[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
PROTECTING AMERICANS FROM DANGEROUS PRODUCTS: IS THE CONSUMER PRODUCT
SAFETY COMMISSION FULFILLING ITS MISSION?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CONSUMER PROTECTION AND COMMERCE
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
APRIL 9, 2019
__________
Serial No. 116-23
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
govinfo.gov/committee/house-energy
energycommerce.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
39-670 PDF WASHINGTON : 2020
--------------------------------------------------------------------------------------
COMMITTEE ON ENERGY AND COMMERCE
FRANK PALLONE, Jr., New Jersey
Chairman
BOBBY L. RUSH, Illinois GREG WALDEN, Oregon
ANNA G. ESHOO, California Ranking Member
ELIOT L. ENGEL, New York FRED UPTON, Michigan
DIANA DeGETTE, Colorado JOHN SHIMKUS, Illinois
MIKE DOYLE, Pennsylvania MICHAEL C. BURGESS, Texas
JAN SCHAKOWSKY, Illinois STEVE SCALISE, Louisiana
G. K. BUTTERFIELD, North Carolina ROBERT E. LATTA, Ohio
DORIS O. MATSUI, California CATHY McMORRIS RODGERS, Washington
KATHY CASTOR, Florida BRETT GUTHRIE, Kentucky
JOHN P. SARBANES, Maryland PETE OLSON, Texas
JERRY McNERNEY, California DAVID B. McKINLEY, West Virginia
PETER WELCH, Vermont ADAM KINZINGER, Illinois
BEN RAY LUJAN, New Mexico H. MORGAN GRIFFITH, Virginia
PAUL TONKO, New York GUS M. BILIRAKIS, Florida
YVETTE D. CLARKE, New York, Vice BILL JOHNSON, Ohio
Chair BILLY LONG, Missouri
DAVID LOEBSACK, Iowa LARRY BUCSHON, Indiana
KURT SCHRADER, Oregon BILL FLORES, Texas
JOSEPH P. KENNEDY III, SUSAN W. BROOKS, Indiana
Massachusetts MARKWAYNE MULLIN, Oklahoma
TONY CARDENAS, California RICHARD HUDSON, North Carolina
RAUL RUIZ, California TIM WALBERG, Michigan
SCOTT H. PETERS, California EARL L. ``BUDDY'' CARTER, Georgia
DEBBIE DINGELL, Michigan JEFF DUNCAN, South Carolina
MARC A. VEASEY, Texas GREG GIANFORTE, Montana
ANN M. KUSTER, New Hampshire
ROBIN L. KELLY, Illinois
NANETTE DIAZ BARRAGAN, California
A. DONALD McEACHIN, Virginia
LISA BLUNT ROCHESTER, Delaware
DARREN SOTO, Florida
TOM O'HALLERAN, Arizona
------
Professional Staff
JEFFREY C. CARROLL, Staff Director
TIFFANY GUARASCIO, Deputy Staff Director
MIKE BLOOMQUIST, Minority Staff Director
Subcommittee on Consumer Protection and Commerce
JAN SCHAKOWSKY, Illinois
Chairwoman
KATHY CASTOR, Florida CATHY McMORRIS RODGERS, Washington
MARC A. VEASEY, Texas Ranking Member
ROBIN L. KELLY, Illinois FRED UPTON, Michigan
TOM O'HALLERAN, Arizona MICHAEL C. BURGESS, Texas
BEN RAY LUJAN, New Mexico ROBERT E. LATTA, Ohio
TONY CARDENAS, California, Vice BRETT GUTHRIE, Kentucky
Chair LARRY BUCSHON, Indiana
LISA BLUNT ROCHESTER, Delaware RICHARD HUDSON, North Carolina
DARREN SOTO, Florida EARL L. ``BUDDY'' CARTER, Georgia
BOBBY L. RUSH, Illinois GREG GIANFORTE, Montana
DORIS O. MATSUI, California GREG WALDEN, Oregon (ex officio)
JERRY McNERNEY, California
DEBBIE DINGELL, Michigan
FRANK PALLONE, Jr., New Jersey (ex
officio)
C O N T E N T S
----------
Page
Hon. Jan Schakowsky, a Representative in Congress from the State
of Illinois, opening statement................................. 1
Prepared statement........................................... 3
Hon. Cathy McMorris Rodgers, a Representative in Congress from
the State of Washington, opening statement..................... 3
Prepared statement........................................... 4
Hon. Frank Pallone, Jr., a Representative in Congress from the
State of New Jersey, opening statement......................... 5
Prepared statement........................................... 7
Hon. Greg Walden, a Representative in Congress from the State of
Oregon, opening statement...................................... 8
Prepared statement........................................... 10
Witnesses
Robert S. Adler, Commissioner, Consumer Product Safety Commission 11
Prepared statement........................................... 14
Answers to submitted questions............................... 135
Dana Baiocco, Commissioner, Consumer Product Safety Commission... 22
Prepared statement........................................... 25
Answers to submitted questions............................... 138
Ann Marie Buerkle, Actinig Chairman, Consumer Product Safety
Commission..................................................... 31
Prepared statement........................................... 33
Answers to submitted questions............................... 142
Peter A. Feldman, Commissioner, Consumer Product Safety
Commission..................................................... 37
Prepared statement........................................... 39
Answers to submitted questions \1\
Elliot F. Kaye, Commissioner, Consumer Product Safety Commission. 43
Prepared statement........................................... 45
Answers to submitted questions............................... 160
Rachel Weintraub, Legislative Director and General Counsel,
Consumer Federation of America................................. 76
Prepared statement........................................... 79
Answers to submitted questions............................... 162
Remington A. Gregg, Counsel for Civil Justice and Consumer
Rights, Public Citizen......................................... 89
Prepared statement........................................... 91
S. Mike Gentine, Counsel, Schiff Hardin, LLP..................... 101
Prepared statement........................................... 103
Answers to submitted questions............................... 164
Nancy Cowles, Executive Director, Kids In Danger................. 109
Prepared statement........................................... 111
Submitted Material
Letter of April 5, 2019, from Marc Rotenberg, President, and
Caitriona Fitzgerald, Policy Director, Electronic Privacy
Information Center, to Ms. Schakowsky and Mrs. Rodgers,
submitted by Ms. Schakowsky.................................... 126
----------
\1\ Mr. Feldman's response to questions submitted for the record has
been retained in committee files and also is available at https://
docs.house.gov/meetings/IF/IF17/20190409/109316/HHRG-116-IF17-Wstate-
FeldmanP-20190409-SD001.PDF.
