Stratton nomination on hold in Senate.

As reported in last month's CPSC Monitor, the President's nomination of Harold D. Stratton of New Mexico to be a Commissioner and Chairman of the U.S. Consumer Product Safety Commission (CPSC) was reported out by the Commerce Committee on May 17 and sent to the floor of the Senate. His name appeared on the Senate's Executive Calendar beginning June 3.

We assumed that Stratton would be confirmed immediately, and by this time would be at the helm of CPSC. It has not happened. As a result of a feud between Majority Leader Sen. Tom Daschle and Minority Leader Sen. Trent Lott, a growing list of pending presidential nominees has been gathering dust on the Senate's Executive Calendar since early June.

As this is written, there are reports that Daschle and Lott may have worked out a proposal to break the logjam. In essence, Lott would remove his objections to the confirmation of Jonathan Adelstein, a Democrat and an aide to Daschle, who has been nominated for a seat on the Federal Communications Commission (FCC). In exchange for releasing Lott's hold on Adelstein, Daschle has reportedly agreed to allow confirmation of 14 Bush judicial appointees to circuit courts.

Lott had reportedly blocked Adelstein as retaliation for the Judiciary Committee's rejection of U.S. District Judge Charles Pickering of Mississippi, a Bush judicial nominee. [1]

Should the deal materialize, Stratton's name will most likely be among those allowed through the logjam.

CPSC Monitor is forced to observe that this treatment of Stratton by Senate Democrats smacks of hypocrisy. The same leaders who decried what they termed the callous attitude toward consumer safety of Commissioner Mary Sheila Gall, the President's first nominee for CPSC Chairman, have essentially deprived the agency of its required quorum of three members and tied its regulatory hands. The authorizing statute allows the agency to operate without a quorum for up to six months. That six-month period expired May 1, and because of the Senate's inaction on Stratton, CPSC essentially lost its regulatory function for nearly two months. (Staff on the Senate Commerce Committee acknowledged that the Senate was well aware of the May 1 deadline.)

Meanwhile, CPSC's compliance staff continues to issue "voluntary" recalls, and other career staff is completing stacks of briefing packages on other matters. It seems unconscionable that the Senate could leave CPSC without leadership for such a long time.

If the aforementioned Daschle-Lott deal materializes, Stratton should be at CPSC by the time the Senate leaves town for its July 4th recess. Stay tuned.

CPSC Conducts Meeting on Upholstered Furniture; Industry Appears to Seek Federal Action

For two days, June 18 and 19, CPSC staff conducted a forum on its proposal to regulate the flammability of upholstered furniture.

While the staff briefing package, some eight years in the drafting, proposed a mandatory standard for upholstered furniture, it also recommended that CPSC conduct a public meeting to hear comments from the industry and other players in any eventual standard. Since the meeting was not an official Commission briefing, but only a staff meeting, it could and did proceed as scheduled in spite of the lack of a Commission quorum at this time.

Observers say the meeting produced lots of complaints about the potentially burdensome costs of testing, sampling, and record keeping by industry groups. But little new information of any importance emerged.

What is new is the apparent willingness of various members of the industry and industry suppliers (such as manufacturers of fabrics, polyurethane foam, and other furniture components) to support a mandatory federal standard for upholstered furniture.

As noted in last month's CPSC Monitor, [2] industry is confronted on the one hand by a California proposal to update its Technical Bulletin 117, the state's furniture flammability regulation, and on the other by a CPSC draft standard that it views as somewhat less burdensome.

Some in the industry say they will support an eventual CPSC mandatory standard.

Marty Durbin, who represents the Alliance of the Polyurethane Industry, [3] told CPSC Monitor he expects a flammability standard to emerge eventually, whether it is imposed by CPSC or by federal legislation. [4]

Andy Counts, Executive Vice President of the American Furniture Manufacturers Association (AFMA) told CPSC in his prepared remarks that AFMA's goals include "minimizing the potential for conflicting state regulations that might complicate national sales programs or undermine economies of scale for our members and suppliers." [5]

His remarks reflect the dilemma of the small, independent and self-reliant U.S. furniture companies. In spite of years of effort to develop voluntary methods to reduce the propensity of upholstered furniture to ignite-- particularly from burning cigarettes--the industry faces the prospect of regulation by state and federal authorities. If California ultimately adopts the pending tougher and more costly amendments to its TB 117, many industry leaders would prefer to deal with a CPSC standard. Federal standards pre-empt state laws.

Counts continued: "If the goal is no longer flame-proof furniture, but furniture which our best evidence from the laboratory suggests will ignite less readily and burn more slowly, perhaps we can get together. If the perfect is no longer the enemy of the good, let's consider the proposal which CPSC staff has generated and discuss how it might be improved." [6]

Much of Counts' statement focused on the technicalities of testing to the proposed CPSC standard, and urged CPSC to set an effective date for the regulation of at least 36 months from publication of any rule. Since the industry relies on the fabric and foam industries for the materials it uses in production, Counts said that ample time is needed for those industries to understand the rule and to produce complying materials. [7]

Federal Legislation Also a Real Factor

The National Association of State Fire Marshals (NASFM), the group that first petitioned CPSC to adopt an upholstered furniture flammability standard, is now apparently looking to Congress to step into the mix if CPSC does not act.

