Regulatory agenda stalls at CPSC as commission awaits arrival of new Chairman.

The name of President Bush's intended nominee as Chairman of the U.S. Consumer Product Safety Commission (CPSC), Harold "Hal" Stratton, former Attorney General of New Mexico, has not yet been sent to the Senate.

But while awaiting confirmation, Stratton has been the subject of much speculation since his record on product safety regulation is unknown. A Washington Post article by Caroline Mayer (Nov. 22, 2001) quoted several Stratton associates who portrayed him as an independent thinker who takes the law very seriously. Stratton has had a private practice in Albuquerque, New Mexico, for the past ten years.

Several former associates praised Stratton's efforts while state Attorney General in bringing cases against telemarketers, pyramid promotional schemes and art dealers selling fraudulent masterpieces.

William MacLeod, who was Director of the Bureau of Consumer Protection at the Federal Trade Commission in the 1980's, termed Stratton "one of our biggest supporters" in attacking telemarketing fraud, according to the Post article. [1] (MacLeod is also the current Chairman of the Board of Directors of Consumer Alert, which publishes CPSC Monitor.)

Jane Hadley, in the Seattle Post Intelligencer (Nov. 1, 2001), observed that there will be "no confusing" Stratton with the former Chairman Ann Brown. Hadley noted that Stratton had founded the Rio Grande Foundation in New Mexico to promote "public policy founded upon the principles of limited government, economic freedom and individual responsibility." [2]

Hadley also quotes Consumer Federation of America (CFA) product safety director Mary Ellen Fise as saying "We would be very concerned about any nominee that has an anti-regulatory philosophy." [3]

CFA has petitioned the agency many times for various product safety regulations.

Meanwhile, certain regulatory proposals that had been on the fast track during the former chairman's tenure are now seemingly stalled. CFA's petition for Product Registration Cards for Products Intended for Children is on hold. Instead, a similar staff-generated package proposing mandatory product registration cards for certain consumer products, as a means of improving recall effectiveness, is also on hold. The staff had recommended going forward with an Advance Notice of Proposed Rulemaking (ANPR) [4] for the registration card mandate, and the matter was scheduled for a Commission meeting in late October, but was postponed and not rescheduled. [5] (CPSC Monitor will expand on this story in its next issue.)

Significantly, a staff briefing package on an Upholstered Furniture Flammability Draft Standard is also on hold. The package had been in preparation for many months, and was released to the public in mid-October.

The 900-page document, available from CPSC's Office of the Secretary or on CPSC's web site www.cpsc.gov., proposes a draft standard for upholstered furniture flammability in response to a 1994 petition by the National Association of State Fire Marshals (NASFM)--since withdrawn. [6]

The staff proposal would require the use of flame retardant (FR) chemicals on upholstery fabrics, but new research by the state of California and by the furniture industry could result in improved fire resistance without the use of FR chemicals.

The staff departed from usual CPSC procedure by suggesting that, due to the complexity of the issue and the amount of material in the briefing package, the Commission should hold a public meeting before considering a proposed rule. [7]

CPSC Compliance and Public Affairs Offices Still Busy

As Vice Chairman Commissioner Thomas Moore assumed the role of Acting Chairman after the Nov. 1 resignation of Ann Brown, the regulatory agenda may have slowed, but CPSC's Office of Information and Public Affairs and Office of Compliance remained active.

Early in December the Public Affairs staff had to deal with media calls concerning two more deaths related to Lane Cedar chests, marketed between 1912 and 1987. The chests had latching mechanisms that automatically locked when closed. CPSC had recalled the chests twice, once in 1996 and again in March 2000, when it received reports that six children had suffocated after crawling inside the chests.

Over the weekend of Dec. 1-2, two more deaths of children were reported.

Lane is offering new locks, free of charge, to consumers who still own the old model cedar chests. Since 1987, the cedar chests have been designed with locks that do not automatically latch shut when the lid is closed. In July 2001, CPSC fined Lane $900,000 for failure to report a defect in two chest models that were related to the suffocation deaths.

