A failed consumer safety law: Will Congress fix it?

The Consumer Product Safety Commission is being strangled.

It was once hailed as powerful and groundbreaking new law when it was passed in 1972 with bipartisan majorities in Congress. It was lauded by the president, Richard M. Nixon as “a long-felt need.”

Today, the CPSC is hampered by congressionally imposed barriers and insufficient funding. It can no longer do its job effectively.

The barriers include a “gag order” provision, inserted in 1981 amendments to the law that prohibits the Commission from issuing safety warnings or recalls to the public about imminent product hazards without a long, trial-type hearing.

A recent case in point is an action filed in July by the CPSC against the retail giant Amazon over the sale of thousands of dangerous consumer products, such as faulty carbon monoxide detectors, flammable children’s pajamas and electrically defective hair dryers. CPSC was forced to sue in administrative trials before it could warn people about the hazards. Most safety agencies do not face such a barrier prior to warning the public.

CPSC negotiated with Amazon for months over a “voluntary” recall and public warning, but the agency lacked the legal authority to order Amazon (or any other seller) to act short of a formal trial and court order.

Another strangling provision, added in 1981, mandates CPSC’s reliance on weak, voluntary safety standards, largely written by the manufacturers of the suspect products before writing tougher government rules.

The sad state of consumer safety is clear in the case of the Fisher-Price Rock ’n Play inclined infant sleeper. Despite a documented risk of suffocation to infants who slept in it, the Rock ‘n Play stayed on the market for ten years, from 2009 to 2019, without a company recall and without the Commission having the power to warn parents of the danger. At least 50 infants died before the company was forced, by an accidental leak of the data by Consumer Reports magazine, to recall the Rock’ n Play in 2019.

In June, this year the House Committee on Oversight and Reform issued a report warning that the Commission does not have adequate regulatory or enforcement powers to protect the public.

Consumer product manufacturers the House committee concluded, “are largely left to police themselves by a flawed federal safety law.” Fisher-Price was thus permitted by the law to conduct its own research into the safety of its own product and at the same time block attempts by the Commission to issue a public warning of the danger.

How could this shocking lapse happen? 
The Commission decisions are made by a majority of commissioners. Other federal safety agencies, such as the National Highway Safety Traffic Administration and the Environmental Protection Agency are directed by single administrators, a much less cumbersome structure. In order to act, the Commission must prove in a long, formal administrative trial or before a federal court that it should be allowed to issue a public warning. 

Most other federal agencies are not saddled by a legal “gag rule.” The original law enacted by Congress in 1972 did not contain such burdensome procedures before a public warning or recall could be issued. But in 1980, Republicans won the Senate, made major gains in the House and elected Ronald Reagan President based in large part on his pledge to “deregulate” American industry. The new Congress inserted the formal hearing “gag rule” in section 6(b) of the Act and also added the dominant role of voluntary industry standards. Both hurdles still exist today. 

What else is wrong with today’s CPSC? It’s funding has drastically shrunk. In 1972, the Commission started with a budget of $34.7 million and 786 staff members (including safety engineers and investigators). Adjusting for inflation that first budget was equivalent to roughly $223 million in today’s dollars. But by 2019, the Commission’s real funding had shrunk by almost half to $127 million. That is to police the safe sale of at least 15,000 constantly changing consumer products.

For example, government oversight has included such dangerous products as crib bumpers and crib netting that choked and suffocated infants, jogging strollers whose wheels suddenly fell off tossing babies to the ground and high-powered “toy” magnets that are swallowed by children requiring major surgery.

To correct the failures of a law passed with such high hopes so many years ago Congress should make major changes:

1. Replace the often-deadlocked Commission with a presidentially- appointed administrator.

2. Increase the Commission’s current budget to keep up with annual inflation and the growing consumer product market.

3. Repeal the infamous “gag rule” that eliminates the Commission’s ability to promptly alert the public to often deadly consumer products. Manufacturers would still receive notice from the agency of a proposed recall and have a chance to respond.

Americans deserve a government that can insure that unsafe consumer products are not on the market. What was a “long felt need” in President Nixon’s time still is.

Michael R. Lemov is an attorney who served as Counsel for the House Commerce Committee under chairman John Moss and is the author of People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights; Fairleigh Dickinson University Press, 2011, and Car Safety Wars: 100 Years of Technology, Politics and Death; Fairleigh Dickinson University Press, 2015. Mr. Lemov was a principal author of the Consumer Product Safety Act and other federal safety statutes.