Monday, May 17, 2010

CPSIA - What is a "Substantial Product Hazard"?

How does the CPSC decide which items to recall and which ones to permit to remain in the market?
The basis for a CPSC recall is found in Section 15(c) and 15(d) of the Consumer Product Safety Act. The CPSC is only entitled to recall items which present a "substantial product hazard", defined in section 15(a) in relevant part as: "a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public."
Can the CPSC designate anything it wants as a "substantial product hazard"? Not in my opinion, if this legal standard is to have any meaning. Some things are substantial product hazards, and some things are lesser hazards. Those lesser hazards may still be of concern to the CPSC, but the agency lacks the legal authority to order their recall. Other solutions, such as public warnings or voluntary action by the industry, can appropriately address less severe risks adequately.
It gets tricky when there are injuries to children. [This legal dilemma has previously been parodied by The Onion - eerily anticipating the recall of dart guns pictured here.] If there are injuries or deaths, will the product always be considered a "substantial product hazard"? What if the accidents occur because of product abuse, recklessness or age-inappropriate behavior? If injuries under those circumstances constitute a "substantial product hazard", will ALL similar abuses of products be considered a "substantial product hazard"? I would think this line of reasoning would make many things, including guns, knives and even forks, suitable for urgent recall. What about broken glass - if a kid eats broken glass or ceramic, wouldn't he/she be terribly injured? Should the CPSC now recall everything made of glass? What about newspapers - paper can burn and cause injury. Recall the Chicago Tribune? [This is my fantasy.]
And if you can go this far, why must the abuse or inappropriate behavior even have to take place? Why not recall items just because you can imagine an injury occurring from an abuse that may have never happened? Is that a "substantial product hazard"? Is this pure fantasy or could recalls occur on this basis? Read on.
When there are injuries to kids, emotions run high, and the "substantial product hazard" standard expands. Add in newspaper headlines, and anything seems possible nowadays. Let's not forget that in the last eleven years, there has been ONE death from lead, when a four year old swallowed a lead jewelry charm - and, BINGO, we were gifted the CPSIA as a result. The law gives a lot of wiggle room to the motivated regulator. Some recent recalls call into question whether the substantial product hazard" standard is being observed at all.
Case 1: Cadmium jewelry. It is accepted that cadmium has been used in jewelry for decades, although not widely. Nevertheless, to my knowledge, there has never been a reported case of "cadmium poisoning" from jewelry. Pediatricians have virtually no awareness of cadmium poisoning as a health threat. The low probability of childhood injury from cadmium in children's products is also evidenced by the CPSC's lack of data on the health impact of ingesting cadmium in this form - it never came up until the Associated Press sounded the "alarm". The available data on cadmium relates only to workplace exposure or airborne cadmium.
It is equally well-accepted that children inappropriately mouth jewelry. It is also known that children can and do swallow jewelry, which happens thousands of times each year. No child thinks jewelry is food - but these things happen.
Cadmium is in (some) children's jewelry. Kids are known to mouth and/or swallow jewelry. Cadmium is a dangerous metal and can be harmful if swallowed. So, does this mean that cadmium in jewelry a "substantial product hazard"? Given that there has NEVER been a reported case of injury, it is hard to describe the risk of "severe" or even "substantial". It is best described as "possible". Yet, the CPSC has recalled cadmium jewelry three times now.
Unfortunately, the CPSC has chosen to respond to the stimulus of newspaper headlines and the ill-informed action of state legislatures, rather than the discipline imposed by its own statutory legal standard. By labeling this hazard "substantial", the CPSC creates many problems that could have lasting impact on the market. It imposes high costs on the industry for something that may not matter much, dilutes the impact of recalls of more dangerous products (have you noticed that the pace of recalls has really picked up at the agency - does that help or hurt the CPSC's mission?), and diverts the resources and attention of the CPSC staff away from larger and more pressing issues.
Perhaps worst of all, contrary to the assertions of Inez Tenenbaum, the confidence of the marketplace is being eroded by the deluge of recalls. Who can you trust anymore? Is the message that you can only trust Mother Government? If so, is Mother Government planning to take over the manufacturing of all children's products next? No one will have enough capital to survive this style of "regulating" for much longer so they better get ready to take over. This is no market stimulus program.
Case 2: Dart Guns. I am in the educational toy business and have children of my own. So I am prejudiced - I have no idea why anyone makes toys of this nature. Our company certainly doesn't, and we never allowed them in our home either. However, in our society, guns and dart guns have a certain appeal and they apparently sell well. Family Dollar Stores sold 1.8 million units of a small dart gun set for $1.50 in recent years (pictured above). It looks pretty generic to me, and for $1.50, it is clearly a cheap, disposable novelty toy.
Sadly, two boys (9 and 10 years old, respectively) died in separate incidents in which they were chewing on these darts and aspirated them. The dart suction cup blocked their airways, leading to tragedy. These terrible accidents are sad confirmation of the unnecessary risk posed by dart guns as toys. But do these circumstances meet the "substantial product hazard" standard? If they don't, how can the CPSC recall this item?
My argument is that while this toy is very objectionable and apparently capable of harming children, I do not know if it rises to the level of a "substantial" product hazard just because of the two accidental deaths (especially in light of 1.8 million sets sold, plus many millions more of similar items already in the market presenting the same "risk"). The statute does not provide that deaths automatically constitute substantial product hazards. Presumably, if that's what Congress meant, it might have said so. The tragic accidents occurred when two children were doing something they shouldn't. They were also at an age where they were supposed to know better. That doesn't make the loss of these boys any less painful but it does suggest that these incidents were terrible accidents rather than substantial product hazards. It may be that the families' remedies should be in the courts, not via the CPSC. In any event, if we (as a society) don't like dart guns, that's fine - we should ban them. Notably, the CPSC is not taking that position in this case.
Recalls cost a lot of money, and it is naive to believe that the market will not respond to an erosion in the legal standard for recalls. Legal standards are an important part of the "rules of the road". If the rules change, the entire game changes. In this case, if we are all exposed to the risk of a massive, multi-year recall of our legal products because of accidents and tragedies arising out of misuse, we will have to change our business models in ways very disadvantageous to consumers. No one has the profit margin to accommodate these unplanned and random expenses. We have no answer for this business problem - we are not clairvoyant.
For small, niche businesses like ours, the erosion of expected legal protections is very scary. These recalls are a gross expansion of capricious government power, no matter how scary cadmium jewelry is or how much we might be angry at dart gun makers. With an increasingly reactive CPSC demanding recalls to meet the expectations of newspaper headlines, randomness is complicating business planning and generally demoralizing the regulated community.
I may sound like a broken record, but this style of government is stoking voter anger. We have little recourse over these policies or over the intransigence of the Dems in Congress other than in the voting booth. I, for one, won't forget all this. We need a new sheriff in town.


