that is just what happened, and products on the market today have designs which mitigate the risks associated with old baby walkers. (5)

The Commission's vote for a federal regulation covering bunk beds was well documented by CPSC Monitor. (6) Gall's dissenting vote was based on her belief that the non-government standard in place (one which had been developed with the aid of CPSC) was a good one and that it enjoyed substantial compliance (over 90%). Gall noted that under the governing statute, the Consumer Product Safety Act (CPSA), the existence of an adequate voluntary standard precluded federal action. (7) The new bunk bed regulation adopted by CPSC by a 2-1 vote incorporates the language of the old voluntary standard almost verbatim. It almost certainly violates congressional intent.

The last item cited in the newspaper article was Chairman Brown's public demand that crayon manufacturers reformulate certain crayons, which had been erroneously alleged to have traces of asbestos. At the time, the manufacturers felt compelled to comply due to the unfavorable publicity from CPSC and other sources. On that issue Gall commented that the "transitional fibers" in the crayons were at a level much less than the level of asbestos permitted by EPA in drinking water. She also noted that given the facts and the legal requirements under the CPSA, CPSC could never have made a case for requiring reformulation through regulation. (8)

Moore Supports Gall

Commissioner Thomas Moore, another Clinton appointee to CPSC and a Democrat, sided with Gall on the controversy over her reappointment. In a statement released to the media, Moore said it was "disturbing" that Gall would be attacked for her convictions.

"During my six years at the agency, I have been impressed by Commissioner Gall's hard work, her thoughtful consideration of every issue and been persuaded, on occasion, by her arguments," Moore said.

"But whether we agree on an issue or not, I can find nothing in her views or her voting record to cause me any alarm about her assuming the Chairmanship of this agency. I have no doubt that, however she votes, her decisions will be well-reasoned and give expression to a valid viewpoint shared by many of Americans." (9)

Consumer Alert Comments on Gall

According to USA Today, "Consumer advocates are alarmed by Gall's nomination." The story quotes Rachel Weintraub of U.S. Public Interest Research Group (USPIRG) saying, "We've been disappointed with her record."

But Consumer Alert, CPSC Monitor's publisher and a non-partisan, non-profit consumer group representing a market-oriented approach to consumer issues, issued its own statement on April 26 in response, saying that "Commissioner Gall has defended consumers' best interests throughout her tenure." (10)

Two former CPSC Commissioners, Terry Scanlon (a former CPSC chairman) and Carol Dawson, praised Gall's record in the Consumer Alert statement.

Gall's background for the job of chairman is impressive. She has served at CPSC as a Commissioner since 1991. Prior to that she served as Assistant Secretary of the U.S. Department of Health and Human Services (1989-1991). Before taking that position, she was a Counselor to the Director, Office of Personnel Management (1986-1989) and earlier worked at the White House as a Deputy Policy Advisor to Vice President Bush. She has also served on the staffs of several members of Congress--Senator James Buckley and Congressman Jack Kemp of New York, and Congressman Tom Coleman of Missouri.

A single adoptive parent, Gall was President Reagan's choice to chair the President's Task Force on Adoption.

Baby Bath Seats Petition Reaches Commission

On May 23 CPSC staff will brief the Commissioners on the most recent petition to ban baby bath seats. A vote on whether to issue an Advance Notice of Proposed Rulemaking (ANPR) is set for May 30.

Last summer the Consumer Federation of America (CFA) filed a petition with CPSC asking the agency to ban devices known as "baby bath seats." The issue had been considered before, in 1994, when the Commission (then composed of Chairman Ann Brown, Commis-sioners Mary Gall and Jacqueline Jones-Smith) voted against a ban 2-1.

Revisiting the issue has been high on the agenda of Chairman Ann Brown, who told an audience at the National Press Club on Dec. 16, 1999 that she favored banning the product because it looked "too safe." Indeed, the petitioners cited the "too safe" concept in their letter to CPSC. In the last few weeks Commis-sioners have been considering the CPSC staff-briefing package, a hefty compilation of staff analysis and public comments.

