Ready for an Onslaught?

Is the American economy ready to face an onslaught of new regulations? Here at the CPSC, we’ve been regulating non-stop for quite some time now. And although we’ve heard a message from the White House that we need to be careful about how we regulate—minimizing the negative effects on consumers and small businesses—we haven’t really listened to this message. And now that the Commission is down to a two-to-one partisan split, are we going to ramp up regulating even more? As Richard Rahn explains here, if our small agency can and will continue to crank out costly regulations, imagine what the big ones will do.

Talking Business

Yesterday, I had the pleasure of speaking at the 13th Annual Legal Reform Summit, hosted by U.S. Chamber of Commerce’s Institute for Legal Reform. I discussed regulatory review, cost-benefit analysis, and how little of each is happening at the CPSC.

Given the organization’s long and illustrious history, naturally, I wasn’t the first public official to speak to a Chamber audience about the administrative state. Here’s what one visitor had to say about 18 months ago: “[I]f there are rules on the books that are needlessly stifling job creation and economic growth, we will fix them.”

That speaker was President Obama, outlining an executive order on regulatory review. The order tells agencies like the CPSC to look at our rules and shed whatever wasn’t working or necessary. It envisions a regulatory system that “promot[es] economic growth, innovation, competitiveness, and job creation.” The order urges regulation “based on the best available science” that can “promote predictability and reduce uncertainty,” using “the best, most innovative, and least burdensome tools,” and taking “into account benefits and costs.”

The CPSC has failed every aspect of that order. Key recent rules stifle growth and discourage innovation. They also stifle competition and slant the playing field toward the biggest businesses. About the only jobs they create are for lawyers.

Here’s hoping that, regardless of what happens November 6th, we’ll see a renewed effort from the White House to bring CPSC into compliance with prudent government. Here is an article about my presentation at this meeting.

Voices from Outside the Echo Chamber

A regulator’s job description should include a requirement to get out of the Washington echo chamber, from time to time, to visit and talk with folks who have to live with our mandates. That is one of the best ways we have to gauge if regulations make sense out in the real world and if there are any issues surfacing as companies work to comply with the law. Last week I was on the road, having just those kinds of conversations.

The ABC Kids Expo was a wonderful opportunity to talk one-on-one with smaller companies who make a wide variety of infant and children’s furniture and other products. Without exception, these companies expressed a strong commitment to safety. This makes sense because many of the companies represented were started by entrepreneurial parents who saw either a need going unmet or a way to improve a product. While these companies were very pleased and eager to get whatever information we can offer on how to comply with our rules, I also heard concerns about both the process of writing the rules and the substance of the rules themselves. For example, the agency, working with the voluntary standards bodies, has been issuing the Congressionally-directed durable infant and toddler products regulations at a rapid pace.  Yet there is growing concern, which I heard expressed again last week, that this is resulting in a process that is less rigorous, at times more arbitrary and more error-prone than it used to be. Certainly, this is something that warrants greater attention at the CPSC.

I also spent time at the Specialty Graphic Imaging Association Expo, talking with the association’s Board of Directors, conducting a safety seminar and walking the show floor talking with individual members of this very complex and dynamic industry. Here are some of the key points I took home:

• Overall, component testing is not working as the cost saver we hoped for this industry;
• CPSIA-required testing is posing challenges in terms of expense and frustration as companies test for substances that are not present but do not fit into the exemptions; and
• Testing variability among labs, in particular with respect to phthalates testing, is adding time and expense to the process, and is consuming resources in an unproductive manner.

While there are some very large players, the bulk of the industry is made up of small, domestic companies. Because of the nature of the business, the small batch testing exemption does not apply. One small business owner, with fewer than 10 employees, told me of needing to add an employee to do nothing but administer and document his testing and regulatory compliance program. Another told me that since children’s garments were not a major part of his business, he has decided just to get out of that aspect of the business altogether rather than have to hassle with all the rules.

I am concerned when I hear reports like that. Congress directed us to look at ways to cut costs. I suspect that, if and when we get serious with a commitment to action, taking that directive seriously, rather than just playing charades with that directive, we will find that there is ample opportunity to provide some real relief. In the meantime, with no boost to safety, the clock is ticking on the existence of numerous U.S. based low-volume businesses and their employees’ livelihoods.