Consumers are urged to check any older model cedar chests in their possession. The brand name "Lane," or "Virginia Maid" is located inside the cedar chest. Contact Lane at [phone] to order the new latch.

In addition, the Compliance Office was busy working out the announcements of several more recalls--many of them toys and children's products, despite the lack of a CPSC Chairman.

Moore Names Career Staff to Top CPSC Posts

After Ann Brown's departure, Acting Chairman Moore moved quickly to fill vacant posts. Tom Murr, a well-seasoned CPSC careerist, was named Acting Executive Director. Alan Shakin, a longtime CPSC staff attorney, became Acting General Counsel, and Ken Giles, a knowledgeable public affairs professional, was named Acting Director of Information and Public Affairs. In addition, Moore named Michael Gougisha of his own staff to the post of Acting Director of Congressional Relations.

In announcing the new appointees Moore added, "The American public can be assured that CPSC will continue its safety mission without a pause. Commissioner Gall and I will carry on our mission to eliminate hazardous products from the marketplace and to inform and educate consumers about product safety while we await the confirmation of a new Chairman." [8]

Icon, CPSC Announce Settlement in Exercise Equipment Case

Also during this period, CPSC settled a high- profile case involving a piece of exercise equipment manufactured by Icon Health and Fitness of Logan, Utah, and marketed by Wal-Mart. In the settlement, CPSC accepted a civil penalty that was a small fraction of the amount it had originally sought.

CPSC sued both Wal-Mart and Icon in May of this year, alleging that both firms failed to report serious safety hazards as a result of mishaps with the home exercise equipment. (The equipment was the Weider Shape Glider, Model WECR 4306, the Weider Power Glide, Model WECR 4406, and the Weslo Shape Trainer, Model WLCR 4356.)

CPSC referred the case to the U.S. Department of Justice, which filed the suit on behalf of CPSC for a $4.5 million fine each from Wal-Mart and Icon (See CPSC Monitor, May, 2001.).[9]

No word yet on whether Wal-Mart will settle. But Icon's civil penalty was greatly reduced from the original $4.5 million sought by CPSC. The company agreed to pay only $500,000 to resolve the lawsuit. The company had reportedly offered to pay a civil penalty of $300,000 prior to CPSC's action, but CPSC rejected the offer. The recent settlement also requires the company to institute certain recordkeeping and monitoring systems to track information about safety hazards. [10]

The exercise gliders allegedly had defects that caused injuries such as fractured vertebrae and herniated discs. The incidents were said to take place over an 18-month period. Icon recalled the gliders in April 1999 in cooperation with CPSC.

The Department of Justice's Office of Consumer Litigation handled the case for CPSC.

Daisy Outdoor Products Responds to CPSC Lawsuit

In a move widely heralded as her boldest stroke, former CPSC chairman Ann Brown had sought a CPSC lawsuit targeting Daisy Outdoor Products over the safety of the company's models 856 and 880 Powerline Airguns (See CPSC Monitor, Vol. 6, Issue 10, October 2001).

CPSC's Commissioners voted 2-1 to issue the administrative complaint, with Commissioner Mary Gall dissenting, after the company refused to recall 7.5 million of the airguns. CPSC acted following an incident involving two teenage boys who were playing with one of the guns, when one fired the gun at his companion, believing that the gun as not loaded. The victim was permanently disabled.

Daisy Outdoor Products issued a statement noting that CPSC's action is administrative, and that it believes a "close examination of the performance of the two airgun models will demonstrate that they are safe when appropriately used under adult supervision."