Letter of February 27, 2019, from Ann Marie Buerkle, Acting
Chairman, Consumer Product Safety Commission, to Richard
Rosati, ASTM Subcommittee Chair for F15.42, Furniture Safety,
submitted by Ms. Schakowsky.................................... 129
Letter of April 9, 2019, from Graham Owens, Director, Legal &
Regulatory Policy, National Association of Manufacturers,
submitted by Ms. Schakowsky.................................... 131
PROTECTING AMERICANS FROM DANGEROUS PRODUCTS: IS THE CONSUMER PRODUCT
SAFETY COMMISSION FULFILLING ITS MISSION?
----------
TUESDAY, APRIL 9, 2019
House of Representatives,
Subcommittee on Consumer Protection and Commerce,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:13 a.m., in
room 2322, Rayburn House Office Building, Hon. Jan Schakowsky
(chairwoman of the subcommittee) presiding.
Members present: Representatives Schakowsky, Castor,
Veasey, Kelly, O'Halleran, Cardenas, Blunt Rochester, Rush,
Matsui, McNerney, Dingell, Pallone (ex officio), Rodgers
(subcommittee ranking member), Upton, Burgess, Latta, Guthrie,
Bucshon, Hudson, Carter, and Walden (ex officio).
Also present: Representative Griffith.
Staff present: Jeffrey C. Carroll, Staff Director; Alex
Chasick, Counsel; Evan Gilbert, Deputy Press Secretary; Lisa
Goldman, Senior Counsel; Waverly Gordon, Deputy Chief Counsel;
Tiffany Guarascio, Deputy Staff Director; Alex Hoehn-Saric,
Chief Counsel, Communications and Consumer Protection; Meghan
Mullon, Staff Assistant; Kaitlyn Peel, Digital Director; Alivia
Roberts, Press Assistant; Chloe Rodriguez, Policy Analyst; Ben
Rossen, FTC Detailee; Mike Bloomquist, Minority Staff Director;
Adam Buckalew, Minority Director of Coalitions and Deputy Chief
Counsel, Health; Melissa Froelich, Minority Chief Counsel,
Consumer Protection and Commerce; Theresa Gambo, Minority
Financial and Office Administrator; Peter Kielty, Minority
General Counsel; Bijan Koohmaraie, Minority Counsel, Consumer
Protection and Commerce; Brannon Rains, Minority Staff
Assistant; and Nate Wilkins, Minority Fellow.
Ms. Schakowsky. The hearing of the Consumer Protection and
Commerce Subcommittee will come to order.
The Chair will now recognize herself for 5 minutes for an
opening statement.
OPENING STATEMENT OF HON. JAN SCHAKOWSKY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
I want to thank our panel so much for being here, both of
our panels, and for our Members for being here.
I want to tell you that consumer protection is my passion
and what really first drew me to public life. As many Members
will recall, I like to call our subcommittee the Nation's
legislative help line and nowhere is there more evidence of
this in its oversight of the Consumer Product Safety
Commission.
The fundamental questions that we must answer today is
found in the hearing's title: Is the Consumer Product Safety
Commission fulfilling its mission to protect consumers?
Unfortunately for consumers, the data doesn't suggest that
the CPSC is doing all it can to fulfill its mission. CPSC's
ability to protect consumers from unsafe products relies on its
ability to conduct effective and efficient investigations and
issue recalls.
However, over the last 3 years, the CPSC recall actions
have slowed dramatically. In 2016, when Commissioner Kaye was
serving as chairman, the Commission issued 332 recalls.
Since then, that number has sunk pretty precipitously as
last year there were only 258 recalls issued.
Now, don't misunderstand me. I would love to believe that
the decrease in the recalls was the result of more effective
regulation and higher quality, safer products being brought to
the market.
The reality is, however, a survey conducted by Kids in
Danger revealed that the number of incident reports in
children's products actually increased over that time, which
suggests that the CPSC is moving slowly to open cases and
recall unsafe products, or worse, not moving much at all.
All of this comes as many of these products are becoming
more and more complex with new challenges for the agency to
tackle. For example, last year, every Christmas we have a
unsafe toys demonstration and for the first time we talked
about connected toys--those that may track our children
wherever they go.
I commend Chairwoman Buerkle for making statements in
support of increased resources for the Commission, in
particular, a proposed initiative to gather information from
urgent care centers in addition to emergency rooms and
including e-commerce platforms in its marketplace analysis.
