CPSIA - Confirmation Hearings for Inez Tenenbaum

Yesterday's confirmation hearing for Inez Tenenbaum was both predictable and in its own way, compelling. [Please note that the webcast video begins at about 20:41 - there's nothing wrong with your computer!] As anticipated, Ms. Tenenbaum displayed a rational outlook and outgoing personality that seemed to sell well with the Senate Committee. It was something of a love-in, which is not surprising for a long anticipated, shoo-in Obama appointee. Of course, the going may not be quite as easy in the future, as one Senator warned. But for right now, all is right with the world for the confirmation of Ms. Tenenbaum as the new CPSC Chairman.

In her written testimony, Ms. Tenenbaum attempted to set a cooperative tone. She not only mentioned the need to collaborate with the Senate Committee, but also with consumer groups and industry. She stressed the need to reach out to industry in both her written and oral testimony. At the same time, she paid homage to troubling aspects of the new law by, for instance, pledging a rapid implementation of the defective product database. The database as presently conceived is exposed to serious problems, like faulty or even false postings by well-intentioned consumers or even unethical competitors. Businesses will bear this burden uneasily and small businesses will certainly take their lumps. "Guilty until proven innocent" remains the theme song of the CPSIA.

Ms. Tenenbaum's testimony lent credibility to the notion that certification of testing labs will accomplish something. What that "something" is has never been clarified to my satisfaction. I do not believe the accreditation of labs or lack thereof has any link to product safety. There are NO cases of unethical or false test reports connected to product recalls to my knowledge. I have no reason to believe that government supervision of testing labs is anything more than a new bureaucracy raising costs without bringing new value. I wonder if the CPSC knows what problem they have been charged with solving by accrediting labs. Somebody should let me know if they figure it out.

A few other notes of interest:

a. Senator Pryor's opening remarks in which he advised that unfortunately there has been "a lot of controversy about the implementation" of the CPSIA but "most of that has been resolved at this point . . . there are still a few outstanding issues . . . ." I am quip-less, evaluate this remark for yourself!

Notably, Senators from both sides of the aisle were civil and calm in their discussion of product safety for a change. There was wide bipartisan use of the term "common sense", which I hope is code for an acknowledgement that the legislative scheme needs to be fixed. It was nice to not see fangs bared for once, and to not feel like a social outcast just because we happen to make children's products. Let's hope this new civilized atmosphere can be sustained, and that a rational discussion of the issues under this law can be productively fostered.

b. Ms. Tenenbaum made a point of stating her consistent practice of implementing the laws sent her way by legislatures. I am sure this was a good seller on the Committee but I hope she exercises a bit more independent judgment with regard to the CPSIA. To her credit, she dodged questions about the law itself. This is entirely appropriate, of course. She noted the need to confer with her other Commissioners, and would presumably also be very interested in the opinions of her highly-qualified professional staff. Perhaps after those conversations she will be a bit more opinionated.

c. Senator Pryor invited Ms. Tenenbaum back in "60 days" to give the Committee an update on how her work is going. Unfortunately, 60 days after June 16 is August 15, ONE DAY AFTER tracking labels and the new lead limits become effective (the lead limits effective retroactively). August 15 is also in the middle of the summer recess of Congress . . . . Let's hope they find a way to chat sooner than that. Relief is needed urgently on tracking labels (at a minimum) before August 14. It was encouraging that Ms. Tenenbaum highlighted industry's concerns over tracking labels in her oral testimony.

d. I was disappointed that Ms. Tenenbaum didn't have a stronger answer to Senator Pryor's question about staff morale. To me, the question of morale is THE key question she had to answer at this hearing. Bob Adler explained the issue clearly in his keynote speech at ICPHSO in February. There is a brain drain going on at the CPSC. Why is morale so low? It seems inescapable that low staff morale has something to do with public pillorying of the agency, a year long permi-crisis creating unrelenting and untenable workloads, and a terrible law that forces the agency to spend its limited resources on unimportant things in lieu of focusing on real safety issues. [For example: accrediting testing labs, processing stay requests on pens and other obviously safe products, and assessing the "risk" posed by library books.] Ms. Tenenbaum needs to assess the root causes of the agency's brain drain and morale issues quickly. Lots of money to hire more staff won't solve the problem entirely. The staff believes in the agency's mission, and the CPSIA takes them far away from it. Ms. Tenenbaum must lead everyone back to sensible safety regulation and administration.

e. Another worry: Ms. Tenenbaum's apparent conviction that many problems under the CPSIA will be resolved with more guidance and the issuance of final regulations. Perhaps some issues can be resolved that way but most won't, like tracking labels, resale shops' legal liability under the new law, the cost of safety testing, the need to self-report for every conceivable violation of the law and the confusing state of competing regulatory agencies (CPSC versus 50 SAGs). Interestingly, Ms. Tenenbaum stated that the stays were "working" and that fewer stays will be necessary as new guidance is issued. I hope the subject of how well stays are working is on her investigative agenda when she starts her new job.

I would further note my longstanding concern that the new regulatory scheme is so complex (and therefore inherently difficult to administer) that it cannot be effectively taught. Under these circumstances, it is predictable that most if not all companies will be routinely violating the law. In other words, regulators will have their choice of enforcement actions with almost every company making children's products. This might result in a rather coercive situation if the CPSC shows up on your doorstep. If the agency defaults to handing out big penalties for all those violations, many people will vote with their feet by leaving the industry before it happens to them (this is already happening). If the CPSC chooses to not enforce the law or to selectively enforce it, respect for the law will be damaged and an uneven and unfair administration of the law will result, a very unstable situation. Given these problems, it is absolutely necessary that the law be changed to something that can be enforced - comfortably for all concerned.

f. I was not paying much attention to the issue of Chinese drywall, a big issue for Ms. Tenenbaum and the agency but not for me. I will say, however, that the fantasy endorsed at the hearing that a local CPSC presence in China would somehow prevent this problem seems naive and possibly dangerous. As Gib Mullan noted at the tracking labels public meeting on May 12, the agency is not always aware of risks before they occur - and specifically pointed to drywall which had been a very inert product for decades. Unless the new CPSC office(s) in China are staffed with mind readers and perhaps Carnac the Magnificent, there is little reason to believe they would be capable of preemptively spotting an issue like the Chinese drywall problem, AquaDots or whathaveyou.

Here's a crazy idea for you: why not put the burden for product quality on . . . (get ready for it) the importer. Yes, the U.S.-based company that imports the drywall, whose entire business life is oriented around drywall, why not stick it to them for the drywall problem? Is it simply politically expedient to blame the nation of China for the actions of one or more businesses operating incompetently or worse in their midst? I personally think the OBVIOUS solution to these latent defects is to place the burden on the importers. The CPSC previously had no reason to become involved with Chinese drywall and is in no way culpable for its importation or use. Not everything that goes wrong in society is the fault of Mother Government. I still believe individual responsibility can be an appropriate part of our regulatory scheme.

The confirmation of Ms. Tenenbaum is expected to proceed on a fast track and culminate in a "yes" vote within days. We have a lot to look forward to with the new Obama appointees. Here's hoping for a long and successful career for Inez Tenenbaum as a healer and a leader of a very important regulatory agency.