Daisy said, "It is important to note that the Consumer Product Safety Commission (CPSC) has reviewed these same models regularly over the past 20 years, most recently in 1999, and found them to be safe with no defects. The models being reviewed by CPSC are sold only to people who are at least 16 years of age and should be used only under the supervision of an adult. Those models also contain numerous safety features. In order to fire the air gun one needs to pump it, pull back the bolt, push forward the bolt, aim it and fire. One cannot fire this gun without completing all of these steps. We are not aware of any accidental firings of these models. At any time during these steps, the user can always check to see whether the air rifle is loaded." [11]

With former Chairman Brown gone, it will be interesting to see how far CPSC goes with the Daisy lawsuit.

Brown Touts CPSC `Initiative' as Her Own on SAFE website

Agency insiders are noticing a more open atmosphere since the departure of former chairman Ann Brown. They particularly notice an absence of pressure to produce reports and documents to meet urgent television deadlines, in contrast to the Brown administration.

In addition, Acting Chairman Thomas Moore and Commissioner Mary Gall are instructing staff to base their work on the CPSC statute, sound science and accurate information.

But at SAFE (Safer America for Everyone) the non-profit created and headed by former Chairman Ann Brown, there are signs that Brown has trouble making clear distinctions between her old role and her new one.

The Brown group's website, for example, www.saferam.org, features an initiative called "Safe Circle."

The project is described as SAFE's effort to enlist manufacturers, distributors and retailers in the cause of product safety. The website states that it will highlight to the public examples of good corporate safety practices, and will sponsor activities, such as conferences, meetings and awards, to promote consumer safety.

The trouble is, "SAFE Circle" is virtually a carbon copy of the "Product Safety Circle" unveiled by Brown as CPSC Chairman in October 2000. [12]

When the SAFE Circle reference first appeared on Brown's website, it was billed as "the successor to the Product Safety Circle initiated by Ann Brown when she was Chairman of the U.S. Consumer Product Safety Commission (CPSC)."

John Whalen, a reporter for the Product Safety and Liability Reporter (PS&LR), published by the Bureau of National Affairs (BNA), reported that agency officials quickly responded with a letter of reprimand to Brown. The letter was reportedly signed by the Acting General Counsel and approved by both Commissioners. It informed Brown that she could not describe her effort as a "successor" to the Product Safety Circle at CPSC, since that organization still exists.

The PS&LR article quotes Barbara Rosenfeld, vice chairman of SAFE and a former Brown staff advisor at CPSC, about SAFE's response to the General Counsel's letter. Rosenfeld told PS&LR that SAFE's web page was changed to say, "Safe Circle is building on the project Ann started at the CPSC."

Rosenfeld said that SAFE was also removing the copyright from the page, since the 10 safety principles it uses are literally the exact same ones used by CPSC's Product Safety Circle. [13]

Brown urges companies to join the SAFE Circle, and describes how they can use the SAFE Circle Seal. Companies must pledge their support for the SAFE Circle's 10 safety principles, name a senior official to oversee implementation of the principles, and agree to share and publicize their companies' safety innovations.

It will be interesting to see if any of the original Product Safety Circle companies will join SAFE's new group, now that Brown no longer has regulatory and compliance clout at her disposal.

Youth-Sized ATVs May Help Prevent Greater Injuries to Kids

Since the expiration of a 1987 Consent Agreement between CPSC and the manufacturers of All-Terrain Vehicles (ATVs), there has been a significant increase in the models and the numbers of small-sized ATVs designed especially for children.

The consent agreement between CPSC and the ATV industry settled a complaint filed against the industry under the agency's Section 12 "imminent hazard" clause. The agreement went into effect in 1988 and lasted for ten years. It contained specific safety measures to be observed by ATV manufacturers and distributors. Although the agreement expired in 1998, manufacturers have pledged to continue to abide by its principles.

Some were concerned that a proliferation of small youth-sized ATVs, with increasingly sophisticated capabilities, might result in higher injury rates to young children.

But that has not happened. The latest CPSC report on ATV deaths and injuries issued in May 2001, and covering data for the years 1982 through 2000, shows an increase in the number of deaths (up 366 above the 1999 figures). But injuries to children under 16 riding ATVS, although up by 15%, are not occurring on the child-sized ATVs.