However, in its budget request the Consumer Products Safety
Commission did not seek an increase, meaning that this and
other plans and initiatives would remain pipe dreams.
I look forward to hearing from Chairwoman Buerkle and the
other Commissioners. I thank you all for being here. It means
so much to us as we discuss these and other important issues
facing consumers.
I am also delighted to hear from consumer groups in our
second panel. Their voice is so very important and it has been
missing, I think, unfortunately, in the last few years on this
subcommittee.
I look forward to working with each of you on the important
issues that the Commission deals with. My preference will
always be to be able to work in collaboration with the CPSC and
all the members of the subcommittee on both sides of the aisle.
I hope the Commissioners will stay for the second panel--I
really want to invite you to do that--where we will hear from
advocates about how furniture tipovers kill one child every 2
weeks, how bed rails can kill senior citizens, and how--and the
need for flame mitigation devices on portable fuel containers.
There are so many things that we can be doing to make the
marketplace safer and this is the subcommittee that actually
can do that.
We look forward to working in collaboration.
[The prepared statement of Ms. Schakowsky follows:]
Prepared Statement of Hon. Jan Schakowsky
Good morning and thank you all for joining us today.
Consumer protection is my passion, and what first drew me to
public life. As many Members will recall, I like to call our
subcommittee the Nation's legislative helpline, and nowhere is
that more evident than its oversight of the Consumer Product
Safety Commission.
The fundamental question we must answer today is found in
the hearing's title: is the Consumer Product Safety Commission
fulfilling its mission to protect consumers?
Unfortunately for consumers, the data doesn't seem to
suggest the CPSC is doing all it can to fulfill its mission.
CPSC's ability to protect consumers from unsafe products relies
on its ability to conduct effective and efficient
investigations and issue recalls. However, over the last 3
years, CPSC recall actions have slowed dramatically. In 2016,
when Commissioner Kaye was serving as chairman, the Commission
issued 332 recalls. In 2017, when Acting Chair Buerkle began
leading the Commission, that number fell to 280, and in 2018,
it sunk even further to 258 recalls issued.
Don't misunderstand me--I would love to believe that the
decrease in recalls was the result of more effective regulation
and higher quality, safer products being brought to market. The
reality is, however, a survey conducted by Kids in Danger
revealed that the number of incidents reported in children's
products increased over that time, which suggests that CPSC is
moving slowly to open cases and recall unsafe products, or
worse, not moving at all.
All of this comes as many of these products are becoming
more complex, with new challenges for the agency to tackle.
Last year, at the Christmas event I hold on unsafe toys in
Chicago, for the first time we talked about connected-toys, and
the challenges they can bring.
I commend Chairwoman Buerkle for making statements in
support of increased resources for the Commission, in
particular a proposed initiative to gather information from
urgent care centers in addition to emergency departments and
including e-commerce platforms in its marketplace analysis.
However, in its budget request submission to Congress, the
Commission would be flat-funded, meaning this and other
initiatives would remain pipe dreams. I look forward to hearing
from Chairwoman Buerkle and the other Commissioners as we
discuss these and other important issues facing consumers.
I am also delighted to hear from consumer groups in our
second panel. Their voice has been missing, unfortunately, the
last few years on this subcommittee.
I look forward to working with each of you on the important
issues the Commission deals with.
I now yield to Ranking Member Cathy McMorris Rogers for 5
minutes.
Ms. Schakowsky. And now I yield to Ranking Member Cathy
McMorris Rodgers for 5 minutes.
OPENING STATEMENT OF HON. CATHY McMORRIS RODGERS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON
Mrs. Rodgers. Good morning, and I thank the Chair for
yielding. Welcome to the Consumer Protection and Commerce
Subcommittee hearing with the Consumer Product Safety
Commission. It is great to see everyone.
Thank you to Acting Chair Ann Marie Buerkle, my former
colleague--our former colleague--as well as the Commissioners
Baiocco, Feldman, Kaye, and Adler all for being here today to
discuss the Commission's mission and important work.
Even though it has only been 6 months with all five of you
at the Commission, I am looking forward to hearing directly
from you.
I will begin by congratulating my good friend and former
colleague, Chair Buerkle, for advancing through the Senate
Commerce Committee last week. My hope is the Senate will ask
swiftly to confirm you as chair of the Commission.
Constitutional concerns with agency action prior to your
nomination and the delays with your nomination clearly
demonstrate why your confirmation and leadership are so needed
at the agency.
Chair Buerkle, you have been steadfast in your efforts to
advance the safety mission of the agency, even when you spent
the majority of the last 2 years in the minority at the
Commission.
I would like to ensure you have time this morning to
address some recent questioning of your motives and your
leadership at the Commission. As a nurse, lawyer, mother, and
grandmother, I know how important safety is to you in your
career in public service.
It is apparent that some are still trying to delay or halt
your confirmation in the Senate because, by law, you are
required to leave the Commission in October if you have not
been confirmed.
That would leave the Commission at a deadlock, 2-2, only
increasing uncertainty. Why that would be anyone's goal with an
agency as important as the CPSC is beyond me.
I urge the Senate to advance your confirmation as soon as
possible. I want you to know your hard work and dedication to
protect Americans has not gone unnoticed.
The Consumer Product Safety Commission, or CPSC, was
established in 1972. The Commission is charged with protecting
the public against unreasonable risk of injuries and deaths
associated with consumer products.
The CPSC's jurisdiction covers over 15,000 products that
are sold to and used every day in our homes, our schools,
businesses, and elsewhere.
