CPSIA – More Lives "Saved" by the CPSIA Database

These breathtaking database entries were submitted to me by Anonymous in a comment on my previous database blogpost.

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.

Read more here:
CPSIA – Can You Trust Me on the CPSIA Database?

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.

Read more here:
CPSIA – Can You Trust Me on the CPSIA Database?

CPSIA – ICPHSO Mock Civil Penalty Jury Exercise

There has been only ONE court decision relating to late reporting penalties, and it was a resounding victory for the government. A juice company lost a case in California in federal court. Since there is no little law on the subject, the presenters today assert that there is no way to predict how a future case might be decided.

The panel today:

• Eric Rubel, Arnold & Porter LLP
• Cheryl Falvey, GC of CPSC
• Sean Laane, Arnold & Porter LLP
• Richard Levie, retired Judge and current arbitrator/mediator
• Mary Murphy, Asst GC, Div. of Compliance, CPSC

The panel presentation was designed as a mock trial. Both sides of the case will be presented, and you can clearly how both sides will portray this incident and both are compelling.

First to present was Mary Murphy on behalf of the government. She emphasized the facts of the injury to the child. This is clearly how you and your company will be made to look worst. This is no surprise and is standard fare for a plaintiff in a lawsuit. She likewise related the prior reporting of the risk or incidents (to the company and to the CPSC) that suggested the hazard.

Needless to say, this is the reason that consumer groups want the database. They want to create a body of evidence to coerce product changes ahead of injuries. Of course, any responsible company monitors market data (such as consumer reports) to do just that sort of thing. The database, however, is fodder for lawsuits and facilitates this kind argument. The likely impact is that the cases of plaintiffs will be strengthened and awards will grow.

Shall we take a trip down memory lane and remind ourselves of the principal source of funding for the consumer groups active in children’s product safety? Are you surprised to know that it is trial lawyers and the plaintiffs bar?

Back to the presentation of Ms. Murphy. She’s doing a good job making the manufacturer look bad, almost venal. She links the injury back to a failure to report. This is because of the asserted critical role of the CPSC in keeping America safe. She poses the question “would this injury have occurred but for the failure to report?” She argues that ten reports from consumers (of the hazard, loose beads on a high chair, not injuries) created an obligation to report based on a substantial risk of injury or death. She likewise anticipates that the defense will be that the manufacturer had no duty to report. She says that the late reporting only took place when the manufacturer’s back was “up against the wall”. Again, Murphy emphasizes her story about the motivation or mental state of the company.

More evidence used against the company included multiple written reports by the CPSC to them of consumer complaints. Ms. Murphy is painting a clear picture of a company that is not acting on a known safety issue. She indicates that the company ignored this information based on poor advice, despite internal admissions that “this was an accident waiting to happen”.

You can see that the facts of this hypothetical case opens manufacturers up to bad behavior portrayals. I applaud the effort to make this clear – you need to take this on board. The facts of this case appear extreme and objectionable. Media and political over-reaction to this kind of corporate behavior sent the REST OF US down the river under the CPSIA.

The defense was offered by Sean Laane. He noted the responsible behavior of the company by repeatedly testing the goods using CPSC standards and CPSC-accredited independent labs. Noted that the CPSC tested the product TWICE after reports of incidents from consumers – and the products passed! [Note that any safety system that overly depends on testing will ALWAYS expose a company to risk if it is distracted from or chooses to ignore contrary information from the market. This is a basic flaw in the reasoning of the consumer groups and the folks behind the CPSIA.] He goes on to note that the CPSC can’t have it both ways, since it never concluded that action was required based on the incidents it was aware of. After all, the CPSC had several reports and did nothing. Claims the CPSC takes a “gotcha” approach because although it claims “late reporting”, it was well-aware of the issue long before the injury – and did nothing.

Laane notes the extensive investment of this company in safety. He questions whether there was a reasonable basis to conclude that there was an unreasonable risk of injury or death. Clearly the CPSC didn’t feel it was an unreasonable risk itself! Also notes that you don’t have to tell the CPSC about information the agency already possesses. Notes repeatedly that the CPSC’s actions or inaction are based on their expertise and fact findings, thus confirming the reasonableness of the company’s approach. Notes that companies have no obligation to make products utterly indestructible.

Laane noted that the person inside the company who called the condition “an accident waiting to happen” was not a QC person or responsible manager. Instead, he was a customer service rep, and relayed that message to the QC department for their evaluation. Child who was injured later fully recovered, and the company chose to immediately initiate a Fast Track recall.

An interesting point made by Levie is that the company’s awareness of similar issues in similar products can be held against them. If they knew or SHOULD HAVE KNOWN about other recalls or notorious injury incidents reflects on their later decisions or inaction. [I am glad I don't make baby monitors . . . . This is a good lesson on the reality of the problem of "emerging hazards". Note that you are going to be judged not just on what you know, but also on what they assert you SHOULD have known.]

CF: One of the most persuasive arguments made by defendants is a track record of reporting to the CPSC. This shows a commitment to safety and cooperation with the CPSC, demonstrating trust that the CPSC will not recall product everytime.

Levie agreed that this fact pattern will also be persuasive to a judge.

All market participants need to think about this kind of issue and how they might fare if they face a similar dilemma.

Read more here:
CPSIA – ICPHSO Mock Civil Penalty Jury Exercise

CPSIA – Reaction to my Testing Guidance Comments

On November 11, I published my thoughts on the recently-announced Testing Guidance. These guidelines will be the subject of the upcoming two-day workshop at the CPSC on Dec. 10/11.

In my blogpost, I noted that children’s products with paint require independent testing while painted non-children’s products used in the home and around children only require a GCC, no testing. That makes NO sense to me, as explained in my blogpost.

I received a series of emails from a regular reader of this space, someone with a great deal of expertise in the CPSC and its practices. Let’s just say, this person knows quite a bit more than me. Here’s what my reader said in reply to this essay:

“I think the implication that children’s products needed some special class of testing by someone other than the manufacturer was highly questionable to begin with. (Put another way, why should we distrust children’s product manufacturers? Or in the alternative, is the risk from such products really so much higher that special safeguards were necessary? In truth, most of the serious injuries and deaths that led to recalls were because of defects and not because of non-compliance with rules that you could test for.)

. . . .

Unfortunately, there seems to be a national trend–including other agencies and state and local governments–of legislating requirements based on junk science disseminated by interest groups. This leads not only to incredible costs, or loss of product for consumers, but diverts the attention and resources of the agencies from their core mission of reducing deaths, injury, and illness. That is the ultimate irony here: that in promoting safety some of these presumably well intentioned people are in fact likely decreasing the public safety.”

Score one for people that actually know what they’re talking about! Couldn’t say it better myself (although I have been trying for about a year).

Read more here:
CPSIA – Reaction to my Testing Guidance Comments