Nick Marchica, a mechanical engineer who was one of the prime managers of the ATV investigation at CPSC more than 15 years ago, says that injuries to young children are continuing to occur when they are permitted to ride adult-sized ATVS.

Marchica also emphasized the importance of wearing helmets when riding ATVs, no matter what the rider's age. CPSC studies have shown that 85% of severe injuries could have been avoided by wearing protective helmets.

Marchico noted that a voluntary standard for ATVs developed through the American National Standards Institute (ANSI) by the ATV industry through its trade association, the Specialty Vehicle Institute of America (SVIA) has specific requirements for the youth-sized ATVS.

The requirements primarily deal with braking and speed. There are two categories of youth-sized ATVS, Category Y-6 for children six and over and Y-12 for children 12 and over. The machines are manufactured with speed limiters of about 15 miles per hour for younger children and 30 miles per hour for older children. CPSC staff continually monitors that voluntary standard, and, Marchica says, "for the most part, companies are in conformance."

For more on safety information regarding the use of four-wheelers, see www.ATVsafety.org, or call the ATV Safety Institute at [phone].

Paulison Confirmed as Head of U.S. Fire Administration

The U.S. Senate confirmed R. David Paulison of Miami as head of the U.S. Fire Administration (USFA) Nov. 30, 2001. Paulison was chief of the Miami-Dade Fire Rescue Department and past president of the International Association of Fire Chiefs.

USFA is part of the Federal Emergency Management Agency (FEMA).

Paulison has 30 years experience in fire rescue service. The mission of the U.S. Fire Administration is to reduce loss of life and property due to fire and related emergencies through public education, training, technology and data research in coordination with other federal agencies. USFA works closely with CPSC on many fire-related issues.

[1] Mayer, Caroline E., "CPSC Pick Often a Maverick," Washington Post, Nov. 22, 2001.

[2] Hadley, Jane, "Safety Commission May See a Big Change at the Top," Seattle Post Intelligencer, Nov. 1, 2001.

[3] Ibid.

[4] See CPSC Monitor, September-October, 2001, Vol. 6, Issue 9, "CPSC Moves Forward With Mandatory Rule for Product Registration."

[5] Information from the Office of Information and Public Affairs, CPSC, Dec. 4, 2001.

[6], "Regulation of Upholstered Furniture Is Still on CPSC's Agenda," CPSC Monitor, Vol. 6, Issue 9, September-October, 2001.

[7] Briefing Package on Upholstered Furniture Flammability: Regulatory Options, October 2001, U.S. Consumer Product Safety Commission, Washington DC.

[8] "Thomas Moore Becomes Acting Chairman of U.S. Consumer Product Safety Commission," from the Office of Information and Public Affairs, Release # 02-035, Nov. 2, 2001, U.S. Consumer Product Safety Commission, Washington, DC.

[9] "CPSC Seeks Giant Civil Penalty from Wal-Mart and Icon for Non-Reporting of Alleged Injuries Associated with Exercise Equipment," CPSC Monitor, Vol. 6, Issue 5, May 2001.

[10] "CPSC Announces Icon Agrees to Pay $500,000 Civil Penalty for Delay in Reporting Exercise Equipment Hazard," News from CPSC, U.S. Consumer Product Safety Commission, Office of Information and Public Affairs, Release # 02-055, Nov. 29, 2001.

[11] Statement by Daisy Outdoor Products: "Daisy Response to Consumer Product Safety Commission Complaint."

[12] "CPSC Chairman Ann Brown Unveils Product Safety Initiative `Top Ten List' of Safety Principles aimed at Reducing Number of Recalls." Office of Information and Public Affairs, U.S. Consumer Product Safety Commission, Release # 01-003, Washington DC, Oct. 5, 2000.

[13] "SAFE Revises Language on Web Page After CPSC Complains About `Safe Circle,' "Product Safety and Liability Reporter, Bureau of National Affairs, Washington, DC.

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