CFA said the product induces a "false sense of security" which "leads to increased risk-taking behavior among those using the product even when the irresponsible nature of the caregivers is taken into account."

The push to ban the products also picked up support from the National Safe Kids Campaign. Its Executive Director, Heather Paul, wrote to the Commission supporting the ban, as did Donald L. Mays, Technical Director, Good Housekeeping Institute.

The issue of the product's psychological effect on caregivers, i.e., that it produces a sense that the infant can be left unattended for a brief time, is addressed throughout the briefing package.

Supporters of the ban say that after using the product successfully several times, a parent or baby-sitter may assume the baby is "safe" and be inclined to take more risks, such as leaving for a while to answer a telephone, attend to another child, or perform a chore.

Of the 66 comments received by CPSC in response to a notice in the Federal Register, 45 were form letters expressing support for the petition in the same language as used by CFA. Seventeen other letters supported the ban. The other four represented two groups, one individual opposing the ban and one individual both supporting and opposing the ban.

Opponents argue that under no circumstances should children of this age be left unattended in a bathtub, bath seat or no bath seat.

Out of 69 deaths associated with bath seats from January 1983 through November 2000, 66 of the deaths occurred when the child was left unattended for periods of a few minutes or longer. The times that the adult supervisor was out of the room ranged from between 2 minutes up to over an hour.

The briefing package notes incidents in which caregivers were impaired by alcohol, left the infant in a tub with a toddler who held the infant's head under water, and incidents where the caregiver left the infant unattended to watch television or play a video game.

The time frame during which the 69 infant drownings occurred was nearly 17 years. This works out to an average of about 4 such drownings per year. (11) It would appear that the larger problem is the continued drownings of infants under 12 months of age in bathtubs without the use of a bath seat. One estimate is that 50 infants die in bathtub drownings per year. Using these data and figuring in the four or eight bath seat-related drownings per year (using CPSC data or CFA petition data respectively) leaves 42 to 46 bathtub deaths per year in which bath seats were not involved.

The Juvenile Products Manufacturers Association (JPMA) and CPSC both estimate that there are one million of the products sold each year, and that about 1.4 to 2 million products are in use. According to JPMA, "if the population of children under one year of age is 4 million, the drowning rate in bathtubs without using bath seats may be more than ten times higher for children with whom bath seats are used." (12) (13)

CPSC staff, however, saw the relationship between bath seat drownings and non-bath seat drownings very differently. The briefing package contains a memorandum from Debra Sweet of the Division of Hazard Analysis, in which she describes a complicated formula for comparing the two types of incidents. By using data only from the years 1996 and 1997, and eliminating any death not known to be directly related to an adult caregiver giving an infant a bath in a tub, the staff came up with a much smaller scope of non-bath seat related incidents. Further breaking down the comparisons, the staff compared incidents involving children of 5, 6, 7, 8, 9 and 10 months of age separately. Using a set of assumptions about the use of the product by owners of bath seats, they came up with a conclusion that the risk of death using bath seats is higher than not using them for babies of 5 to 7 months of age. According to staff, the risk decreases as the children advance in age to 8 to 10 months old. It is not possible in this newsletter to go into further detail, but interested readers may obtain the report in full by contacting CPSC. (14)

In comments on the petition filed with CPSC last fall, Consumer Alert's Executive Director Frances Smith noted that "[W]hile every single drowning death of an infant in a tub is regrettable, and preventable, banning the bath seat seems to be a peculiar remedy. Faulting a product--bath seats for babies--because it is `too safe' seems to be an odd position for both CPSC and CFA. The criticism seems to be that the seats lull parents into a false sense of security that they can leave their children unattended. However, most parents should know that where children, especially infants and toddlers, are concerned, no product design can substitute for parental attention."