However, the CPSC does not have jurisdiction over tobacco
products, motor vehicles, aircrafts, boats, food, drugs, and
the like.
CPSC's primary functions are to develop voluntary standards
with industry or create mandatory standards where no adequate
voluntary standard exists, to organize recalls of dangerous
products that pose a risk to people, and to investigate
potentially hazardous products.
The structure of the statute is critical. It recognizes the
important of the agency having open lines of communication with
the sectors of our economy that they regulate.
When something does go wrong, there are processes in place
that take products off the shelves or websites as quickly as
possible. This is why members of this committee have been such
strong supporters of the fast track recall program, as one
example.
The work you have done and your staff do is so important. I
look forward to our discussion here today and I thank you all
for being here.
I yield back.
[The prepared statement of Mrs. Rodgers follows:]
Prepared Statement of Hon. Cathy McMorris Rodgers
Good morning and welcome to the Consumer Protection and
Commerce Subcommittee hearing with the Consumer Product Safety
Commission.
Thank you to Acting Chair Ann Marie Buerkle, our former
colleague, as well as Commissioners Biacco, Feldman, Kaye, and
Adler for being here today to discuss the Commission's mission
and important work.
Even though it has only been 6 months with all five of you
at the Commission, I'm looking forward to hearing directly from
you.
I'll begin by congratulating my good friend and former
colleague Chair Buerkle for advancing through the Senate
Commerce Committee last week.
My hope is the Senate will act swiftly to confirm you as
Chair of the Commission.
Constitutional concerns with agency action prior to your
nomination and the delays with your nomination, clearly
demonstrate why your confirmation and leadership are so needed
at the agency.
Chair Buerkle, you have been steadfast in your efforts to
advance the safety mission of the agency, even when you spent
the majority of the last 2 years in the minority at the
Commission.
During your tenure, the Commission has implemented or
revised more than 12 standards; helped improve window covering
safety pushed industry to utilize flow restrictions on liquid
nicotine packaging to improve safety and reduce risks to
children; and has secured tens of millions of dollars in civil
penalties.
I would like to ensure you have time this morning to
address recent questioning of your motives and your leadership
at the Commission. As a nurse, lawyer, mother, and grandmother,
I know how important safety is to you and your career in public
service.
It's apparent that some are still trying to delay and halt
your confirmation in the Senate because--by law--you are
required to leave the Commission in October if you have not
been confirmed.
That would leave the Commission at a deadlock 2-2. Only
increasing uncertainty. Why that would be anyone's goal with an
agency as important as the CPSC is beyond me. I urge the Senate
to advance your confirmation as soon as possible. I want you to
know your hard work and dedication to protect Americans has not
gone unnoticed. Thank you.
The Consumer Product Safety Commission, or the CPSC, was
established in 1972. The Commission is charged with protecting
the public against unreasonable risks of injuries and deaths
associated with consumer products.
The CPSC's jurisdiction covers over 15,000 products.that
are sold to and used every day our homes, schools, businesses,
and elsewhere. However, the CPSC does not have jurisdiction
over tobacco products, motor vehicles, aircrafts, boats, food,
drugs, and the like.
The CPSC's primary functions are to: develop voluntary
standards with industry or create mandatory standards where no
adequate voluntary standard exists to organize recalls of
dangerous products that pose a risk to people; and to
investigate potentially hazardous products.
The structure of the statute is critical. It recognizes the
importance of the agency having open lines of communication
with the sectors of our economy that they regulate. When
something does go wrong, there are processes in place that take
products off the shelves or websites as quickly as possible.
This is why members of this committee have been such strong
supporters of the Fast Track Recall program as one example. The
work you and your staff do is important. I look forward to our
discussion today and thank you for being here.
I yield back.
Ms. Schakowsky. And now I am proud to yield 5 minutes to
the chair of the full committee, Frank Pallone.
OPENING STATEMENT OF HON. FRANK PALLONE, Jr., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Madam Chair.
Few people have heard of the Consumer Product Safety
Commission but it serves a critical role in protecting
consumers from dangerous products. It is the agency that makes
sure your coffee maker does not burn down your house, your baby
does not die from a defective crib, your power drill doesn't
electrocute you, your hot water heater does not poison you,
your child's toy is not made of lead, et cetera, and these are
all real examples of defective products that have been
recalled, and they demonstrate the important role the
Commission should play in protecting consumers.
In order to be fully effective, CPSC needs to be a
proactive agency, not a reactive one. But, unfortunately, I am
concerned that CPSC has become an inactive agency. The fact is
that CPSC is issuing fewer recalls than in years past.
It is issuing fewer safety standards and it is imposing
fewer and smaller penalties. The marketplace hasn't suddenly
become safer, as our second panel will attest.
Instead, CPSC's inaction comes from the top and it leaves
me wondering how many more dangerous products are out there and
what, if anything, is being done by the Commission to prevent
further deaths and injuries.
Inaction is simply not acceptable, but Acting Chairman
Buerkle seems to be pushing just that after stating that one of
her top priorities was, I quote, ``reducing regulatory
burdens'' and she voted against imposing safety standards for
infant slings, table saws, magnet sets, and portable generators
and she also voiced her opposition to civil penalties and her
hope that CPSC would not impose them.
So this is not a record that puts consumers' safety first,
in my opinion, but again, it seems that is not the priority of
the Acting Chairman.
She has been true to her word to reduce regulatory burdens.
