Saying Thank You to a Colleague and Friend

This week, the product safety community says “Good Bye” to Ann Marie Buerkle, who is leaving the CPSC Commissioner’s seat after seven years of service.  These good-byes should also be accompanied by an equally loud “Thank You!” for the efforts she made to steadily steering the agency during the past several years.

I had the honor of serving with Commissioner Buerkle and grew both to respect her as a colleague and to count her as a friend.  Commissioner Buerkle brought both substantive and political experience to the agency.  But most importantly, she brought a level of mature judgement and a well-honed sense of fairness that informed the decisions she was called on to make.

She has often said that she is more interested in the process than the outcome. If the process allowed all points of view to be actually and fairly considered and was scientifically and technically rigorous, then the outcome could be justified and defended.  Her votes on various issues before the Commission reflect this philosophy.  As just one example, she refused to support certain penalty actions (for which she was unfairly criticized in some quarters) because those penalties were based on nothing more than a “bigger is better” philosophy rather than a coherent penalty policy.

I certainly did not agree with every position Commission Buerkle took but appreciated that she was always willing to meet, to listen, and to consider and even reconsider her positions based on the evidence. The Commission is now entering a time when the commissioners will have to either find common ground or accomplish little. I suspect that Commissioner Buerkle will be greatly missed and quite soon.

 

 

Skewing the Facts and Misleading the Public

In a recent story (apparently instigated by a former CPSC commissioner whose reappointment hopes were thwarted by the 2016 election), the Washington Post asserts that the Consumer Product Safety Commission’s leadership is not protecting the public.  The Post article skews the facts to present an inaccurate picture to which a response is warranted.  After much “tugging and pulling” the newspaper today agreed to print my Letter to the Editor attempting to correct some of the innuendos in the story.  Here is a link to the letter:

https://www.washingtonpost.com/opinions/the-real-story-with-the-consumer-product-safety-commission-and-that-stroller/2019/04/14/627a800a-5bb6-11e9-98d4-844088d135f2_story.html?utm_term=.80efcd338ddb

The story involves a popular jogging stroller with a quick release wheel feature.  Injuries occurred, not because the quick release malfunctioned, but when the consumers did not properly engage the quick-release.  When the company refused to recall the strollers, arguing that they were not defective, the CPSC brought a lawsuit to force a recall.  In the CPSC complaint, the agency argued that the strollers were defective because some consumers “may not read, may fail to follow or may misunderstand the instructions” on how to use the quick release. Importantly, the agency did not argue that the instructions were inadequate or confusing but instead that some failed to properly follow them and that this made the product defective. Under the CPSC’s theory, the potential for a consumer to misassemble or misuse a product, even with clear instructions and adequate warnings, is enough to render a product defective.  The story discounts the fact that the product also met all applicable safety standards.  If those standards are not adequate, the correct approach is to change the standard, not unilaterally declare products defective. (The three commissioners voting to bring suit did not suggest changing the standard, nor did the CPSC staff.) Injuries associated with consumer products are always very regrettable.  But those injuries, when they come from misuse of a product or failure to follow clear warnings and when the product meets all safety standards, should not, by themselves, necessarily render a product defective.

The story goes on to suggest that, upon assuming the chair, Acting Chairman Ann Marie Buerkle worked to withhold information about the investigation from her fellow commissioners.  That story-line does not comport with my experience as a CPSC commissioner.  All commissioners can meet with staff at any time—my own practice was to meet with the director of compliance on a weekly basis to be briefed about on-going investigations, and that was also the practice of other commissioners.  The staff, the majority of whom are dedicated career employees, do not withhold information from commissioners.  And while politics should not be an issue, it is worth noting that both the director of compliance and the executive director of the agency, two senior staffers who were necessarily involved with the matter, were appointed by an earlier President Obama-nominated chairman.  Finally, it must be remembered that the settlement of the case, which the Post faults, was negotiated by career staff and this was the recommendation put to the commission.

As I stated in my Letter to the Editor, Ann Marie Buerkle is very well qualified to be Chairman of the CPSC.  She is a medical professional (an important skill set no other commissioner has had), an experienced lawyer and a former Member of Congress.  She is the mother of 6 children and the grandmother of many—in other words, a real consumer.  Having served with Ms. Buerkle as a colleague on the Commission, I know that she listens to and carefully considers all arguments and information provided her before making decisions.

