Product registration card proposal on CPSC agenda.

Given a recent briefing package issued by CPSC staff, there is little likelihood that consumers will be getting product registration cards with new purchases any time soon. The cards would be used to identify owners of products that are later recalled.

At a meeting Feb. 21, Commissioners will take up the matter of a proposed rule requiring manufacturers to include consumer product registration cards with children's products. A vote is scheduled for March 7.

The matter before the Commissioners is whether to begin rulemaking in response to a petition filed by the Consumer Federation of America (CFA) in July 2001. CFA's petition contended that collection of data about the purchasers was necessary in order to facilitate recalls. There have been instances of dangerous products, recalled years before, being blamed for deaths or injuries to consumers. In such cases, frequently the consumer using the product had no knowledge of the recall.

In its briefing package CPSC staff recommends that the Commission defer action on the petition until it completes a new study on a wide variety of methods to improve the effectiveness of its product recalls. Chairman Hal Stratton has requested a new format for the Feb. 21 briefing. Members of the public who commented on the proposal in writing are being invited to participate at the briefing. Such public testimony is normally allowed only at meetings at which the staff is seeking comment, but this time the Commissioners will be able to exchange ideas with the affected parties.

The issue of recall effectiveness has been a recurring one at the agency. In 1999, the agency conducted a public forum on how to improve the rate of return of recalled products. The term "recall effectiveness rates" is defined as the rate at which products recalled by CPSC are returned to the manufacturer. Historically, those rates have been extremely low on the majority of products. (For instance, in 1996 and 1997, those rates were 16% and 18%, respectively.)

As would be expected, consumers frequently do not return cheaper products, while consumers tend to submit claims for a refund or replacement on costlier products, such as household appliances.

Method Would be Costly

In its petition CFA asked that the agency require companies to collect information by means of a postage-paid registration card with the contact information of the purchaser (name, address and e-mail address). The card would be preprinted with the name and model number of the product purchased. In addition, CFA asked CPSC to require that this information be maintained in a data base for a minimum of 20 years or the useful life of the product, whichever is longer.

Industry commenters argued that the scope of "all children's products" was too broad and that due to low price, a short useful life, and minimal risk, certain products should be exempt.

The Monitor has commented in the past that federal mandating of registration cards would measurably increase the cost of products to consumers. CPSC estimated that the per unit cost for cards returned by the consumer could range from a low of 32 cents to a high of 80 cents. If consumers do not return the card (research shows most will not), the unit cost of including the card would still be as much as 30 cents. (1)

The Division of Human Factors at CPSC, which generated the current briefing package, observes that product registration cards "are of little or no use to secondhand users of children's products." The staff also noted that registration cards have limited usefulness because consumers tend to move fairly often, making the maintenance of consumers' addresses useless. (2)

The briefing package notes that the staff has recently begun a separate recall effectiveness project. That effort is designed to evaluate consumers' behaviors and to study the whole recall process. (3)

The Commission also has before it a proposal generated by CPSC staff in June 2001 that would require companies to include product registration cards with certain consumer products, specifically counter-top appliances and juvenile products, while the CFA petition includes only "all children's products."

Legal Authority Questioned

Some, both within and outside the agency, have questioned whether CPSC possesses the legal authority to require registration cards. In 2001, CPSC General Counsel Michael Solender argued that the agency derives its authority to issue such a rule from Section 16 (b) of the Consumer Product Safety Act. (4)

Others contend that this section of the Act does not specifically authorize "registration cards" and furthermore, that it would be impossible to establish a "cost-benefit" analysis to support their use.

`Fast Track' vs. Traditional Recalls

Missing from the discussion about product registration cards is the record of the so-called "Fast Track" recall system. This method, adopted by the agency's compliance office in late 1995, permits companies with a suspect product to come to CPSC with a ready-to-go recall program. Once the CPSC staff reviews and approves the program, the companies voluntarily institute the recalls, with CPSC participation. There is no preliminary determination of a possible Section 15 violation, which is the "Repair, Replacement or Refund" provision of the Consumer Product Safety Act that requires manufacturers to report possible "substantial product hazards" to the Commission.

