Tuesday, March 15, 2011

CPSIA - Can You Trust Me on the CPSIA Database?

I have received a fair bit of feedback on my recent posts relating to the CPSIA Database. You may recall that I highlighted the CPSC policy decision to knowingly post untrue and misleading complaints about consumer products on the grounds that they state the opinion of consumers of a "risk of harm". Apparently, the ignorance of those opinions or outright, blatant error matters not to our CPSC market administrators. Our submission of a valid CPSIA test report and photographic evidence was not persuasive of our common sense position in the instant case.

[The rejection of a CPSIA test report in refutation of an invalid "product incident" complaint is fascinating, given the vigorous and oft-repeated consumer group assertion that consumers DEMAND test reports to feel "secure" that children's products are safe. Supposedly, consumers assume "somebody" is testing everything, or at least that's the poppycock the consumer groups flog. This is a bedrock "assumption" underlying the CPSIA. Isn't it interesting then that the CSPC apparently places so little stock in these critically important test reports???]

Par for the course, my comments in this space never get an official response. The substance of my complaints go unanswered - but in this case, the rumor mill is churning. That's my answer, I guess. I am told that little birds (from the CPSC) are chirping that I am taking the CPSC's response "out of context".

This is a great tactic because the argument makes it unnecessary to respond to my points. It also changes the debate, from the substance of my database objections to the subject of my character. Lending credence to the vague and unproven accusations is the official stature of the CPSC and its staff. CPSC job titles convey credibility, and my lowly status as a "blogger" and a "Small Business" makes everything I write subject to doubt. Who knows more about safety and the law? Who is more trustworthy? Who speaks with greater authority? My character is an easy target, much easier to attack than my points about the database.

And how am I to defend myself? I don't have the option to hide in the shadows and say they are twisting facts. You get to read what I say . . . .

I have long adhered to principles of truthfulness and full disclosure in this space. I defy you to find a better documented space devoted to analysis of the CPSIA and its wide-ranging impact. I use real data and link to actual source materials. In this case, I quoted from a letter from a senior CPSC official. I have not revealed who wrote it - for two reasons. First, this person speaks for the agency, and as such, it is the agency that is responsible. I think the institution should be accountable, even if individuals are its mouthpiece(s). Second, this is not personal and as a consequence, the identity of the email's author is a secondary consideration. The law is the problem. The authorship of the email is off point.

Well, why don't you decide for yourself? Can you trust me?

Email no. 1 (March 4, from our company):

"The LER 7273 that the initial complaint was issued for is a discontinued product and is no longer available for sale in our catalogs. I have attached a test report for this item showing its compliance to both ASTM F-963 and EN-71. I have also provided you pictures which clearly shows the hearts are much larger than the choke tube requirements.

Can you please confirm that the providing of this detail, which clearly shows that the product was tested to be in compliance and the additional photos clearly showing the product complies with the stated issue, would not appear in the database after March 11th?

This type of complaint is exactly what we find to be very troubling with the database to our industry. This is an example where someone saw a photo of a product and without even touching it or seeing it in person filed a claim that they feel it 'might' be a hazard. There is no indication of potential harm or actual harm caused, just a feeling that it might be dangerous. We were able to quickly provide testing documents and photographic evidence that the product is compliant to all applicable standards and product requirements with no potential choking hazard with the hearts provided with the product. The concern is that this unjustified complaint will be placed on the database with a reply from us that proves it is not an issue, but the damage has been done and the perception to the end consumer is that this product is not safe.

Thanks again for your help in understanding the application of the database and it’s intended applicability going forward."

Email no. 2 (March 8, from our company):

"Our ten day response window is coming up fast on the complaint that we had issued against us. Have you had a chance to discuss the information I sent to you on Friday? Thanks."

Email no. 3 (March 9, from CPSC):

"As we discussed last Friday , since we are in soft launch, the report will not be posted in the public database. When I called you last Friday, I told you the staff consensus was that but for soft launch the report of harm would be posted in the database, and you would have to decide whether to post a comment or a claim for material inaccuracy. When we discussed the issue further and I asked you to send me the information you sent last Friday, I did not understand that you were still attempting to resolve the issue in the ten day time frame.

I should make it clear from the outset that I am not the person within the agency with the delegated authority to handle material inaccuracy claims. This email reflects my opinions and not those of the Commission and has not been reviewed by the Commissioners. When you first approached me about this at ICPHSO, I told you that my gut reaction was that despite the concerns you raised, the Commission staff handling these issues would take the consumer's report at face value as a claim raising a concern of a risk of harm. I explained then that your Firm could provide a comment with your objections to the report or object to the report as materially inaccurate. Given your concerns about the report, I raised the issue with the database team handling the issues and confirmed to you in our call last Friday that the response was the same. I also indicated that the claim of material inaccuracy would likely be denied. I explained that the personnel handling these matters were not making decisions as to whether the product was harmful but rather they would take a quick look at whether the report of harm articulates a risk of harm. I write to follow up further on this issue.