NASFM's proposed draft legislation would go much further than furniture flammability. It reportedly includes new rules for mattresses and the entire "bedding system" (meaning sheets, blankets, comforters, spreads, pillows, etc.) NASFM also wants federal rules for candles and fire-safe cigarettes. All four of those elements--furniture, mattresses, candles and cigarettes, would be part of the eventual bill.

No bill has yet been submitted, and proponents say the draft is subject to change before sponsors are approached. They expect to have the bill introduced next year.

What About the Consumer?

Both government and industry groups who stand to win or lose in the struggle to craft federal rules for upholstered furniture appear to have forgotten the consumer in this discussion.

CPSC regards the risk associated with upholstered furniture fires ignited by small open flames (candles, matches, lighters) ripe for regulation. While currently there is an industry standard that addresses cigarette ignition of upholstered furniture, there is none for small open flame ignition.

CPSC's briefing package, dated October, 2001, states in its Executive Summary that despite declines in deaths and injuries in U.S. residential fires, the risk from small open flame ignition has not declined over time. [8]

The document cites data for 1998, in which an estimated 420 deaths, 1,080 injuries and $120 million in property damage were attributable to all upholstered furniture fires. [9]

In the same year, furniture ignited by small open flame sources caused 80 deaths, 350 injuries and more than $30 million in property damage. CPSC says "most small open flame losses, including 60 of the 80 deaths, resulted from childplay fires." [10]

The vast majority of these fires, then, by CPSC's own admission, were caused by children playing with flame sources. These children must have been unsupervised, since common sense would dictate that any adults present would soon extinguish resulting flames.

One would have to assume that the other 25% of deaths attributed to small open flame ignition in 1998 (20 out of 80) were truly accidental.

Since neither the proposed amendment of California's TB 117 nor the draft CPSC standard is yet in final form, the eventual costs of those regulations can only be estimated. Last year, in a study released by the American Textile Manufacturers Institute (ATMI), CPSC was accused of "substantially underestimat[ing] the cost of implementing such a regulation by $2 billion while significantly overestimating the benefits." [11]

The analysis was done by Glassman-Oliver Economic Consultants, Inc., a Washington DC -based economic consulting firm.

The Glassman study also raised the issue that most small open flame upholstered furniture fires are started by children playing with matches and lighters. Should upholstered furniture become regulated to the point that such fires cannot be ignited so easily, children, who will continue to play with matches, candles and lighters, will ignite other household items, the study said.

The study also reported that CPSC had under-estimated the cost of flame retardant chemicals that may be used to treat fabrics under the new standard, and the cost of compliance testing.

ATMI's analysis also charged that "the burden of the regulation will not be borne evenly throughout the economy," since low-income households would be more likely to purchase less expensive furniture. ATMI says the effect of the regulation would be to increase the cost of presently cheaper fabrics. In that case, they said, low- income consumers, who are more likely to be the victims in an upholstered furniture fire, may choose to keep older, non-regulated furniture rather than purchase the more expensive new ones.

The Monitor has observed over the years that the consumer will lose no matter who eventually writes the rules for furniture flammability.

Under CPSC's draft standard, the use of flame retardant chemicals to coat some fabrics may be necessary. These chemicals will increase the cost of furniture. FR chemicals are also said to affect the feel and appearance of the fabric. So consumers may lose aesthetic quality and choices in fabrics.

The use of flameproof barrier technology, as an alternative to the FR chemicals, is part of CPSC's draft standard. CPSC has estimated that the use of these flame retardant interliners (including materials, labor, testing and record keeping) would add about $41 per chair and $56 per sofa. However, AFMA argues that those costs would be much higher.

Who will pay these costs? Ah yes, American consumers will pay when they purchase new furniture. All of this regulation, cost and fuss is to make furniture immune from the possibility that unsupervised children will play with matches, candles and lighters.

[1] "Deal at Hand on Nominees," by Paul Kane, Roll Call, Washington, D.C. June 20, 2002.

[2] "CPSC Sets Public Meeting on Upholstered Furniture Rulemaking," CPSC Monitor, May 2002 - Vol. 7, Issue 5.

[3] Polyurethane makers supply chemicals to make the foam for furniture construction. The four major companies are Dow, Bayer, Bass, and Huntsman.

[4] Telephone conversation with Marty Durbin of the American Plastics Council on June 20, 2002.

[5] Statement of the American Furniture Manufacturers Association (AFMA) before the U.S. Consumer Product Safety Commission, June 18, 2002.

[6] Ibid.

[7] Ibid.

[8] Briefing Package, U.S. Consumer Product Safety Commission, Upholstered Furniture Flammability Proposed Standard, October 2001.

[9] Ibid.

[10] Ibid.

[11] "Study Finds Cost of CPSC's Draft Flammability Standard Underestimated by $2 Billion--Benefits Overestimated," American Textile Manufacturers Institute, Washington, DC, Jan. 23, 2001.