The program's guidelines stipulate that the recall should take place within 20 days--a remarkable feat for any government body.

The record thus far, according to CPSC spokesmen, shows that the program is about three times more successful than the "traditional" method of recalls wherein CPSC's compliance staff invokes Section 15 (the Repair, Replacement or Refund provision under the Consumer Product Safety Act).

In using "Fast Track," an idea that emanated originally from the Compliance staff but was implemented under former Chairman Ann Brown, CPSC gives companies an opportunity to resolve the problem swiftly and without the threat of penalties. Under "Fast Track," recall rates have ranged between 30% and 60% for the past several years, according to CPSC spokesmen.

Will CPSC Finally Vote on Phthalates Petition?

Following up on a staff briefing in December, CPSC's Commissioners now have the staff response to their written questions on the matter of the possible risk to children posed by phthalates. Many hope that with this information they will vote soon to put the matter to rest.

CPSC is responding to a petition calling for a complete ban on the use of phthalates in toys used by children under three, who are likely to mouth toys. Petitioners allege that the chemicals used to soften the plastics pose a possible health risk to children.

The answers to the Commissioners provided by CPSC's Divisions of Health Sciences and Hazard Analysis were amazingly detailed.

For example, Commissioner Moore had asked the staff to comment on the hypothesis that, if other exposure to phthalates a child might receive through other (non-toy) sources in the home and the environment were added, some children might go over the ADI (Acceptable Daily Intake) of phthalates.

The staffs answer was unequivocal:

"The ADI is an estimate of the amount of DINP (5) that one may be exposed to over a lifetime with a negligible risk of harm. In the present case, the ADI is based on a study in which animals were fed DINP over a lifetime. The ADI is 125 times below the dose at which no adverse health effects were observed in animals ... If an individual exposure were to exceed the ADI, this would not necessarily result in harm ..." (6)

And in another response, this one to the question of how confident the staff is that the ADI is sufficiently low, the staff replied:

"... The ADI is 125 times below the dose at which no adverse health effects were observed in animals. In deriving the ADI, the CHAP (Chronic Hazard Advisory Panel) included two 10-fold uncertainty factors--the first for the possibility that humans may be more sensitive to DINP than animals and the second to protect sensitive populations, including children." (7)

In short, after years of study by CPSC and others, researchers can find no scientific evidence to support the allegation that the use of phthalates to soften plastic toys used by small children poses any health threat at all.

ATV Risk Analysis Study Is Delayed

CPSC insiders say that the long-awaited joint CPSC-industry study on risks of using ATVs (all-terrain vehicles), supposedly ready for release in early January, will now be delayed until mid-February.

The study is important because CPSC has docketed a petition by the Consumer Federation of America (CFA) to ban the sale of 4-wheel ATVs to children under 16 years of age.

Those familiar with the study say that the numbers will show that deaths and injuries associated with ATV use have indeed risen. That fact was already known when CPSC released its annual report on ATVs. The number of vehicles owned by consumers has also risen, and the number of users and hours they used the vehicles has also increased, so those factors could explain the rise in injuries.

But reports are that the rise in injuries is not easily explained by the increase in exposure. The government-industry study was expected to suggest answers to the safety problems that persist following the end of the 10-year consent agreement and industry's voluntary actions.

There is some evidence that the federal government's role in ATV safety has found its limits. Future efforts to reduce injuries will probably be made at the state and/or local levels. The public will have to wait another few weeks to find what answers CPSC found--if any.

Amusement Park Industry Disputes Markey Allegations

At a news conference in Washington, DC Jan. 21, officials of Six Flags Amusement Parks released two studies (8) aimed at discrediting claims made by Massachusetts Congressman Ed Markey (D-Mass) on the hazards of amusement park rides.

Markey is the sponsor of legislation (the National Amusement Park Ride Safety Act) in the 107th Congress that would give CPSC jurisdiction over fixed-site amusement parks. He has claimed that increasing speeds of newer roller coasters are capable of causing brain injury to riders, and has sought the help of the Brain Injury Association of America (BIAA) to look at data on such injuries and report to him. Markey said BIAA's report is expected next month.

