Stratton nomination heads to senate floor.

President Bush's nomination of Harold D. Stratton, former Attorney General of New Mexico, to be a Commissioner and Chairman of the U.S. Consumer Product Safety Commission (CPSC) finally seems to be moving toward confirmation by the Senate.

The Senate Commerce Committee favorably reported the Stratton nomination to the full Senate on May 17. The action was taken by voice vote, but committee staff say that there were reservations by some committee members. Nonetheless, most observers expect that the nomination could come to the floor of the Senate for a vote before the Memorial Day recess. At press time it was not a certainty. The Commission has been without a quorum since May 1, when the statutory six-months expired since the departure of former Chairman Ann Brown.

CPSC staff continues to issue recall notices, all voluntary agreements. But no legal or regulatory action can be taken without the requisite quorum.

Stratton's appearance before the Senate Commerce Committee was uneventful. The New Mexico attorney and former state legislator told the committee that he had no "pre-conceived positions on any pending or potential matters" before the Commission.

However, he suggested three areas for possible improvement of CPSC's performance. The first area was improvements in interagency consultation and information-sharing when other federal agencies possess information useful to CPSC's mission.

The second area mentioned by Stratton was strengthening of consumer education outreach programs and consumer notification procedures.

The third area mentioned by Stratton was an enhancement of CPSC's joint effort with U.S. Customs to prevent dangerous products from entering the country.

CPSC Commissioners and staff say they are anxious for the new chairman to be confirmed and to take office. A June 6 date has been set for the agency's annual Priority setting public hearing. They are hoping that Stratton will take office in time to preside.

Administrative Law Judge Denies Daisy's Motion to Dismiss

Last month, CPSC Monitor reported on the Motion to Dismiss and Memorandum of Law submitted by attorneys for Daisy Manufacturing Co., Inc., in the CPSC complaint calling for the recall of some 7.5 million of Daisy's airguns. [1]

This is the notorious case in which former CPSC Chairman Ann Brown vowed to issue a "major recall or lawsuit" against a product that "kills and maims children" before leaving her job as head of the agency. The Commission voted 2-1 to issue a complaint against Daisy on the day before Brown left.

Attorneys for Daisy argued that in issuing the complaint, the agency violated many due process laws, and charged that former Chairman Brown had prejudged the case.

But Administrative Law Judge William Moran issued an Order denying the Motion to dismiss on May 7. [2]

Moran did not agree with the argument by Daisy attorneys Locker, Greenberg & Brainin, P.C. Instead, Moran agreed with the comments submitted by CPSC's complaint counsel, who claimed that the central allegation in Daisy's motion was in error. Daisy's attorneys had argued that former Chairman Brown and Commissioner Thomas Moore, who both voted to issue the complaint, had an improper, secret meeting at which they decided to authorize the complaint. However, Moran pointed out that the allegation is only apparent, based on the supposition that a news conference arranged in advance of the Commission vote proved that such a meeting took place. Moran supported CPSC's view that the pre-arranged news conference was only a response to a "real world" need to inform the media of CPSC actions.

Moran also rejected Daisy's suggestion that a copy of the draft complaint allegedly leaked to the news media in advance of the vote showed that prejudgment had occurred. CPSC staff "strongly denies" that it or any staff person leaked the draft complaint, according to Moran's Order.

This is a setback for Daisy, and the bottom line is that the case will continue, with a pre-trial hearing scheduled June 6.

The issue of airgun (or BB gun) safety has also arisen in some recent city council actions. According to an item in Fox News online, the City Council of Cleveland, Ohio recently passed a law classifying the guns as weapons. The law mandates that only adults may own such guns. A City Councilman introduced the legislation after a 13-year old was killed by a BB gun. A similar bill is pending in the state legislature.

According to the news report, lawmakers in Alpharetta, Ga. also outlawed the use of BB guns, pellet guns and paint guns by children under 16.

In most states, BB guns, pellet guns and paint guns are not classified as firearms because compressed air, not gunpowder, is used to shoot the projectiles.

