Brown pushes for more regulations, recalls as she departs CPSC

Ann Brown, Chairman of the U.S. Consumer Product Safety Commission, (CSPC), announced in early August that she would resign as Chairman and as Commissioner on Nov. 1, 2001.

On her way out the door, she is pushing hard for enactment of certain product safety regulations and is reported to be promoting compliance actions that could force the recall of millions more consumer products.

Brown's Aug. 8 statement listed certain "unfinished business" that she pledged to complete. That business included a new flammability standard for mattresses, a standard for bed rails, and child resistant packaging for baby oil and similar products.

Another major goal listed by Brown included the "redesigning" of baby bath seats. Previously, Brown strongly demanded a ban of the bath seats. Brown alsohinted at a "major recall" (or lawsuit) of a "very dangerous product" before she left.

Last May, when the staff issued its briefing package finding no real defect in baby bath seats, she and both of the other commissioners voted to issue an Advance Notice of Proposed Rulemaking (ANPR), to collect information on ways to make bath seats safer. [1]

This week, the Commission staff will brief the three Commissioners on the proposal for a rule requiring child-resistant caps on cosmetic items such as baby oil and sun tan lotion, and on options for CPSC action to regulate portable bed rails. [2]

That leaves the proposed mattress standard and the major recall (or lawsuit) still pending. A briefing package dealing with mattresses is on its way. Reportedly, the major recall or lawsuit is also waiting in the wings. (See story below).

Brown's `Major Recall or Lawsuit' Might Target Air Guns

CPSC Monitor has learned that Chairman Ann Brown may be pushing CPSC's Compliance staff to seek a recall of some 20 million air guns, manufactured by at least two different companies. CPSC's Compliance staff reportedly bases its recall demand on the evaluation that the loading mechanisms of the guns are defective and may "encourage needless undertaking of risk."

The pressure to recall the air guns might be the "major recall or lawsuit" mentioned by Brown in her Aug. 8 resignation statement.

The impetus for the recall was sparked by a liability case in which a plaintiff's attorney, Shanin Specter, son of Pennsylvania Senator Arlen Specter, won a large settlement from the gun manufacturer. The case stemmed from the accidental wounding of a teenager by another teenager with an air gun, leaving the victim permanently disabled

The issue of regulating air guns has come before the Commission numerous times. CPSC claims jurisdiction over the weapons, since technically they are not firearms. Air guns use compressed air rather than explosive power to propel projectiles.

The guns are not marketed to children, but are restricted for sale to persons age 18 and older.

In 1981, the agency denied a petition for rulemaking, saying a voluntary standard could cover any problems. In 1985,another petition, filed by three doctors, requested regulation of high-velocity air guns. The General Counsel of the agency refused to docket the petition.

In 1989, a non-profit group filed a similar petition, and it was also denied. In 1996, following a two-year investigation, the CPSC staff issued a statement saying that the Daisy Model 880 BB Gun was not defective:

"The Commission undertook an extensive two year investigation of the Daisy 880 BB gun to determine whether it was defective.

In November, 1995, the Commission technical staff concluded the Daisy Model 880 BB gun was not defective. Staff evaluating the BB gun included experts in mechanical engineering, metallurgy and human factors.

The BB gun was also found to meet all applicable industry voluntary safety standards.

The Commission continues to warn that BB guns are not toys, and that they should be used only with adult supervision." [3]

Brown is said to be pressing for quick approval of an administrative complaint against the gun manufacturers this week if the companies continue to reject demands for a recall.

The 20 million air guns now in the hands of consumers have been sold over the past 30 years.

White House Must Select Brown's Successor

While Brown is preparing for her departure, the other bit of unfinished business is the nomination and Senate confirmation of her replacement. The Senate Commerce Committee rejected President Bush's nomination of Commissioner Mary Sheila Gall as Chairman on Aug. 2, [4] and Gall later requested that her name be withdrawn from consideration. Gall will remain on the Commission until her term expires in 2006.