Connie said...

Please run for some political office where I can vote for you. I want your incredible voice of reason in some official capacity. I realize that your intelligence, honesty and ability to reason would most likely disqualify you from any such position but I can dream.

Do you have plans for 2012?

Anonymous said...

Connie read my mind perfectly...Run for political office in 2012 or sooner if possible. You can be that new sherrif in town!
You now have 2 votes!

Anonymous said...

make that 3 votes

dan marshall said...

To my mind, another question is raised by the recall of this dart gun. Presumably, this toy had been tested according to the CPSIA, which most likely included ASTM F-963 tests. As you know, even though the CPSC hasn't finalized its requirements for ASTM, most large retailers are already demanding testing to that standard.

If this toy had, in fact, been tested and passed, then it illustrates the limits of third party testing in the first place. This product turned deadly because of an unanticipated use of the product by children of an age who, as you say, should have known better.

Why did these kids chew on and then choke on these darts? Did they taste good? Was the plastic somehow soothing to chew on? These are aspects of a product that no ASTM standard could ever predict and no lab could ever test for.

To me, this recall illustrates the problem with the false confidence we are placing in standards and testing to assure product safety. To the extent this false confidence undermines common sense and parental oversight, we are creating a problem much bigger than the problems we are trying to solve. We need parents who can properly identify risks and who can teach their children to do the same. No amount of standards or testing can substitute for that.

Either way you look at it, this recall is problematic. If this toy is in fact a "substantial product hazard," then the testing infrastructure erected by the CPSIA is flawed. If it isn't, then the CPSC is, as you say, exceeding their authority. Either way, the message "don't chew on your toys" is getting lost.

Anonymous said...

Dan is absolutely correct.
This is clearly a parental oversight not a manufacturer
oversight. If this is the new
"rule" of determining recall then
every product MUST be recalled.
EVERY product. There inevitably could be some accidental missuse of
each and every product on the market.
My 3 yr old opened a child proof pill bottle from the pharmacy, so what did I do? I hid them in a locked cabinet but according to the new rules, all of those should be recalled. It is ridiculous and