But Colorado State Rep. Mark Hillman said that the effort to ban the use of BB guns by kids was "the paranoia of the nanny state liberals," according to the Fox News report. Hillman failed to get legislation passed in Colorado to change the designation of BB guns as a "deadly weapon." [3]

CPSC Officials Say Coverage of Campaign on Hazards of Adult-Sized Beds for Children Was Skewed 

Early in May, CPSC officials announced a new government-industry campaign to inform consumers about the hidden hazards of placing very young infants in adult-sized beds. But much of the media ran the story as a repeat of a 1999 Ann Brown-generated campaign against parents' "co-sleeping" with their infants.

CPSC spokesmen say the information campaign has little to do with the co-sleeping issue. Instead, the campaign is meant to warn consumers of hidden hazards of suffocation and strangulation as a result of placing very young infants to sleep in adult beds.

According to CPSC media spokesman Ken Giles, despite officials' best efforts not to make it a campaign against co-sleeping, the media emphasis was on that hazard.

The focus of the campaign, announced May 3 at a news conference held at the International Juvenile Products Show in Dallas, is instead on entrapment hazards. The Juvenile Products Manufacturing Association (JPMA) is joining CPSC in launching the information campaign with the development of pamphlets and a media project.

CPSC says it has reports of 180 deaths of babies under two years old who were placed in adult beds during the period between Jan. 1, 1999 to December 31, 2001. Ninety-eight percent of the deaths involved babies less than one year of age. Babies three months and under accounted for over half of the deaths.

Many of the incidents involved entrapment when babies fell between the bed and the wall, or the bed and another object, or with the headboards, footboards or bedframes. Some of the incidents were due to babies suffocating with pillows or blankets.

The early media coverage prompted outraged responses from groups who regarded the CPSC campaign as an attack on co-sleeping. An organization known as "Attachment Parenting International" contacted CPSC and other groups contending that CPSC's data were inaccurate and misleading. The group also alleged that the government's cooperation with the industry that manufactures baby cribs makes the whole campaign questionable.

Nonetheless, CPSC spokesmen are denying that the information campaign is about co-sleeping. While CPSC officials say that "overlays", i.e., when an adult rolls over on an infant sleeping in the same bed, still are a hazard, they are focusing on the serious hidden hazards of entrapment.

CPSC says it wants to make parents aware of the hazards they may not have heard about. Safety officials say that placing the babies in cribs and play yards that meet current safety standards could have prevented the infant deaths. 4. [4]

CPSC and JPMA will culminate their information campaign at JPMA's annual meeting in September.

New Bill Would Give CPSC Authority to Regulate Cigarettes for Fire-Resistance

Sen. Richard Durbin (D-OH) and Representative Ed Markey (D-MA) are sponsors of legislation to require CPSC to establish a mandatory standard for a fire-safe cigarette. The bill is being nicknamed the Moakley Memorial bill in honor of the late Congressman Joe Moakley, who was the original sponsor of the legislation.

Former CPSC Chairman Ann Brown, speaking as Chairman of SAFE (Safer America for Everyone), endorsed the legislation in a statement released April 25. Brown cited 900 deaths and 2,400 injuries a year allegedly caused by cigarette-related fires.

Efforts to impose a so-called "fire-safe" cigarette standard on tobacco companies began as early as 1974. CPSC was involved in a Technical Study Group mandated by Congress in 1984. In 1990, Congress passed the Fire Safe Cigarette Act of 1990 mandating development of a fire-safe test method.

In 1993 the Technical Advisory Group reported to Congress that a safety test method had been devised.

In 2000, New York State adopted legislation to require such fire-safe cigarettes by July 1, 2003. Cigarette manufacturer Philip Morris has tested a fire-safe cigarette and sold a brand (Merit) that uses a new special cigarette paper dubbed "Paper Select." The paper has bands that slow down the burn rate of the cigarette--called "speed bumps" in the industry.