Western Walkabout

I believe that one of regulators’ most important responsibilities is to assess the impact of the regulations they issue. A great way to do that is to get out of Washington and talk with the folks who have to live and work under the regulations we put out. I always welcome the opportunity to do that.

Recently I was in California and Arizona talking with various groups about how we are doing—both what we are doing right and what needs to be improved. In the “what we are doing right” column, there was appreciation that people in Washington would actually listen to concerns and talk candidly about how best to address them. In the “room for improvement” column, I heard strong concerns about the high costs of complying with regulations that are confusing or do not necessarily address real safety issues.

Here is an example. I visited an apparel manufacturer who has never had any safety violations or issues. They told me that, over the past 10 years, the average wholesale cost of a garment has decreased by about 50% and that costs increased by over 15% during the same time . The testing costs mandated by the CPSC under the CPSIA over the past three years have increased costs by an additional 3.5%. That added cost is an average: it’s much higher for small production runs. In fact, I was told that the testing costs for small runs “are killing us” and that this company has stopped doing small runs of products. In this case, the consumer loses: less choice and not necessarily any additional safety.

I also had the opportunity to visit with the Arizona Chamber of Commerce, doing more listening than speaking. The message I got was that businesses will support regulations that are based on sound science, are cost effective, and that advance a real safety goal. Unfortunately, some recent regulations do not meet these criteria so it is no wonder that we hear growing concern.

To me, this growing concern points to a system that is not operating in the public interest—that is, providing the appropriate level of safety in the most cost-effective manner. We need to fix this.

Postcard from the Subcontinent

Greetings from Bangalore, one of India’s principal textile and apparel manufacturing centers. This week I have been in both India and Bangladesh, advocating product safety to the region’s garment manufacturers. Here are some quick impressions:

• The textile and apparel industry is very important to the economies of India and Bangladesh. Most of the apparel Americans wear is imported and more and more of of that clothing comes from these two countries. In fact, Bangladesh is America’s fourth largest supplier of apparel, and India follows right after.

• My message of pushing safety up the supply chain has been well received in both countries. The Bangladesh conference where I spoke had more than 350 attendees, with many turned away because it was oversubscribed. The demand for the information we were giving was so great that the industry is already talking about another safety conference within the year. The turnout here in Bangalore was very large as well.

• Garment manufacturers, suppliers, and lab experts repeatedly expressed their appreciation that a senior government official would come this distance to discuss and explain the new and complex U.S. consumer laws. The level of official U.S. government engagement in this dialogue drove home the importance of product safety to this audience. Clearly, both the message and the messenger are important.

I was impressed by the eagerness of attendees to learn the rules and get it right. This translates into greater safety for American consumers.

Regulatory Malpractice

In a decision that surprised few, the CPSC voted today to ignore common sense and regulatory conscience. We witnessed a majority putting its last grasp of political power ahead of doing what was right.

In 2008, Congress required that we put in place a rule telling the regulated community how to test and certify that the products they make meet the relevant standards. The deadline Congress imposed has long since passed, but we all agreed that the details of the rule proved much harder to write than its basic idea did. Staff put much time and effort into a rule with some solid pieces that I could support. Then the majority, all behind closed doors, summarily dismissed these changes and determined they knew better than our experts. I cannot support their changes, and I cannot ignore their tactics.

The way the majority has handled this rule is, in my opinion, regulatory malpractice. They ultimately didn’t listen to staff, they really didn’t listen to Congress, they didn’t sincerely listen to the regulated community, and they certainly didn’t listen to their fellow Commissioners. All parties pointed in the direction of re-proposal so that we could hear and learn from public comment on the significantly changed rule and the new law surrounding it. Instead, the majority seemingly pushed this through because they soon would not be a majority.

Their reckless disregard for the value of public input in writing regulations is stunning. Other agencies have sought extra public comment when proposals or facts changed. Here, we had a new law change the framework supporting a rule, and, still the majority said we will listen to public comment only after we vote out the thing the public will be commenting on.

The majority is quick to suggest that seeking re-proposal is seeking delay. That’s pure fiction. I offered an amendment to re-propose this rule in light of the statutory changes Congress made, to make the rule better and more likely to stand up in court. Under my proposal, the rule still would have taken effect within the same timeframe as the rule passed today. The majority had a chance to get this done better and faster. Instead, they blew it.

My heart aches for any family who has lost a child due to a faulty consumer product. The pain they feel can never be dismissed or diminished. That pain, however, cannot justify irrational decision-making or misuse of power.