Under its enabling statute, the agency can function with only two Commissioners for up to six months. But since the terrorist attacks of Sept. 11, most observers feel that the White House Office of Personnel has not focused very strongly on small independent agencies such as CPSC, and it could be that long before a nominee is selected, nominated, and confirmed.

Meanwhile, plenty of speculation is circulating about possible candidates.

David Baker, an attorney with the law firm of Thompson, Hine and Flory in Washington DC, who often represents clients before CPSC, is mentioned as a possible candidate for Chairman. Nancy Nord, an industry representative in Washington who was selected to fill a CPSC Commission vacancy by former President George H. W. Bush in 1992, is also frequently mentioned as a possibility. Bush's nomination of Nord was never confirmed since Bush was defeated by Bill Clinton in 1992 and Clinton eventually filled the vacancy.

Margo Machal, a former Commissioner of the Federal Trade Commission, and former CPSC Chair Nancy Harvey Steorts have also been mentioned as possible nominees. One report mentioned Gordon Damant, a former member of a state regulatory board in California, who is billed as a "recognized authority on the flammability of consumer products." [5]

The name of Maryland Congresswoman Connie Morella, who faces a tough re-election battle next year due to unfavorable re-districting, has also surfaced as a possible candidate for the job.

Adoption of New Rule on Baby Oil, Suntan Lotion Caps Seems Certain

CPSC staff on Oct. 11 briefed the Commissioners on its proposed new mandatory rule requiring the use of child-resistant caps on cosmetic products such as baby oil and suntan lotion. Commissioners had approved a Notice of Proposed Rulemaking (NPR) covering products made of low-viscosity hydrocarbons in January, with Commissioner Gall expressing some reservations about the lack of data showing the need for safety caps for cosmetic products.

But last May, a toddler died as a result of ingesting baby oil that had been left in his bedroom. The family of the little boy was present at the briefing.

The danger is not from ingestion but from the aspiration of the low-viscosity (or thin) oil into the lungs. Such incidents cause a type of pneumonia that has no known treatment. The Commission says that five children have died from breathing in hydrocarbons in this manner since 1993, and that three of those deaths involved baby oil. According to Chairman Ann Brown, adding child resistant caps to such products will cost between a half-cent and two cents per product.

The staff is still working on a separate regulation that could mandate child-resistant packaging for some aerosols. [6]

Since Chairman Brown and Commissioner Thomas Moore both backed the original proposal, and Commissioner Gall is reported to be satisfied that the staff provided the data to support the regulation, the Commission will very likely support the new rule unanimously.

CPSC Moves Forward with Mandatory Rule for Product Registration

On Oct. 23, CPSC staff will brief the Commission on a proposed rule to require manufacturers to include product registration cards with certain types of consumer products. [7]

The proposal--The Purchaser Identification Card Program--was staff-generated at the direction of the Chairman's office, and outlined in a June 19 memo to the Commission. At about the same time, the Consumer Federation of America (CFA) announced that it was filing a petition calling for CPSC regulations mandating registration cards for all children's products.

CPSC's proposal calls for the regulation to cover only counter-top appliances and children's products, while CFA's petition targets only children's products.

The purpose of such a registration requirement is to establish a database of consumers who can be notified directly if the product is recalled. The cost involved (postage-paid return cards) could be as much as 80 cents a piece, if consumers do return the card. If consumers do not return the card, the cost would still be about 30 cents. The cost of maintaining the database is also a consideration for manufacturers of consumer products.

Regulation of Upholstered Furniture Is Still on CPSC's Agenda

Saying that a "fresh start" is justified, the National Association of State Fire Marshals (NASFM) has written to CPSC withdrawing the 1993 petition for a mandatory fire safety standard for upholstered furniture.

George Miller, President of NASFM, noted in the letter that "[I]n a matter that has traditionally defied consensus, we find widespread agreement from a diverse range of fire safety experts that the Commission staff's proposed approach would be neither effective nor commercially feasible." Miller went on to say that if accepted as it is, the staff proposal would likely result in costly protracted litigation--and even without the litigation, the draft standard would have a limited impact on fire protection." [8]

Miller also noted that California is updating its technical standard for upholstered furniture, which when complete "is likely to become the de facto national standard."