Smith went on to comment that an action to ban the seats could actually increase drowning accidents, since data show that more children die as a result of drowning in bathtubs without the use of a bath seat being involved.

In conclusion, Smith wrote: "[But] banning products like the baby bath seats that have no manufacturing and design defects flies in the face of reason and commonsense." (15)

Should the Commission vote for an ANPR on May 30, there will be another public comment period before the agency takes up a final banning rule.

Former FTC Commissioner Rumored as Possible Bush Choice for Third Commissioner Slot

The Bureau of National Affairs publication Product Safety and Liability Reporter recently surfaced the name of a possible Bush nominee for a third Commission spot at CPSC.

The PS&LR named Margot Machol, who formerly served as a Commissioner at the Federal Trade Commission, as a possible contender. At present there is no vacancy on the Commission. The betting is that once Commissioner Mary Gall is confirmed by the Senate as the new Chair of CPSC, the present Chairman, Ann Brown, would resign rather than revert to Commissioner status. Her resignation would open up the possibility of another Bush nominee--a Republican. Machol is reportedly under consideration for other jobs in the Bush Administration as well. There are several other individuals, former staff members of the Commission and others who have also shown interest in the slot once it becomes available.

Footnotes:

(1) "Sen. Clinton Opposes Safety Nominee, by Kathy Kiely and Jayne O'Donnell, USA Today, April 24, 2001.

(2) Ibid.

(3) Letter to Hon. Hillary R. Clinton, United States Senate, from Commissioner Mary Sheila Gall, U.S. Consumer Product Safety Commission, April 26, 2001.

(4) CPSC Monitor, "A Full Court Press to Ban Baby Bath Seats," Vol. 5, No. 11, November 2000.

(5) CPSC Monitor, "CPSC to Consider Regulatory Proposals on Escalators, Baby Walkers," Vol. 5, No. 3, March 2000.

(6) CPSC Monitor, "A Bad Week for Voluntary Standards at CPSC: Commissioners Vote 2-1 to Adopt Mandatory Bunk Bed Rule," Vol. 4, No. 12, December 1999; also CPSC Monitor, Vol. 4, Issue 5, May 1999. Consumer Alert's Executive Director Frances Smith presented comments on the bunk bed issue at an agency public hearing on May 6, 1999.

(7) Consumer Product Safety Act, Sec. 9 (b) [15 U.S.C. 2058].

(8) CPSC Monitor, "A Silly Fuss Over `Killer Crayons,'" Vol. 5, No. 6, June 2000.

(9) Statement of Commissioner Thomas Hill Moore of the U.S. Consumer Product Safety Commission, April 26, 2001.

(10) "Statement of Consumer Alert: Recent Attacks on CPSC Commissioner Mary Gall," April 26, 2001.

(11) From the Comments of the Juvenile Products Manufacturers Association to CPSC: JPMA cites The National Center for Health Statistics (NCHS), public use data tapes Compressed Mortality Files: Code 1910.4, Hyattsville, MD: U.S. Department of Health and Human Services.

(12) Comments by the Juvenile Products Manufacturers Association to the Consumer Product Safety Commission concerning Baby Bath Seats. CPSC Briefing Package.

(13) CPSC staff disputes the estimates by the Juvenile Products Manufacturers Association by saying that the data collected in the early years was incomplete. CPSC uses data from only two years--1996 and 1997--to make comparisons, saying that data is the most complete. See CPSC Baby Bath Seat Petition briefing package, Tab D, p. 22.

(14) Memorandum from Debra Sweet, Division of Hazard Analysis, Subject: Hazard Analysis Memorandum for Bath Seat Petition, March 27, 2001, U.S. Consumer Product Safety Commission, Washington, DC 20207. To request a copy, call CPSC's Freedom of Information Office at 301-504-0785, ext. 1232.

(15) From Consumer Alert, Comments Submitted in Response to Petition HP 00-4 Petition to Ban Bath Seats. Oct. 23, 2000. By Executive Director Frances B. Smith.