Philip Morris spokesman Mark Berlinck told CPSC Monitor that the company backs the Durbin bill for a national uniform standard for cigarettes. The company wants federal preemption of state regulations, which conceivably could complicate cigarette marketing with conflicting regulations.

Advocates for a fire-safe cigarette are urging other states to follow New York's lead, arguing that other tobacco companies will be more likely to support national legislation for a mandatory rule if confronted by a hodge-podge of state laws.

Tobacco companies, which traditionally have opposed all state and federal regulation of cigarettes, have blamed careless smokers and household furniture, clothing or bedding for the problems caused by cigarette-ignited fires.

Not surprisingly, manufacturers of those products (see upholstered furniture story below) take a different view. They say, rightly so, that their products do not ignite spontaneously.

In spite of all the finger pointing, data show that such fires have declined by two-thirds (68%) since 1980, and deaths have declined by 55%. The production of more fire-resistant mattresses and furniture and the general decline in smoking no doubt contributed to the improvement. [5]

It is difficult to visualize CPSC, with its limited resources and lack of tobacco experts, taking jurisdiction over cigarettes and developing a mandatory standard. Advocates of federal regulation say such cigarettes can be made "by making small design changes--such as the use of less dense tobacco, less porous paper, a smaller diameter, a filter tip, the addition of `speed bumps' on the filter paper, and the elimination of citrates that are added to the paper to maintain burning." [6]

Although Philip Morris says it has developed such a cigarette, there is little data to show consumer acceptance of the new brand. Earlier efforts to produce such cigarettes met with consumer objections to taste and burning properties.

If the government mandates such cigarettes, there is no doubt that consumers would pay even more than they do now for cigarettes. Not only that, but a uniform national standard could result in certain popular brands dropping out of the market.

How about putting some of this energy and financial backing into campaigns to promote smoking safety?

CPSC Sets Public Meeting on Upholstered Furniture Rulemaking

If Bush nominee Harold Stratton takes office in early June, he will immediately face a complex regulatory issue--how to deal with the alleged flammability of upholstered furniture.

CPSC staff has worked mightily on the issue for many, many years. A staff briefing package issued in October 2001 amassed hundreds of pages of data, and proposed a draft standard focused on upholstery fabric flammability. Finally, the document strongly recommended that the Commission approve a staff meeting to obtain public input before moving into the proposal stage.

That meeting is scheduled for June 18-19 at the agency's Bethesda, MD. headquarters. There is sure to be maximum representation from consumer groups and industry.

The upholstered furniture issue has become increasingly complex. California's Bureau of Home Furnishings is in the process of amending its Technical Bulletin 117 to regulate the individual performance of fabrics, batting, polyester, foam and polyurethane. The proposal is now out for public comment. In addition, the new rule could require companies to assemble the components into a mockup and re-test the entire structure.

CPSC, on the other hand, designed its proposed standard with two options. Upholstery fabrics could be made to pass a 20-second open flame test, most commonly through the use of flame retardant chemicals. As an alternative, a flame-resistant internal liner could accompany fabrics that cannot withstand flame-retardant treatment.

CPSC's standard, if adopted, would pre-empt any state regulations (most notably, California's).

Last year there was much discussion about the possibility of an industry initiative that would incorporate some of CPSC's and California's proposals into a voluntary (ASTM) standard. But a few in the furniture industry are currently considering the potential benefit of support for CPSC's standard as a less costly approach than the one being proposed by California.

California's proposed regulations require much more stringent individual component testing, as well as some composite testing--methods that tend to run up costs. Proponents of the CPSC test methods say that the outcome. of such regulations would not differ significantly from their proposal--i.e, the final products would be more flame resistant. Once California adopts new regulations, it is feared, other states such as New York may follow suit.

The industry's possible retreat from its voluntary approach is disturbing to many observers. Consumers cannot win under such a scenario.

New federal and/or state regulations would drive up the cost of new furniture and limit the choice of upholstery fabrics. CPSC estimates that the cost of compliance with its proposed rule (using interliners, for example) would add about $41 to the cost of a chair and $56 to the cost of a sofa. Many in the industry say these estimates are too conservative, that costs could be much higher.