The NASFM's 1993 petition requested CPSC to adopt the current California standard, TB 117, as a national standard. Miller now says it wants CPSC to defer further action on the issue and that his organization intends to submit an amended petition--most likely favoring the amended California standard.

In its December 2000 issue, CPSC Monitor noted that Dale Ray, a leader in the CPSC furniture project, told a trade publication that CPSC staff would be open to "reasonable alternatives" to the mandatory approach. An industry coalition has funded research focusing on a standard to slow the spread of upholstery fires. The new approach, it is claimed, could reduce fire-related fatalities without using FR chemicals. [9]

The Commission has been engaged in lengthy research on a potential upholstered furniture standard for many years. Currently, CPSC staff favors the use of flame retardant (FR) chemicals to aid in preventing ignition of furniture from small open flames. However, in 1999, Congress directed CPSC to contract with the National Academy of Sciences (NAS) for an independent study of the health hazards that might be associated with the use of FR chemicals in any new furniture standard.

The NAS report concluded that eight out of 16 possible FR chemicals could be used in furniture without health risks. But CPSC is also looking at the health effects of FR chemicals on worker safety and the environment, working with experts at the National Institute of Occupational Safety and Health and the Environmental Protection Agency (EPA).

In a related development, a new study, published in the scientific journal Environmental Health Perspectives, questioned the safety of certain types of flame-retardants. The journal is the monthly publication of the National Institute of Environmental Health Sciences, one of the 27 institutes that make up the National Institutes of Health. Such chemicals are commonly used in electrical appliances, computers, televisions, building materials and household textiles, the study said, and may cause permanent damage to newborns, "perhaps impairing learning and memory functions as they mature." [10]

The study evaluated "brominated flame retardants" including polybrominated diphenyl ethers (PBDE) and tetra-bromo-bis-phenol-A (TBBPA). When PBDE 99 and PBDE 47 were administered to male mice, they caused dose-related permanent abnormalities in the mice. TBBPA, however, showed no adverse effects, according to the study.

CPSC staff was scheduled to send an upholstered furniture briefing package to the Commission in October 2001. Now that NASFM has withdrawn its petition, all bets are off regarding the outcome.

CPSC Monitor will revisit this issue in greater depth when the CPSC briefing package becomes available and research information from the industry coalition is completed. Important issues for consumers are whether their choices will be much more limited and how much will the costs for upholstered furniture likely rise.

Footnotes:

[1] See CPSC Monitor, May, 2001, Vol. 6, Issue 5, "Regulators Back Away From Ban of Bath Seats; But Advance Toward Possible Mandatory Rule."

[2] See CPSC Monitor stories on "Low Viscosity Hydrocarbons," February 2000, and "CPSC Staff Proposes ANPR on Portable Bed Rails," July 2000.

[3] From the CPSC Office of Information and Public Affairs, Feb. 9, 1996. U.S. Consumer Product Safety Commission, Washington DC.

[4] See CPSC Monitor, August, 2001, Vol. 6, Issue 8, "Commerce Committee Stops Gall Confirmation--Brown Announces November Resignation."

[5] See U.S. Court of Appeals for the First Circuit, No. 99-1779. Elizabeth Wilson, Plantiffs, Appellants, v. Bradlees of New England, Inc., Union Underwear Company, Inc., Paradise Screen Printing Co., Sharky's Sportswear Co., Defendants, Appellees.

[6] Barnes, Julian E., "Safety Caps Are Considered for Cosmetics," New York Times, Oct. 10, 2001.

[7] See CPSC Monitor, June-July, 2001, Vol. 6, Issue 6-7. "CPSC, CFA Seek Product Registration Rule."

[8] Miller, George, president, National Association of State Fire Marshals, in a letter to the Consumer Product Safety Commission, Oct. 5, 2001.

[9] See CPSC Monitor, December, 2000, "Possible Breakthrough in Upholstered Furniture Impasse."

[10] "Common Flame Retardants May Cause Developmental Problems in Newborns, Study Says." Environmental Perspectives Press release, Research Triangle Park, NC, Oct. 9, 2001.

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