The Washington Post today picks up an earlier Chicago Tribune story on the Consumer Product Safety Commission’s rules to create the product safety complaint database, a straightforward, tit-for-tat journalistic accounting of the disagreements. We could grouse about the major media covering the excesses of the Consumer Product Safety Improvement Act after only the damage is done, but at least there’s journalism being committed.

Today’s article mentions an issue that the National Association of Manufacturers has emphasized: The CPSC’s definition of the “reporters” who can submit recognized complaints to the database is much broader than the definition Congress established.

In what could yet develop into an obstacle for the new system, a Republican congressman who is in line to become the chairman of the committee that spawned the database legislation said the rules for the database were tilted against business.

“Several provisions of the staff-proposed final rule run contrary to the intent of Congress and the clear and unambiguous language of the act,” Rep. Joe L. Barton (R-Tex.) said in a letter to Tenenbaum.

Barton is seeking to become the chairman of the House Energy and Commerce Committee, which under Chairman Henry Waxman (D-CA) cheered on the rigid, expensive and unworkable rules that have driven ATVs and bikes out of the market, clothes out of thrift stores, children’s book out of libraries, and home-based businesses out of existence. The committee never engaged in serious oversight of the agency and the Consumer Product Safety Improvement Act during the 111th Congress, and we expect that to change no matter who the new chairman is.

Barton’s letter is available here.

Stephen Lamar, executive vice president of the American Apparel & Footwear Association, is testifying this morning before a Senate Commerce Committee’s subcommittee hearing, “Oversight of the Consumer Product Safety Commission Product Safety in the Holiday Season.”

Although speaking on behalf of the apparel and footwear industry, Steve’s prepared remarks are right in line with the points the National Association of Manufacturers has raised since the 2008 passage of the Consumer Product Safety Improvement Act (CPSIA). We’re glad he reminded the committee members of manufacturers’ diligent efforts to ensure the safety of consumer products, and of industry’s support for additional funding and staffing for the CPSC during the congressional debates.

Still, there can be no doubt the legislation does not comport with the real word. In other words, what an expensive, jobs-killing message. From Lamar:

It goes without saying that industry, consumer advocacy groups, bloggers, the media, and various other stakeholders across the spectrum have become more engaged than ever in product safety.

Regrettably, the legislation also mandated a series of controversial changes to the nation’s product safety rules that have created endless confusion, extensive burdens, huge costs, job losses, and irreparable damage to the business community. In many cases, these adverse consequences have come without improvements in product safety or public health. Among other things, the law mandated very strict lead and phthalate content restrictions. It required certifications of compliance for all consumer products for all safety standards, mandating third party testing for those standards involving children’s products (defined as 12 and under). It created a public database of product safety incidents. It authorized enforcement by state attorneys general and created whistleblower provisions. While many of these provisions reflect good intentions, the language of the CPSIA makes many of them difficult, if not impossible, to implement and enforce. Tight deadlines, rigid definitions, retroactively applied standards, requirements that do not reflect risk, and a “one size fits all approach” are all among the many problems that have made CPSIA implementation
challenging.

His testimony addresses one important issue that would make most people’s eyes glaze over, lead substrate. While “consumer activists” can speak broadly and high-mindedly about risks, threats and safety, manufacturers must tackle practical considerations making consumer products.

Steve closes with eight recommendations on product safety, many of which will require Congressional action in 2011.

Stephen Lamar’s prepared statement is here, and the hearing is being webcast here.

Senate Commerce Committee’s Subcommittee on Commerce, Science, and Transportation has released the witness list for its hearing Thursday, “Oversight of the Consumer Product Safety Commission:  Product Safety in the Holiday Season.” It’s a reasonably balanced list, starting with the inclusion of Commissioner Northup, who with Chairman Tenenbaum could provide a good pro-and-con discussion of the just-adopted rules for the (anti-business, anti-consumer) consumer product safety database.

We’re pleased that Steve Lamar of the American Apparel and Footwear Association will be available to provide the manufacturers’ perspective.

Witness Panel 1

* The Honorable Inez Tenenbaum, Chairman
Consumer Product Safety Commission
* The Honorable Anne Northup, Commissioner
Consumer Product Safety Commission

Witness Panel 2

* Ms. Rachel Weintraub, Director of Product Safety and Senior Counsel
Consumer Federation of America
* Mr. Steve Lamar, Executive Vice President
American Apparel and Footwear Association
* Ms. Jill Chuckas, Board of Directors, Handmade Toy Alliance
Owner, Crafty Baby, LLC
* Dr. H. Garry Gardner FAAP
Chair, Committee on Injury, Violence and Poison Prevention
American Academy of Pediatrics (continue reading…)

We’re still waiting to learn the witnesses for Thursday’s hearing before the Senate Commerce Committee’s Subcommittee on Consumer Protection, Product Safety, and Insurance Subcommittee, “Oversight of the Consumer Product Safety Commission: Product Safety in the Holiday Season.” A hearing limited to witnesses from officialdom would be a disappointment, oversight-lite.