Under Acting Chairman Buerkle, CPSC has also failed to hold
corporations accountable for selling hazardous products, at
times even working with industry to, in my opinion, sabotage
the agency's own efforts to save lives.
Under previous leadership, the CPSC began a rulemaking on
portable generator safety, including standards for carbon
monoxide emissions that result in an average of 73 deaths per
year.
But after industry lobbyists convinced former EPA
Administrator Scott Pruitt to assert jurisdiction over carbon
monoxide emissions, the Acting Chairman Buerkle sided with the
EPA and industry to stop the rulemaking and as of today, the
EPA has taken no action, and people continue to die.
Now, when consumers complained that a defective wheel in
Britax strollers was causing serious injuries, CPSC sued,
seeking a recall over the objections of then Commissioner
Buerkle.
After two Republican Commissioners joined CPSC, they voted
to settle the litigation on terms favorable to the company, not
to consumers, and the settlement did not even call the needed
repair a recall, leaving parents confused and children at risk.
The trend of favoring industry over consumers is troubling
and I want to hear from the Commissioners and consumer
advocates about the direction that the Commission is headed.
I also want to hear about CPSC's actions on an array of
specific hazards. Three years ago, I helped pass the Child
Nicotine Poisoning Prevention Act, requiring child-proof
packaging for liquid nicotine containers.
Those can kill children if ingested, and I am hearing that
CPSC is not doing enough to keep these deadly products out of
children's hands. I am also disappointed that the Commission
voted against beginning a rulemaking on children's dressers
last month and I would like to know what CPSC is doing to
prevent deadly furniture tipovers, which Chairman Schakowsky
has been calling attention to for years.
I also want to know about CPSC's efforts to ensure the
safety of sleeping infants and how it is incorporating
pediatricians' advice into its evaluation of inclined sleepers
and crib bumpers.
Consumer advocates have argued that these products are
inherently dangerous and should be banned, yet they are still
for sale at baby stores and online. And despite several deaths
associated with inclined sleepers, CPSC wouldn't name the
specific product until days before this hearing.
So it shouldn't take a congressional hearing to get CPSC to
do its job and prevent babies from dying and I continue to have
concerns about e-commerce sites letting unsafe counterfeit
products be shipped directly to consumers' front doors. These
products have no testing or quality control and are a growing
danger.
So as you can see, there is a long list of dangerous
products that remain on the market because CPSC has failed to
do its job. It is long past time this committee conduct
oversight of the CPSC and bring attention to these many product
safety concerns.
So I want to thank the chairwoman for having this hearing
and, you know, we have been talking about these for long before
you were the Chair and now, finally, have an opportunity to do
some good oversight, and I appreciate that.
Thank you.
[The prepared statement of Mr. Pallone follows:]
Prepared Statement of Hon. Frank Pallone, Jr.
Few people have heard of the Consumer Product Safety
Commission (CPSC) but it serves a critical role in protecting
consumers from dangerous products. It is the agency that makes
sure your coffee maker does not burn down your house, your baby
does not die from a defective crib, your power drill does not
electrocute you, your hot water heater does not poison you, and
your child's toy is not made of lead.
These are all real examples of defective products that have
been recalled, and they demonstrate the important role the
Commission should play in protecting consumers.
In order to be fully effective, CPSC needs to be a
proactive agency, not a reactive one. Unfortunately, I'm
concerned that CPSC has become an inactive agency.
The fact is that CPSC is issuing fewer recalls than in
years past. It is issuing fewer safety standards. And it is
imposing fewer and smaller penalties. The marketplace hasn't
suddenly become safer-as our second panel will attest. Instead,
CPSC's inaction comes from the top, and it leaves me wondering
how many more dangerous products are out there and what, if
anything, is being done by the Commission to prevent further
deaths and injuries.
Inaction is simply not acceptable, but Acting Chairman
Buerkle seems to be pushing just that after stating that one of
her top priorities was ``reducing regulatory burdens.'' She
voted against imposing safety standards for infant slings,
table saws, magnet sets, and portable generators. She also
voiced her opposition to civil penalties and her hope that CPSC
would not impose them.
This is not a record that puts consumers' safety first, but
again, it seems that is not the priority of the Acting
Chairman. She has been true to her word to reduce regulatory
burdens. Under Acting Chairman Buerkle, CPSC has also failed to
hold corporations accountable for selling hazardous products,
at times even working with industry to sabotage the agency's
own efforts to save lives.
Under previous leadership, CPSC began a rulemaking on
portable generator safety, including standards for carbon
monoxide emissions that result in an average of 73 deaths each
year. But after industry lobbyists convinced former EPA
Administrator Scott Pruitt to assert jurisdiction over carbon
monoxide emissions, Acting Chairman Buerkle sided with the EPA
and industry to stop the rulemaking. As of today, the EPA has
taken no action, and people continue to die.
When consumers complained that a defective wheel in Britax
strollers was causing serious injuries, CPSC sued seeking a
recall over the objections of then Commissioner Buerkle. After
two Republican Commissioners joined CPSC, they voted to settle
the litigation on terms favorable to the company--not
consumers. The settlement did not even call the needed repair a
recall, leaving parents confused and children at risk.
The trend of favoring industry over consumers is troubling.
I want to hear from the Commissioners and consumer advocates
about the direction that the Commission is headed.
I also want to hear about CPSC's actions on an array of
specific hazards.
Three years ago, I helped pass the Child Nicotine Poisoning
Prevention Act, requiring child-proof packaging for liquid
nicotine containers. Liquid nicotine can kill children if
ingested. I'm hearing that CPSC is not doing enough to keep
these deadly products out of children's hands.
