CPSIA - Duplicity and Sleight of Hand in the Waxman Amendment

The icing on the cake of the Waxman Amendment is their sneakiness. As if the problems already reported were not enough, the Dem authors greedily tossed in some real bombs, all using language sufficiently opaque to obscure their meaning. I presume this was some sort of "clever" gambit to escape attention.

You deserve to know more.

First, by way of background, let's review how we got to this point. The CPSIA was signed into law in August 2008 and howls of pain and protest began immediately. For more than a year, the Dems asserted that the law was perfect and the CPSC would fix the "unintended consequences". Over time, overwhelming evidence mounted to prove that the law needed to be changed, the CPSC could not fix everything without help and most disappointing, not all the bad consequences were 'unintended". After more than a year of bickering, Henry Waxman unilaterally tried to sneak a CPSIA amendment into an omnibus bill in December but failed. Finally, the CPSC Commission was ordered to submit a list of recommended CPSIA changes to the House Appropriations Committee on January 15. The Commission issued its report on time but could only come to consensus on a small handful of items.

In the wake of the Commission report, this amendment was drafted by Waxman's staffers to "fix" the CPSIA.

But . . . a couple other things happened. First, it is my understanding that Inez Tenenbaum sent a secret list of 20 changes she wanted to the Waxmanis. [I have not seen this document; its existence is an open secret.] So apparently, the Commission report was for public consumption, but the Chairman had her own wish list for private viewing.

The second thing that happened was that the Waxmanis decided (perhaps with the encouragement of Tenenbaum) to use this amendment as a way to further amend the original CPSA (dating back to 1972) and make things WORSE for you and your businesses. These changes were cloaked in seemingly technical jargon at the end of an the amendment. [Connsumer groups had also expressed support for these changes in recent public meetings.]

Let's look at what the Waxmanis are trying to do:

a. An Open Door to Confidential Information. Section 6(b) of the CPSA provides a notice period before disclosure of information to the public by the CPSC. Among other things, this provision requires that the Commission must give notice to the manufacturer of the disclosure to permit comment and dialogue, as well as the initiation of court actions (injunctions) to prevent the disclosure of such information (this is called "due process"). The Commission is also obligated to make sure "that such disclosure is fair in the circumstances and reasonably related to effectuating the purposes of this Act". This provision essentially provides a check-and-balance to prevent the unfair coopting of the information disclosure process against manufacturers.

The amendment makes the following change to Section 6(b)(1): "striking 'its public disclosure' and inserting 'initiating the public disclosure'". Wow. I can tell you're reeling from the significance of this change.

Okay, what's the big deal? Is there ANY difference here? Yes, in fact, there is. By changing these three words, Section 6(b) now applies ONLY to disclosures initiated by the Commission. Isn't that everything? No. What kind of information disclosures might NOT be initiated by the Commission? Freedom of Information Act requests by, say, reporters, plaintiff attorneys or consumer groups.

Uh-oh.

Let me state this a little more clearly - the changes in the Waxman Amendment take away ALL protection of businesses on FOIA requests and allows the (passive) disclosure without prior notice. You lose ALL protection under 6(b) with this tiny change of three words. This would apply to all investigative files (like any of your Section 15 reports) and other confidential correspondence between you and the CPSC. Presumably, if enacted, that confidential material could show up on the front page of the Chicago Tribune WITHOUT NOTICE. [Disclosure of trade secret information is regulated by Section 6(a) and is presumably not eroded by this amendment.]

The relationship between this provision and the Public Database is not clear. It might change (reduce) the flimsy protections already in place, or might provide a way for reporters, plainiff attorneys and consumer groups to get at information that might not appear in the database.

This provision is entitled "CLARIFICATION OF LAW" in the Waxman Amendment. That is a plain, unambiguous LIE. The authors of this amendment think you are a fool.

b. Subpoena Authority Loses Its Check-and-Balance. The amendment changes the rules on subpoenas in two important ways. First, in another "clarification of law", Section 27(b)(3) is amended "by striking 'documentary evidence' and inserting 'documentary and physical evidence'". This change does not incorporate any reasonableness standard and thus allows the CPSC to subpoena evidence in private suits regardless of the consequences, and even more importantly, can subpoena inventory as a backdoor way to recall it. This is unfettered government power. Is that a good idea?