We hope for probing questions about the CPSC’s approval last week of a fundamentally flawed product safety database. The Washington Times editorialized on the new federal regulation, “CPSC’s database of doom.” The editors write:

The Consumer Product Safety Commission finalized a new rule Nov. 24 that abandons both consumers and safety. Trial lawyers and unscrupulous business competitors, though, made out like bandits. American manufacturers and tradesmen are the ones left with empty pockets….[snip]

Trial lawyers pushing class-action suits could gin up hundreds of anonymous complaints, then point the jurors to those complaints at the “official” CPSC website as a way to feign the legitimacy of their theories that a product in question caused vast harm. “The agency does not appear to be concerned about fairness and does not care that unfounded complaints could damage the reputation of a company,” said Mrs. Nord. “The majority approach [on this and related rules] has imposed unnecessary costs on consumers, has limited their choices, has shut down businesses and has forced safe products off the market.”

Commissioner Nord correctly analyzes the troubling attitude of the majority commissioners, and The Washington Times makes a strong argument: The public is not served by a $29 million anonymous smear sheet.

Also, thanks, WT, for the mention of the NAM’s work on the issue.

A Senate Commerce subcommittee next week will hold a lameduck session hearing to review the Consumer Product Safety Commission’s operations.

Oversight of the Consumer Product Safety Commission: Product Safety in the Holiday Season
Dec 02 2010 10:00 AM
Russell Senate Office Building – 253
WASHINGTON, D.C.—The U.S. Senate Committee on Commerce, Science, and Transportation announces the following Consumer Protection, Product Safety, and Insurance Subcommittee hearing titled Oversight of the Consumer Product Safety Commission:  Product Safety in the Holiday Season.

Given the seasonal tie-in announced in the title, we’re not terribly hopeful that there will be probing, aggressive oversight at the hearing. Still, in light of the Commission’s action today in approving the product safety complaint database, we suggest the following question: “Madame Chairman, the legislative history of the Consumer Product Safety Improvement Act was very clear in explaining Congress’ goals with the product safety database, that is, who qualified as ‘reporters’ able to post to the database. Yet the CPSC staff and now the majority of the Commission have dramatically expanded that definition in way that will encourage activists, trial lawyers and others to register complaints against entirely safe products. And your final rules makes it difficult for manufacturers to effectively defend their reputations. It’s data debased, and that doesn’t improve product safety for children. Why did the CPSC ignore the clear legislative intent?”

The Consumer Product Safety Commission met today to review the staff proposal for a final rule on the Publicly Available Consumer Product Safety Information Database, one of the many new federal regulations created by the 2008 law, the Consumer Product Safety Improvement Act.

The CPSC’s commissioners had a particularly vigorous discussion about the proposal and the alternative proposal offered by Commissioners Nancy Nord and Anne Northup. The Nord-Northup amendment was defeated 2-3, and a substitute amendment by Commissioner Robert S. Adler was adopted 3-2. The upshot is that the final rule was approved for promulgation without the CPSC fixing the most significant concerns raised by a large number of parties.

Extensive debate took place both in Congress and then within the Commission on the appropriate types of “reporters” to the database, that is, which individuals or groups would be recognized for registering legitimate complaints. The CPSC staff’s final proposal acknowledged that Congress provided an exhaustive list of reporters but strained credulity by expanding the definitions of “consumers” and “public safety entities” beyond their clear public meaning and the intent of the drafters of the legislation. The new definition includes attorneys, investigators, professional engineers, agents of a user of a consumer product, observers of the consumer products being used, consumer advocates, and consumer advocacy organizations, among others. As a result, the database with be filled with bogus reports inspired by political or financial motives rather than safety.

Congress also struck an appropriate balance between the speed of publication of reports and the desire for accuracy as well as the protection of confidential business information. The final rule provides for no such balance and creates a default for immediate publication before any meritorious claims regarding trade secrets or material inaccuracy are resolved. An alternative was offered that provides for the opportunity for staff to make determinations about such claims prior to posting the reports to the database, but it was rejected. Once a trade secret is posted within a report, for example, no remedy is available to undo the damage. These claims as well as claims of inaccuracy, impossibility, or product misidentification should be resolved before the information is made public if the database is to provide helpful information to the public.

Unfortunately, the Commission rejected a common sense approach today. It is now up to Congress to reclaim its authority and correct these errors.