I am also disappointed that the Commission voted against
beginning a rulemaking on children's dressers last month. I
would like to know what CPSC is doing to prevent deadly
furniture tipovers, which Chair Schakowsky has been calling
attention to for years.
I want to know about CPSC's efforts to ensure the safety of
sleeping infants, and how it is incorporating pediatricians'
advice into its evaluation of inclined sleepers and crib
bumpers. Consumer advocates have argued that these products are
inherently dangerous and should be banned, yet they are still
for sale at baby stores and online. Despite several deaths
associated with inclined sleepers, CPSC wouldn't name the
specific product until days before this hearing. It shouldn't
take a Congressional hearing to get CPSC to do its job and
prevent babies from dying.
I continue to have concerns about e-commerce sites letting
unsafe counterfeit products be shipped directly to consumers'
front doors. These products have no testing or quality control
and are a growing danger.
This is a long list of dangerous products that remain on
the market because CPSC has failed to do its job. It's long
past time this committee conduct oversight of the CPSC and
bring attention to these many product safety concerns.
Thank you, and I yield back my time.
Ms. Schakowsky. The gentleman yields back. I appreciate the
comment.
And now I would like to recognize Mr. Walden, the ranking
member of the full committee, for 5 minutes for his opening
statement.
OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. Walden. Well, good morning, Madam Chair, and thanks for
having the hearing today with the Consumer Product Safety
Commission.
I especially want to extend a warm welcome to our former
colleague and friend, current Acting Chair of the CPSC, Ann
Marie Buerkle. It is good to see you again.
Hopefully, your recent third vote of confidence by the
Senate Commerce Committee will be the charm and your
confirmation will move swiftly through the United States
Senate.
In her short time as Acting Chair, Ms. Buerkle has put
consumer safety first. Under her leadership, the Commission
has, among other items, implemented or revised more than 12
safety standards, helped improve window covering safety, pushed
industry to utilize flow restrictions on liquid nicotine
packaging to improve safety and reduce risk to children, and
has secured tens of millions of dollars in civil penalties
against bad actors.
I want to thank you for your work, and I look forward to
your continued commitment to safety as you continue on as our
confirmed Chair. The CPSC is a critical safety agency that must
have clear leadership.
There are significant constitutional questions with respect
to actions taken by the CPSC and the absence of such leadership
from President Trump's inauguration through the fall of 2017.
During the time, the agency consisted of only one
Republican Commissioner, Acting Chair Buerkle, to three
Democrat Commissioners, and such questions may require the
agency to divert resources needed to fulfil its safety mission
to deal with potential legal challenges.
It's imperative that the CPSC's process actually works to
protect consumers and not lead to expensive and unneeded
litigation. CPSC must rely on up to date scientifically sound
data to base its decisions and not prejudge or litigate in the
court of public opinion.
I am encouraged the agency is turning the corner with
respect to these issues under Acting Chair Buerkle's
leadership. CPSC protects consumers from unreasonable risks,
and we know there are a lot of them out there, and against
hazards from consumer products by working with industry to
establish in many cases voluntary or industry-based standards
by developing mandatory standards where industry-based
standards are not sufficient and through recalls.
Given the size of the CPSC and the breadth of your
jurisdiction, Congress had the foresight to encourage the CPS
to engage industry to carry out its mission in a bipartisan
effort, I might add.
However, some are attempting to discredit the open lines of
communication between the agency and regulated industries. But
shouldn't our goal be to protect consumers in the most
efficient manner possible?
Having an open dialogue and an open line of communication
with industry actually helps the CPSC solve problems earlier
and protect consumers better.
We must continue encouraging the CPSC to engage industry
and in-the-field experts on complex issues with consumer
products. Industry can provide unique expertise and insights
into what is happening in the marketplace and can help identify
potential harms.
So it is no secret that bureaucratic government agencies do
not move fast. Yet, because of industry's willingness to work
with CPSC, programs like the Fast Track Recall Program,
Retailer Reporting Program, and the small business Regulatory
Robot are now up and running.
Cutting industry completely out of the process would
benefit no one and would just increase the risk of keeping
dangerous products potentially in the market longer.
The bottom line is that the CPSC does important work to
help protect children and consumers by working with all
stakeholders and safety remains the Commission's priority, as
it should.
So I thank you all for being here. I thank you all for your
service in this capacity. I know there's a lot on your plate,
and you heard a few more items from up here on the dais.
So I look forward to hearing more about CPSC's agenda and
its efforts to protect consumers.
[The prepared statement of Mr. Walden follows:]
Prepared Statement of Hon. Greg Walden
Good morning and welcome to our subcommittee hearing today
with the Consumer Product Safety Commission.
I would especially like to welcome our former colleague and
current Acting Chair of the CPSC, Ann Marie Buerkle. Hopefully,
your recent third vote of confidence by the Senate Commerce
Committee will be the charm, and your confirmation will move
swiftly through the Senate.
In her short time as Acting Chair, Ms. Buerkle has put
consumer safety first. Under her leadership, the Commission
has--among other items--implemented or revised more than 12
safety standards; helped improve window covering safety; pushed
industry to utilize flow restrictions on liquid nicotine
packaging to improve safety and reduce risks to children; and
has secured tens of millions of dollars in civil penalties
against bad actors.
I want to thank you for your work and look forward to your
continued commitment to safety as confirmed Chair.