The second change requires a little background. The Commission has broad powers to delegate its powers to staff - except for subpoena power. So, if the CPSC wants to issue a subpoena, there is a procedural check-and-balance in place to require the additional step of seeking Commission approval. The Commission, being an entity visible to the public, presumably would be less wrapped up in the emotions of an investigation and be capable of more balanced judgments. It's a procedural safeguard that protects the integrity of the system but is highly unlikely to slow an investigation detrimentally.

The amendment, however, gives the Commission the power to delegate its subpoena power now. This opens up the possibility of zealous staffers who could use subpoena power to harass or even punish "uncooperative" firms, all outside of public view. There would be no due process protections to rely on, either. This is yet another expansion of government power - but with little demonstrated need. [In other words, what terrible things have happened that could only be fixed with this legislative change?]

c. Information Disclosures in Voluntary Recalls Ratchets Up. The CPSC recently put out a 17 page Federal Register notice of its requirements for Mandatory Recall notices. Memorized it yet? Why not?! Of course, you may be forgiven for feeling you could ignore it, since mandatory recalls are quite rare and usually relate to severe risks to public health and safety. Most recalls are voluntary, which means mandatory provisions are rarely used. In any event, if it ever comes to this, the disclosure probably needs to be more comprehensive and significant.

For those reasons, I did not comment on these rules. They seemed irrelevant to me. G-d forbid such a thing should happen on my watch. Pew-pew, knock wood. I may not have been the only one to look at it this way.

Oops, my bad. The amendment makes these provisions apply to VOLUNTARY RECALLS. Sneak attack? Perhaps. The rules for mandatory recalls includes several obnoxious requirements, making compliance much more burdensome and expensive, not to mention potentially devastating to your business.

d. If You Liked the Baby Slings Warning, You'll Just Love This Change. Knowing you as I do, I imagine you are thinking "I wish the CPSC could act more impetuously and strike out at entire product classes or industries without doing studies or anything too science-y." Well, it's really your lucky day!

The Waxmanis sent you an early Christmas gift with their proposed change to CPSA Section 5(a) requiring the Commission to "promptly inform and educate consumers regarding a class of imminently hazardous consumer products upon identifying or being made aware of such a class of products.’’

And how will this work? "[Whenever] the Commission identifies or is made aware of a class of imminently hazardous consumer products, the Commission shall take appropriate steps to inform and educate consumers through the media, State and local governments, and private organizations regarding such class of products and the nature of the hazard.’’

I believe that the CSPC must go to court to do this now.

I have just a few questions:

- What about due process?
- What are the procedural safeguards?
- What constitutes a "class of imminently hazardous consumer products"? What steps must the Commission take to reach that conclusion? Is reading an AP story enough? [I presume the answer is yes.]
- Who will protect innocent companies inadvertently slandered by your advice? [For example, the baby slings warning apparently related to very young babies or preemies, but the headlines applied to everything in the product class. Too bad for companies making safe baby slings for older babies?]
- When the CPSC jumps the gun and hurts companies or entire industries needlessly or in error, who will pay the damages? Do we get a bailout?

Call me a cynic, but I think this erosion of safeguards is just a mite troubling.

There are probably other ticking bombs in this legislation that I haven't found or told you about. I think you get the point nonetheless.

Two more thoughts:

1. These four changes significantly erode protection of corporate interests under the CPSA. This makes doing business MUCH riskier and invites a lot of randomness into our business lives. It also makes it tough to believe you can trust the CPSC during a Section 15 investigation or other altercation. If you have a real worry about how you will be treated, do you experience a heightened incentive to cooperate or to hide? Will this raise the rate of disclosure of problems, or provide an incentive to bury the problems?

If disclosure to the CPSC now involves certain pain, why would people bring misery on themselves voluntarily? And when more people start to hide - and are found and punished - will the cries for stricter rules rise or fall? They will rise, as howling consumer advocates will assert that this is "proof" of the venality of corporations. The "only" solution will be even stricter rules and higher penalties. Perhaps we should all be sent to jail preemptively, save some time.

2. I hope you share my utter outrage at the arrogance and effrontery of the duplicity and sneakery of the Waxmanis. Such arrogance is only possible when public officials feel that they are beyond reach. This deception shows clearly how high and mighty the Waxmanis feel, how imperious their attitude. Their anticipated ultimatum to the business community to fall in line behind this amendment is more of the same. It's rather revealing.

There is no reason to puzzle over disillusionment with our government. The Dems blew it . . . and continue to blow it. This amendment was a chance to build bridges and mend fences. Insead, the Dems go on a rampage.

I am tired of being treated like this by my own government.