On its face, the report indicates a concern about a choking hazard which suggests that the consumer believes there is a risk of harm. On Friday, you sent photos and test results that you believe are sufficient to make out a claim of material inaccuracy, i.e., that the product cannot be said to present a risk of harm because it passed the small parts test. The sweet toy heart is larger than the small parts cylinder, and you have provided test reports indicating that the product passed the small parts test. However, in assessing whether a report of harm articulates a risk of harm, the staff is not adjudicating whether the product actually presents such a risk of harm. We have other processes for making that determination which require an assessment of the risk by Commission staff, including a subject matter expert - in this case, a physiologist on the issues relating to the likelihood of a choking hazard to children. Indeed, the Commission has recalled products as a substantial product hazard where the toy was slightly larger than the small parts cylinder but, because of the shape, when swallowed, the toy presented a choking risk to children. The ultimate adjudication of whether a product presents a hazard is covered by different regulations entirely and would require an administrative hearing before an administrative law judge. As I explained on Friday, the database process is set up to allow the manufacturer to state its reasons why the report does not present a risk of harm and have that appear next to the consumer's report. The staff handling claims of material inaccuracy will not be determining the ultimate question of whether the product does, in fact, present a risk of harm. That would only occur after a full assessment of the risk of harm by the subject matters experts and ample opportunity for the firm to address the issues with our compliance staff. The disclaimer is intended to notify users that the information has not been evaluated and specifically states: The Commission does not guarantee the accuracy, completeness or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC.

When I raised this information with the team that has been delegated the authority for making these decisions, staff concluded that the report would be posted in the database but for soft launch, and it would be up to the Firm to decide whether it wants its test reports and photos posted as comments in response to the report. The conclusion was that this is the type of report that has been included in our databases in the past and would be included in the public database along with the manufacturer's comments and the mandatory disclaimer as to the accuracy of the information in the public database."

For the ease of your review, I have highlighted in blue the words which I quoted in my March 9th blogpost.

Can you trust me? I have nothing to say, please judge from the facts. For those that prefer to lurk in the shadows and bash my character without being in any way accountable, please remember that the truth will out. Eventually, it may not be my character that will be the big issue of the day.


halojones-fan said...

1) If the established standard tests don't guarantee acceptability, then why bother with them?

2) If "safety" is to be established by CPSC review, then CPSC is setting itself up to be like the FDA; requiring that EVERY PRODUCT be reviewed by the regulatory body before it's legally allowed to be sold. The tiny little CPSC is going to perform a safety review of EVERY NEW PRODUCT, and thousands of existing ones, and it's going to do this in a timely manner that supports small-business activity.

Yeah. And maybe I'm a Chinese jet pilot.

3) "[I]n assessing whether a report of harm articulates a risk of harm, the staff is not adjudicating whether the product actually presents such a risk of harm."

Classic. "We aren't saying that WE think it's harmful. We're just saying that SOMEONE thinks it's harmful." Which goes in nicely with...

4) "The disclaimer is intended to notify users that the information has not been evaluated and specifically states..."

What's happening here is that they're trying to borrow the "safe harbor", "service provider" protection language from the DMCA; the thing that bloggers are talking about when they say "this comments section is for the views of others, the blog author does not have any responsibility for what is posted here".

Unfortunately that idea is increasingly under attack as people realize that the Internet is more than just nerds sharing pornography.

Anonymous said...

Wow. This has to be the scariest thing I've read on your blog in a long time. If the CPSC is using this as a standard, we should all be very afraid:

"the consumer believes there is a risk of harm"

Anonymous said...

If this were back in Stalin's day, they'd have shipped you to Siberia by now . . .

YES, CPSC, I'm addressing this to YOU--please wake up and use the sense God endowed you with!!! Leave strawmen arguments and red herrings behind and quit yourselves like men and women of maturity!

Anonymous said...

I only trust information I read on a ".gov" website.

Anonymous said...

I can *kinda* understand taking that position on a report of ACTUAL harm. If the report was that a kid actually DID choke on an object, then sure, the CPSC could say "Look, we only check for whether this appears legit. If there was harm, the report goes in there and you can try and explain why the product isn't actually dangerous" (Like "this was a bracelet and the kid put it around his neck" kind of reports). Then I, as a consumer, can make some meaningful use of the information. Is my child likely to put a ball up his nose, or stand up in his crib, or use product X in the same way that caused the harm?

But reports of (perceived) POTENTIAL harm need to be subject to better vetting. I'm not saying they should wait until someone is actually hurt, but to merit a warning in a government database these need to be the kind of near-misses that provide some meaningful information to parents or consumers ("I whacked him on the back just as he was turning blue"), not the bored musings of an internet browser ("wow, those fork tines look a little sharp..") How is a consumer supposed to know whether to trust the manufacturer or the anonymous reporter? It's nothing more than a "he-said, she-said", with NO objective facts to put into the equation. What purpose does that serve, besides wasting EVERYONE'S time?

Anonymous said...

I see nothing in the remaining conversation that makes any material difference.

The validity of a claim appears to hinge entirely upon the claimants ability to string words together in the right order so as to articulate a concern of harm.

Whether those words are based on reality or not is, apparently, irrelevant. As long as the claimant can string the words together in the correct order then it's considered legitimate.

In your case Rick, the fact that the claim was based on a website image is irrelevant. The fact that websites never display image sizes accurately (it is virtually
impossible to do so on the public internet) is irrelevant. The fact that you have paperwork showing that the product has passed the relevant tests is irrelevant
(yes, the relevant tests are irrelevant!).

Reality is irrelevant. The claimants ability to use words, thoughtfully or not, is all that matters.

Yes we have gone through the looking glass - reality is no longer relevant.

halojones-fan said...

Incidentally, did you or the CPSC ever get any information about the source of this complaint? i.e. a name, contact information, something? Any way for you to contact the "concerned party"?

How are you supposed to address consumer reports of harm when you aren't allowed to contact the harmed party?

Rick Woldenberg, Chairman - Learning Resources Inc. said...

Ms. Tenenbaum said it best: "That's what the rub is.". There is no way to discuss the matter with the consumer. In any event, what difference would it make? He/She was basing the assertion based on an examination of a photo on a website. Not exactly a scientific judgment.