The real gravamen of the story is that there are those who do not agree with some of the votes that Acting Chairman Buerkle has made and that disagreement has spurred attacks on her character such as were made in the Post article.  However, policy disagreements should be debated at the policy level and those disagreements should not then be used to sully the reputation of a dedicated public servant.

 

 

 

 

 

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New Leadership Sets New Direction at CPSC

 

Earlier this week, the United States Senate confirmed Peter Feldman to be a CPSC commissioner, to fill the seat vacated by Joe Mohorovic. Mr. Feldman’s term runs through 2019 and he also has been nominated for a full seven year term to begin thereafter.  Hopefully, the Senate will quickly confirm him for this additional term.  At the same time, one hopes that the Senate will also complete its unfinished work and confirm Acting Chairman Buerkle both to be permanent chairman of the agency and to an additional term.

Peter Feldman comes to the commission after many years of public service in the legislative branch. Most recently, he served as counsel to the Senate Committee on Commerce, Science and Transportation, where his portfolio of issues included legislation and oversight of the CPSC.  He brings a wealth of relevant and welcome experience to the agency.

Mr. Feldman’s arrival at the CPSC is especially timely since there has not been a full compliment of commissioners since 2017.  He now joins another new commissioner, Dana Baiocco, who was confirmed this past summer. One of the first issues he will be called on to consider is the Fiscal Year 2019 Operating Plan setting out budget and policy priorities for the upcoming fiscal year.

While the operating plan does not make dramatic changes in the direction of the agency, it does include a number of interesting and welcome activities that will put the agency on a more stable path.  The plan reflects the acting chairman’s priority to update and expand the agency’s information gathering capabilities.  For example, after several years of talk but no action, the agency will be looking at how the retailer reporting program can be revamped to provide meaningful and useful information about consumer injuries. Important work to better measure the effectiveness of agency recalls is included in the plan.  The plan anticipates a briefing package addressing a pending petition on small powerful magnets and provides an opportunity to clean up the mess the agency created here in its zeal to put ends above means. The plan includes work to better monitor e-commerce platforms, where there is the potential for real harm to consumers but where the agency’s efforts to date have been not especially effective. Work on the Internet of Things and on other emerging hazards is also called out.  Finally, in a truly refreshing change, the plan recognizes that stakeholder participation and involvement is both welcome and essential for effective regulating.

Acting Chairman Buerkle has provided needed steady and mature leadership to the agency.  Under her leadership, Mr. Feldman has an exciting opportunity to work to carry out the priorities of the agency to protect consumers from unreasonable risks while assuring that public resources are not frittered away on ill-advised litigation and open-ended overly-broad regulatory activity.

 

 

A Welcome Fresh Perspective at the CPSC

 

After a nearly nine month delay, the United States Senate earlier this week finally voted to confirm the nomination of Dana Baiocco to be a commissioner of the CPSC.  With this vote, one of the strange aberrations of the Trump Administration ceases:  the 3-1 Democratic majority that the Administration and the Senate has allowed for 18 months now comes to an end.

With Ms. Baiocco’s confirmation, the balance of power on the commission will be evenly split between commissioners from the two political parties.  There is another open seat (which the Administration, inexplicably, does not seem in a hurry to fill) which, when filled, would give the current Chairman a 3-2 majority and allow her finally to begin implementing the regulatory priorities of the Administration.

But equally important, Ms. Baiocco’s confirmation brings fresh perspectives and new ideas to the agency, which sometimes has difficulty embracing different approaches to regulatory issues.  Perhaps she will not accept the regulatory sluggishness that can come when the agency is challenged to rethink its approach to issues.

It is important that the Senate not think its work is done with respect to the CPSC.  Pending before it is the nomination of Acting Chairman Ann Marie Buerkle for permanent chair and another term.  Chairman Buerkle has proved to be a reasonable, thoughtful and steady leader of the agency and she deserves to be confirmed.  And it is hoped that the Administration may, at some point soon, nominate another commissioner to the existing open seat, giving the Chairman a working majority.  In the meantime, Ms. Baiocco is a very welcome addition to the commission.

 

A Wish for the Holidays

 

I have been reading with growing dismay articles that question the commitment of CPSC Acting Chairman Ann Marie Buerkle to protect consumer safety.  Those articles are ill-informed, mean-spirited personal attacks that push an agenda that has more to do with partisan politics than it has to do with consumer safety.