Hewlett-Packard, State Fire Marshals to Cooperate on Electronic Equipment Safety

In January 2001, CPSC Monitor carried an in-depth article about the claims of the National Association of State Fire Marshals (NASFM) relative to the flame-resistance of the outer plastic housing of inkjet printers. [7]

The group wrote an open letter to manufacturers of computer equipment calling for greater efforts to make the printers safe, when in fact CPSC's experts could find no evidence of any fire hazards associated with the outer housing of the printers.

Complicating the electronics industry's position was that certain environmental groups, mainly in Europe, but also in the U.S., were harassing manufacturers about the flame retardants and other chemicals used in the manufacture of computer equipment. The European Union was then moving to ban such chemicals in computer products based on an alleged health hazard to users and in the recycling and disposal process.

It would appear now that at least one manufacturer, Hewlett-Packard, has caved in to NASFM's demands. In a joint statement issued on April 18, 2002, the two groups pledged to work for new standards to "reduce the risk of external ignition from small open flame." [8] HP and NASFM pledged to work through the international consensus process, but recognized that since standards development is time consuming, they would also work for short-term solutions.

This move by HP seems to imply that the company will move toward greater use of brominated flame retardants in their products. As CPSC Monitor pointed out last year, NASFM's Washington lobbyist has received substantial compensation from the Bromine Science and Environmental Forum, an organization funded by chemical manufacturers. [9]

Consumers Union Has Egg on Its Face

Consumer Reports, the magazine devoted to testing consumer products for safety and quality, announced this month that it was recalling two products, a flashlight and a tire gauge, that had been sent to consumers as promotions to new subscribers.

Consumers Union, which publishes Consumer Reports, acknowledged that it had failed to test the products before making them available to consumers. The flashlight and tire gauge were components in a glove-compartment organizer kit that also contained a pocketknife, a pen and a pad of paper.

Jim Guest, president of Consumers Union, apologized to consumers and pledged to replace the kits with two books published by Consumer Reports.

The flashlight reportedly overheated and was a fire hazard, and the tire gauge sometimes gave inaccurate readings. The products were purchased from Astra International, a New York-based importer.

"This experience highlighted once again the importance of rigorous testing and evaluation," wrote Guest in a Memo to Members of CU. "Consumers Union learned a valuable lesson. We must test any product that we offer as a premium in our own labs with the same rigor with which we rate the products you see in Consumer Reports," he said. [10]

Both CPSC and the National Highway Traffic Safety Administration cooperated with Consumers Union in recalling the flashlight and the tire pressure gauge.

[1] See CPSC Monitor, Volume 7, Issue 4, April 2002--"Attorneys for Daisy Manufacturing Co. Ask for Dismissal of CPSC's Complaint Against Airguns: Charge Brown with Prejudgment."

[2] United States of America, Consumer Product Safety Commission: In the matter of Daisy Manufacturing Company, Inc., CPSC Docket No.: 02-2 "Order on Respondent's Motion to Dismiss the Complaint."

[3] "Law Brands BB Guns Firearms, Not Toys," Fox News, May 8, 2002. (Fox News' Amy Sims, Kelley Beaucar Vlahos, and the Associated Press contributed to the report.)

[4] CPSC Media Alert, "CPSC to Release New Data that Finds Hidden Hazards for Infants in Adult Beds," May 3, 2002.

[5] Fire Safe Cigarettes--What You Need to Know, produced by the American Burn Association and the Phoenix Society.

[6] Ibid.

[7] See CPSC Monitor, Vol. 6, Issue 1, January 2001, "State Fire Marshals Question Safety of Inkjet Printers."

[8] Joint Statement Issued on April 18, 2002 by Hewlett-Packard (HP) and the National Association of State Fire Marshals, (NASFM).

[9] CPSC Monitor, Op. Cit.

[10] "Caveat Emptor Hits Home," a Memo to Members from Consumer Reports. www.consumerreports.org.

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