Rosario Palmieri is the National Association of Manufacturers’ vice president for infrastructure, legal and regulatory policy.

UPDATE (1:35 p.m.): Commissioners Tenenbaum, Adler and Moore have issued a statement on their vote to approve the final rule. Commissioners Nord and Northup have posted their statement here. The majority three are Democratic appointees, the minority two are Republicans.

At the request of Commissioner Anne Northup, the Consumer Product Safety Commission has postponed today’s vote on the final rule establishing the Publicly Available Consumer Product Safety Information Database. (CPSC website)

The 2008 law, the Consumer Product Safety Improvement Act, mandated this new reporting device with the idea that members of the public could gain useful information about products they might be concerned about. Unfortunately, the current proposal invites the gaming of the database to the detriment of manufacturers of safe products, even to the point of expanding the definition of “consumer” — those who can register an online complaint — to include activist groups and trial lawyers. (See our earlier post, “CPSIA Update: Why Would You Let Bad Info into Public Database?”)

Commissioners Northup and Nancy Nord submitted an alternative, less disruptive proposal, which you can read here. The additional week does allow time for more public comment, which Commissioner Nord is soliciting at Commissioner_Nord@cpsc.gov.

The Energy and Commerce Committee will have many, many, many assignments it will want to undertake in the 112th Congress. Oversight of the CPSC and the implementation of the Consumer Product Safety Improvement Act should certainly be high on the committee’s list.

See also Rick Woldenberg’s post at AmendtheCpsia.com.

The Consumer Product Safety Commission today posted its notice of proposed rulemaking for the public consumer complaint database. Excerpt:

Section 212 of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) amended the Consumer Product Safety Act (“CPSA”) to require the Commission to establish and maintain a publicly available, searchable database on the safety of consumer products, and other products or substances regulated by the Commission. The proposed rule would interpret various statutory requirements pertaining to the information to be included in the database and also would establish provisions regarding submitting reports of harm; providing notice of reports of harm to manufacturers; publishing reports of harm and manufacturer comments in the database; and dealing with confidential and materially inaccurate information.

This is the database that has alarmed manufacturers, who fear that it will become a poorly monitored site that encourages reputation-harming complaints and salting by product-liability attorneys. Unfortunately, even as the House Energy and Commerce Committee considers modest fixes to the consumer Product Safety Improvement Act, the database has been declared a settled matter not open to legislative review.

Commissioner Anne Northup is unhappy with the notice. She writes at her blog, Safety and Common Sense:

Today the CPSC released the proposed rule for the notorious Public Database (aka the Publicly Available Consumer Product Safety Information Database). I’m sorry to say that it was drafted exclusively by the Majority Party Members of the Commission with next to no input from the Minority Members. As a result, the draft rule is very one-sided in its treatment of accuracy, privacy, and usefulness concerns. Here is an unsolicited (though I believe correct) view that was published independently or you can click here to read my official statement.

The public now has 60 days to comment, so please do yourself a favor and examine this rule carefully!

The House Energy and Commerce Committee has decided to hold a committee hearing before marking up legislation to amend the Consumer Product Safety Improvement Act. Given how few public sessions there have been on the excesses of the CPSIA, a hearing is certainly warranted.

The Subcommittee on Commerce, Trade, and Consumer Protection has scheduled the hearing for Thursday, April 29, at 10 a.m. The draft legislation is called the Consumer Product Safety Enhancement Act. And here’s the briefing memo for the now postponed markup session, originally scheduled for Wednesday.

An updated draft of legislation proposed to “fix” the Consumer Product Safety Improvement Act (CPSIA) has been released by the majority staff of the House Energy and Commerce Committee. The text is here.

Also today, the Consumer Product Safety Commission voted 3-2 to enact the proposed rule guiding the creation of a consumer database as required by Section 212 of the CPSIA.

From The Chicago Tribune’s Problem Solver blog, “CPSC to create searchable product safety database,” quoting AP’s story:

Manufacturers — and the commission’s two Republicans — have raised questions about what could end up on the Web site.

“Our primary concern is that information might be provided to the public which is not accurate or which might even be malicious,” said Carter Keithley, president of the Toy Industry Association, which represents more than 530 toy manufacturers and importers. “The damage that could be done to a company’s reputation and sales could be irreparable.”

We’re with Carter on this one.

Also, CPSC Chairman Inez Tenenbaum testified on the commission’s budget on Wednesday before the Senate Appropriations Committee. Sen. Dick Durbinn (D-IL) issued a news release on the hearing, but we do not immediately find Tenebaum’s statement.

UPDATE (Friday, 8:45 a.m.): Rick Woldenberg has a red-line version of the legislation showing the changes line-by-line.