There’s an old lawyer adage: When you have the law on your side, pound the law; when you have the facts on your side, pound the facts; when you have neither the law nor the facts on your side, pound the table. The table-pounding by my colleagues today speaks for itself.

This arrogant dismissal of input from both peers and the public on such an important vote betrays the public trust we bear to implement statutes fairly, openly, and responsibly.

Radio Interview on Over Regulating Government

Last week I talked with Hugh Hewitt, a nationally syndicated radio show host, about government regulation run amok. Hugh asked me if I thought the CPSC’s new regulations were straining an already struggling economy. I wholeheartedly agreed, and discussed (again) how the agency is not doing the required leg work before issuing rules. I will continue to work to change the poorly-thought-through rules now being implemented at the Commission. Click on the link below to listen to my interview with Hugh.

Hugh Hewitt Interview 9-13-11

Majority’s Plan: Ram it through while we can

The past three days in this blog I have discussed my disagreements with the three-member majority on the Commission about the pending testing and certification rule they plan to ram through in October.

• The proposed rule applies a one-size-fits-all approach to third-party testing that is guaranteed to be a misfit rather than requiring third-party testing where it is the most necessary (i.e., where the risk is highest);
• The proposal needlessly sets detailed definitions of a “reasonable testing program” in regulatory stone; and
• The voluntary component part testing rule—which holds the promise of actually lowering costs and for which work was completed some time ago—has been needlessly held back while we work on the testing rule.

I also question the insistence on rushing this flawed product through. H.R. 2715, passed just weeks ago, expressly instructed us to consider the costs of our testing rules and get public feedback on how to mitigate those costs while still ensuring the safety of children’s products.  It would make sense to get that information before we issue the rule, but the three-member majority doesn’t want to do that. I have to ask: If we don’t have time to get it right the first time, when are we going to have time to fix it?

Congress addressed another problem that I had with our proposed testing rule. The CPSIA required companies to submit “random” samples of their products for testing, but didn’t define the term “random.” It would have been good for the Commission to interpret “random” to mean that manufacturers couldn’t rig the game by choosing “golden samples” they knew would comply.

Our proposal, however, did not take that plain-language approach. It read “random” in a much more technical, complicated sense that might have meant lots of money for statisticians but little or no safety benefits beyond those of a common-sense reading.

In H.R. 2715, Congress resolved this dispute. The new law makes clear that Congress intended to prevent the cherry picking of samples by striking the word “random” and replacing it with “representative.” We could have done this by interpretation, but we chose to let others clean up our mess after the fact. Sound familiar?

 So:

• Congress has expressly informed us that the majority was mistaken on at least one key aspect of the testing rule.
• The new law re-shapes the landscape to require us to look at ways to reduce costs. 
• The proposed testing rule has serious flaws that will make it more burdensome than it has to be and less effective than it could be.

Given all this, prudence indicates the path forward. We should take a few moments to re-examine what we’re trying to accomplish and how we’re trying to accomplish it. If we do that openly and sincerely, we will arrive at a better product.

Instead, because three members of the Commission want to do all they can while they still have their majority, they are poised to foist a misguided, misconceived, and likely expensive regulation on an already fragile economy. All with the promise that sometime in the future it could be fixed.  Man up and fix it now.

Ready…Fire…Aim

I recently wrote  about my hope that the majority of the Commission would seek and receive public input on our pending periodic testing and certification rule and the costs it will impose before we hand that rule down. I now know that hope was in vain, and three Commissioners will insist on forcing the rule through on the promise that the Commission will fix it as needed over the next year. Perhaps I was naïve to hope that the country’s economic worries, Congress’s direction in H.R. 2715, President Obama’s urging in his Executive Order, our staff’s practical concerns, and just plain common sense might steer the majority away from a course that is both irresponsible government and inconsistent with the spirit of the new law. 

It is now apparent that the final rule will be before us shortly, and the contents of that draft final rule have been predetermined by the majority.  Without getting into the minutiae of the rule, I believe there are fundamental principles it needs to reflect to be effective in balancing consumers’ needs for reliably safe products and businesses’ needs for regulation that places only as much burden as is necessary to meet our duty to consumers.