The CPSC is a critical safety agency that must have clear
leadership. There are significant constitutional questions with
respect to actions taken by the CPSC in the absence of such
leadership, from President Trump's inauguration through the
Fall of 2017. During that time, the agency consisted of only
one Republican Commissioner, Acting Chair Buerkle, to three
Democrat Commissioners. Such questions may require the agency
to divert resources needed to fulfill its safety mission to
deal with potential legal challenges.
It is imperative that the CPSC's process actually works to
protect consumers and not lead to expensive and unneeded
litigation. The CPSC must rely on up-to-date, scientifically
sound data to base its decisions and not prejudge or litigate
in the court of public opinion. I'm encouraged that the agency
is turning the corner with respect to these issues under Acting
Chair Buerkle's leadership.
The CPSC protects consumers from unreasonable risks, we
know there are a lot of them out there, and hazards from
consumer products by working with industry to establish
voluntary, or industry-based, standards; by developing
mandatory standards where industry-based standards are not
sufficient; and through recalls.
Given the size of the CSPC and the breadth of your
jurisdiction, Congress had the foresight to encourage the CSPC
to engage industry to carry out its mission. In a bipartisan
effort I would add.
However, some are attempting to discredit the open lines of
communication between the agency and regulated industries.
But shouldn't our goal be to protect consumers in the most
efficient manner possible? Having an open dialogue and an open
line of communication with industry helps the CPSC solve
problems earlier and protect consumers better.
We must continue encouraging the CPSC to engage industry
and in-the-field experts on complex issues with consumer
products. Industry provides unique expertise and insights into
what is happening in the marketplace and helps identify
potential harms.
It is no secret that bureaucratic government agencies do
not move fast. Yet, because of industry's willingness to work
with the CSPC, programs like the Fast Track Recall program,
Retailer Reporting Program, and the small business Regulatory
Robot are now up and running.
Cutting industry completely out of the process benefits no
one and increases the risk of keeping dangerous products in the
market longer.
The bottom line is that CPSC does important work to help
protect children and consumers by working with all stakeholders
and safety remains the Commission's priority, as it should.
Thank you to the Commissioners for your service in this
capacity, I know there's a lot on your plate. You've heard of a
few more items from up here on the dais. I look forward to
hearing more about the CPSC's agenda and its efforts to protect
consumers.
Thank you and I yield back.
Mr. Walden. If anyone else wants the remainder of my time,
I would yield to the ranking member of the Health Subcommittee,
Dr. Burgess.
Mr. Burgess. Thank you, Mr. Walden, and I just also wanted
to welcome our former colleague. Ms. Buerkle, you have been
good enough to come and talk to me on several of the issues
that have occurred when I was chairman of this subcommittee
several years ago.
And Commissioner Kaye, I certainly appreciate the time you
invested in making the fireworks demonstration available to
members of the subcommittee and staff.
I don't remember exactly where it was, but it was way out
in the sticks and you did a great job with demonstrating the
rigors that you go through to ensure that fireworks products
are indeed safe.
So thanks all to the Commissioners for being here, and I
will yield back to the ranking member.
Ms. Schakowsky. The gentleman yields back.
The Chair would like to remind Members that, pursuant to
committee rules, all Members' written opening statements shall
be made part of the record.
And now it is my pleasure to introduce our first panel of
witnesses for today's hearing from the Consumer Product Safety
Commission.
Again, it is such an honor that all of you would show up to
this morning. Thank you.
I will go through all of them--all of you first.
Commissioner Robert Adler, Commissioner Dana ``Bye-ah-ko''--am
I saying it right? ``Bee-ah-ko?'' OK, Baiocco. Acting
Chairwoman Ann Marie Buerkle, Commissioner Peter Feldman, and
Commissioner Elliot Kaye.
We want to thank all the witnesses for joining us today. We
look forward to your testimony. At this time, the Chair will
now recognize each witness for 5 minutes--you have all had
experience, I think, with the lights--to provide an opening
statement.
So we are actually going to move in alphabetical order, and
we will begin with a statement from Commissioner Adler. And you
are recognized for 5 minutes.
STATEMENTS OF ROBERT S. ADLER, COMMISSIONER, CONSUMER PRODUCT
SAFETY COMMISSION; DANA BAIOCCO, COMMISSIONER, CONSUMER PRODUCT
SAFETY COMMISSION; ANN MARIE BUERKLE, ACTING CHAIRMAN, CONSUMER
PRODUCT SAFETY COMMISSION; PETER A. FELDMAN, COMMISSIONER,
CONSUMER PRODUCT SAFETY COMMISSION; ELLIOT F. KAYE,
COMMISSIONER, CONSUMER PRODUCT SAFETY COMMISSION
STATEMENT OF ROBERT S. ADLER
Mr. Adler. Good morning, Chairman Schakowsky and Ranking
Member Rodgers and the members of the Subcommittee on Consumer
Protection and Commerce. Thank you for the opportunity to
testify.
I am pleased to be here to discuss an agency that I have
been associated with in some fashion since it opened in 1973
and where I have been a Commissioner since August 2009.
At the outset, I would point out that CPSC is far and away
the smallest of the Federal health and safety agencies with the
current funding level of $127 million and a staff of 539 FTEs
and I want to put our budget in perspective.
I note that we have a sister agency, FDA. They recently
asked for an increase in their budget--an increase in their
budget that is five times the size of our entire budget.
Notwithstanding our modest budget, our jurisdictional scope
is extremely wide, encompassing, roughly, 15,000 categories of
consumer products found in homes, stores, schools, and
recreational settings.