But the impressive experts assembled by Six Flags assert there is no cause for alarm.

"Maximum g-forces have not changed in 30 years," according to Dr. Lee Dickinson of Exponent Failure Analysis Associates (EFAA), an engineering consulting firm. G-forces in current roller coasters "do not cause injuries," Dickinson said.

The EFAA report on roller coaster safety observed that "activities like being hit with a pillow, jumping on a rope, or falling on an exercise mat can all create much higher peaks of g-forces than a roller coaster."

Dickinson said that other common activities, like being spun in a swing or sneezing, created g-forces that are comparable to a roller coaster.

In response, Congressman Markey released a statement that said, in part, "I am encouraged that the amusement park industry is finally taking so seriously the potential for brain injury on roller coasters and other rides."

Wait a minute, Congressman Markey, the industry report said there was no such potential!

But no matter, Markey said he would reintroduce his legislation to regulate the fixed-site amusement park industry in the 108th Congress.

Markey's statement also claimed that "thousands of park patrons are injured in non-brain injury accidents each year on roller coasters and other park rides, and some of those patrons actually die on these rides." (9)

Dr. Richard Harbaugh of the American Association of Neurological Surgeons, another expert at the Six Flags-sponsored news conference, disputed Markey's claim that amusement park patrons were being injured at alarming rates.

Harbaugh told the media that "the overall injury rate at amusement parks as reported by the CPSC is significantly lower than for exposure to other activities such as owning bunk beds, skateboards or bicycles."

Harbaugh also stated that "any claims that theme park related neurological injuries are increasing are not substantiated by available evidence."

In response to the charge that g-forces on today's roller coasters are causing brain injuries, the industry's experts concluded that available medical literature does not show an association between increasing g-forces and the neurological injuries under review. They also concluded, "g-forces do not appear to be increasing on fixed theme park rides." (10)

The report by the American Association of Neurological Surgeons stated that "[T]here is a large body of experimental research on multiple subjects regarding the effects of acceleration on the human body. None of these studies mention a case of neurological injuries that are being reported to occur on fixed theme park rides." (11)

Few observers believe that Markey's amusement park legislation has any chance of passing this year.

(1) "CPSC, CFA, Seek Product Registration Rule," CPSC Monitor, Vol. 6, Issue 6-7, June-July 2001.

(2) Briefing Package, Petition No. CP 01-1, Petition for Rule Requiring Product Registration Cards, U.S. Consumer Product Safety Commission, January 2003.

(3) Ibid.

(4) Consumer Product Safety Act, (CPSA), 15 U.S.C. Sec. 206(b), that provides: "Every person who is a manufacturer, private labeler, or distributor of a consumer product shall establish and maintain such records, make such reports, and provide such information as the commission may, by rule, reasonably require for the purposes of implementing this Act, or to determine compliance with rules or orders prescribed under this Act."

(5) DINP is Diisononyl phthalate--a chemical used to soften plastic used in certain products, such as toys.

(6) U.S. Consumer Product Safety Commission, Memo to Marilyn L. Wind, Ph.D., Project Manager, Petition HP 99-1 Jan. 16, 2003

(7) Ibid.

(8) The studies are "Investigation of Amusement Park and Roller Coaster Injury Likelihood and Severity," by Exponent Failure Analysis Associates and "Fixed Theme Park Rides and Neurological Injuries: Expert Panel Consensus Report," by the American Association of Neurological Surgeons, Neuro Knowledge Outcome Sciences, Inc.

(9) "Rep. Markey Statement in Reaction to Amusement Park Industry Press Conference," News from Ed Markey, Washington, DC, Jan. 21, 2003.

(10) "U.S. Amusement Parks, Myth vs. Reality," document released by Six Flags at Jan. 21 news conference.

(11) American Association of Neurological Surgeons, Neuro-Knowledge, Outcome Sciences, Inc., "Fixed Theme Park Rides and Neurological Injuries: Expert Panel Consensus Report."