When the proposed rule came to the Commission in April of 2010, I worried the language did not strike that balance and, actually, made very little attempt to do so.  In fact, when three Commissioners voted down my suggestion that we consider the costs of the proposed rule and regulatory alternatives to meet the objectives of the statute, they declined even to ask about the consequences of the action they are so eager to take.  In the 17 months since, we’ve had clear messages from both Congress and the President that we should consider the costs and benefits of our actions and work to minimize the former while maximizing the latter, but three Commissioners have decided to summarily ignore those calls for common sense.   

The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires that, before a company first introduces a children’s product to the market, it send the product to a third-party lab for compliance testing. It also requires the same third-party testing whenever there is a material change in a product.

The CPSIA further requires periodic testing for children’s products. This means that, as long as a company makes a particular product, it has to test that product at regular intervals to ensure it still complies with all relevant laws and regulations, even if nothing about the product has changed.

The CPSIA, however, gives CPSC the flexibility to decide, based on risk, how and when companies can do their periodic testing in-house and whether they are required to use a third-party lab. Our current proposal requires periodic third-party testing for every children’s product, continuing our recent trend of clumsy, one-size-fits-all regulation that imposes heavy burdens on businesses large and small while doggedly refusing to consider costs, risks, or benefits.

For some categories of children’s products, of course, third-party periodic testing makes sense. It makes sense where the risk is highest, such as for products that very young children are in close contact with for extended periods of time.  However, when a child’s interaction with a product is more distant, intermittent, or incidental, third-party testing may not be necessary or may not need to be done with the same frequency. 

Different treatment for different risks should be intuitive. Any mother would tell you she’s more concerned about the safety of her child’s pacifier than she is about the brass knob on the drawer of a dresser that happens to be in the child’s bedroom. However, three Commissioners are eager to ignore that wisdom and treat the pacifier and the brass knob identically for third-party periodic testing. Not only does this fly in the face of common sense, it also wastes CPSC’s limited resources.

Our new law (H.R. 2715) grasps this common sense. Under it, we can give small businesses exemptions or lower-cost testing alternatives unless they make any of six specific materials or products: lead paint, cribs, pacifiers, small parts, children’s metal jewelry, walkers, and durable infant/toddler products (like high chairs, bath seats, and play yards). In this new law, Congress recognizes that the products on that list are a greater risk and should face more scrutiny. Why shouldn’t we do the same? The CPSIA allows it, common sense suggests it, Congress’s most recent law mirrors it, and resource limitations urge it, so let’s focus the most attention on the biggest risks, rather than setting a bar for the highest risk product and then mandating every other product meet the same demands. 

Regular readers of this blog will know that I am primarily concerned about two things: the safety of consumers, and the unnecessary costs of the regulations we impose.  My concern for costs is at its lowest when risk is at its highest.  If a company is making pacifiers, I want those pacifiers to go through the tests necessary to make sure they’re safe.  I don’t want the tests to be any more expensive or burdensome than they need to be, but whatever costs are necessary are necessary. Conversely, where the risk is lower (if it exists at all), in-house production testing or other QA/QC techniques may be the appropriate way to make sure the products continue to comply.  

This risk-differentiated approach is what I will be looking for in our periodic testing and certification rules.  One-size-fits-all fits no one well.  Let’s tailor the requirements to the risk and require third-party periodic testing where it will make a difference in safety, not just cost.

Keeping Equality in Business

In honor of the 91^st anniversary of the ratification of the 19^th Amendment, guaranteeing women the right to vote, President Obama has proclaimed today “Women’s Equality Day.” As someone interested in seeing America continue to be a place of hope and prosperity, I applaud the message his proclamation sends.

In particular, I am grateful to know that President Obama shares my concern about the ability of women to pursue their dreams of self-reliance by owning their own businesses. Earlier this month, I wrote in The Hill about how the destructive effects of CPSCs most recent mandates (effects that come without demonstrable safety benefits) are disproportionately affecting women-owned businesses.  I have also written in this blog about how the actions of this agency closed a small, woman-owned business making slings for no good reason.

Because they are frequently smaller, newer companies—sometimes just a mother who started making her own toys and kids clothing—women-owned businesses lack the resources larger companies have to absorb the substantial costs of our regulations, making it impossible for them to remain and compete in the marketplace. In his proclamation, President Obama writes that his administration is “working to ensure that women-owned businesses can compete in the marketplace.” I hope my colleagues at CPSC take this message to heart before issuing  more costly regulations without real benefits.