What is especially distressing is that some of this is coming from within the Commission itself.  Consumer safety has always—and it should—engender deep emotion and strong commitment. However, it is critical to the formation of good public policy that differences in points of view are listened to and respected.  Civil and respectful debate must be a part of our process for formulating public policy.  I worry that some, in their zeal to push a position, have forgotten that civil discourse and honest disagreement are the foundation of our government.

Some have accused Acting Chairman Buerkle of being an “extreme outlier” and “very extreme”.  They say that she represents a “radical departure” from the agency’s safety mission.  They also accused her of voting with industry 100% of the time. What silliness!

An analysis of her votes and the statements explaining them shows that she has taken principled positions that are fully appropriate. Most of her votes diverging from her colleagues have been on procedural and process grounds.  For example, she has opposed certain civil penalties, not because she believed the company should get a pass but because of the lack of rigor and consistency in the way the agency imposes penalties. She has been critical of the commission’s penalty policy that seems to be based only on “bigger is better” and not on helping regulated entities understand how to comply with a statue that is judgement-laden and whose interpretation it seems changes with the political winds.   In no way can her positions be equated with “dismantling consumer protection,” but that is what critics say.  She criticized the commission’s rule on phthalates not because she wants to support chemical companies (oh, come on. . .) but because she is rightly concerned by the direction and willingness of earlier political leadership to ignore current data.  The portable generator rule raises real questions of jurisdiction and resources.  If a majority of commissioners wish to ignore these issues, so be it, but why is it wrong to point out the problem? Her critics have either not read her statements or do not wish to hear facts that get in the way of predetermined political views.

Acting Chairman Buerkle is perhaps the most qualified person ever to be nominated to be chairman of the CPSC.  While she brings solid legal skills to the office, notably, she is also a trained health professional—a skill set never before on the commission—and so brings a point of view that is essential to the important issues the agency must deal with.  Finally, she is the mom of six kids.  If there was ever a real consumer—as opposed to a political partisan—it is her.

My holiday wish is that the debate over the direction of the CPSC can be conducted honestly at a policy level.  Questioning the character of a dedicated public servant in order to advance a political agenda is dispiriting.  With respect to the CPSC, many have deserved coal in their stockings for too long.  It’s time to say these tactics are not right.

 

 

 

 

 

 

 

Welcoming New Leadership at the CPSC

Although it took a while, new leadership has come to the Consumer Product Safety Commission.  After a flurry of last minute activity—and a rejection of the Administration’s direction concerning new regulations—earlier this week, Elliot Kaye stepped down as agency chairman. He has announced that he plans to remain as a commissioner. Commissioner Ann Marie Buerkle, who was recently elected as agency vice chairman, now takes over as Acting Chairman of the agency until a permanent chairman is nominated by the President.

Trained as both a nurse and lawyer, Chairman Buerkle brings the type of experience the statute contemplated when it directed that commissioners be appointed by reason of “background and expertise in areas related to consumer products and protection of the public. . . .”  Having a former medical professional lead the agency will be an interesting and useful change of perspective.  And as a former Member of Congress from New York (where she served on the Committee on Oversight and Government Reform), she can work to mend the current strained relationship the agency has with the Hill.

Chairman Buerkle will not have a working majority as she seeks to reorient the agency.  For readers who keep score, here is the commissioner line-up:

• Commissioner Marietta Robinson (D) – term ending October 2017
• Acting Chair Ann Marie Buerkle (R) – term ending October 2018
• Commissioner Joe Mohorovic (R) – term ending October 2019
• Commissioner Elliot Kaye (D) – term ending October 2020
• Commissioner Bob Adler (D) – term ending October 2021

Nevertheless, Chairman Buerkle can make incremental changes even without a working majority of commissioners.  Perhaps the most significant will be to let all stakeholders—consumers groups and industry alike—know that their perspectives are valued.  Changing the current philosophy with respect to product sellers from “us v. them” could go a long way to bringing the agency back to a collaborative relationship that focuses first and foremost on solving safety problems and less on punishment and distrust.

It was a real pleasure to have Chairman Buerkle as a colleague when I was a member of the commission.  She is thoughtful, listens carefully and truly wants to understand how agency actions impact folks outside the Washington beltway. As we have heard before, change is good.