This October is going to mark the 47th anniversary of the
passage of this landmark piece of legislation. Looking back, I
think Congress and the agency should take great pride in what
the agency has accomplished.
I can't go through all the accomplishments but I did want
to focus at least for a moment on the dramatic drop in death
and injuries to children.
Here are just a few statistics. There has been an over--
over an 80 percent drop in childhood fatal poisonings, 70
percent drop in crib deaths, almost 90 percent reduction in
baby walker injuries, and an almost complete elimination of
childhood suffocations in abandoned refrigerators.
We have also seen dramatic drops in fatal electrocutions,
residential fire deaths, and traumatic injuries from
lawnmowers. In short, I think we offer an excellent return on
investment.
I would also like to mention the tremendous strides we've
taken to enforce and implement the Consumer Product Safety
Improvement Act of 2008 since its passage about 10 years ago,
and here I have to pause and thank Chairman Schakowsky for the
critical role she played in the passage of that piece of
legislation.
Among the actions we have taken, enforcing stringent limits
on lead and phthalates in children's products, promulgating the
strongest safety standard in the world for cribs, writing and
continuing to write a series of standards--I believe the count
is now 20--for durable infant products such as play yards and
strollers. I am thrilled with our implementation of the
Consumer Product Safety Improvement Act.
I wish I could share that same degree of pride when it
comes to our other pieces of legislation. But I think there's a
broad disconnect between the effectiveness of our rulemaking
under CPSIA and under the other acts we enforce, and I am going
to briefly explain.
When we were first established in 1973, we promulgated
numerous critical safety rules dealing with hazards such as
flammable children's sleepwear, dangerously shattering glass
panes, and unsafe toys under the traditional rulemaking
procedures in the Administrative Procedure Act.
I did a count. By my count, the agency wrote 24 safety
rules in its first 8 years. That is about three a year. In
1981, however, Congress imposed a cumbersome of procedures on
the agency that have hampered our rulemaking in the years
since, and I did another count.
It has been 38 years since 1981. We have managed to eke out
10 safety rules under these revised procedures. So that is only
about 1 every 3\1/2\ years.
What is even greater concern to me is we have only written
one safety standard under these procedures in the past 10
years. To be blunt, I have little doubt that lives have been
lost and injuries incurred unnecessarily because of these
delays in our rulemaking and with no particular improvement in
the quality of the standards we write.
While I am discussing features of the Consumer Product
Safety Act that I would like to see reformed, I must also
mention an onerous restriction on information disclosure under
which CPSC alone among all Federal agencies must operate and I
refer to the provisions of Section 60 of the Consumer Product
Safety Act.
Unlike any other health and safety act agency, when we
receive a request for information in our files under the
Freedom of Information Act, we can't simply disclose that if it
would allow the public to determine the name of a manufacturer.
In that case, we must send the information to the
manufacturer, wait for comments from the manufacturer, process
the manufacturer's comments, and then and only then make a
decision about whether we would release that information, all
of this done, I might add, with the looming prospect of being
sued if the company doesn't like what we are about to disclose.
And here is what is particularly frustrating about this
provision. It applies to information where we are simply a
repository--we are simply acting as a library. We didn't
generate the information ourselves.
So if we got a request for a list of 50 names of
manufacturers of widgets, in order to release that list we
would have to send out 50 separate notices with 49 names
redacted before we could proceed to release that information.
That is costly both in terms of time and in resources at the
agency.
One quick final point. I would like to share a concern that
I have with an often vulnerable group--vulnerable group of
which I am proud member--senior citizens.
We are one of the fastest growing demographics in the
country. In fact, by 2030 one in five people in this country
will be age 65 or older.
We are living healthier and we need to make sure we are
living safer. Have I gone over my time?
Well, I apologize for that and I will--just a few
additional words about senior citizens, but I can withhold.
Thank you.
[The prepared statement of Mr. Adler follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Schakowsky. And next, Commissioner, if you could move
your name tag in front so we could see that. There we go.
So Commissioner Baiocco, you are recognized for 5 minutes.
Thank you.
STATEMENT OF DANA BAIOCCO
Ms. Baiocco. Thank you, and good morning, Chairman
Schakowsky, Ranking Member McMorris Rodgers, and members of the
House Subcommittee on Consumer Protection and Commerce.
Thank you for inviting me here today and for providing all
of the Commissioners the opportunity to testify before you
today. This is the first time I have appeared before Congress
and I believe that it is essential and it is a great
responsibility that we discuss the status of the agency and
also I would like to share with you my individual perspectives,
goals, and ideas for making the agency successful.
While I have only been at the agency for about 10 months,
it has been an honor to work with my fellow Commissioners to
facilitate our statutory directives and to also explore ways to
keep the agency current as possible with all of the different
types of products and the ever evolving issues that are
associated with the consumer product safety world.
The enormity of the agency's charge cannot be overstated.
In the title to this hearing, you ask is the Commissioner--is
the Consumer Product Safety Commission fulfilling its mission.
The answer is yes. In fact, during my short tenure, the
agency has taken several safety-related actions including the
vigorous enforcement of the Child Nicotine Poisoning Prevention
Act of 2015.
We have finalized safety rules for high chairs, baby
changing products, booster seats, portable hook-on chairs. We
have voted to ensure that a mandatory standard to address
furniture tipovers is finalized and we have developed and
released a CPSC recall act to better inform consumers about
recalled products.
We have expanded our safety collaboration with retail
outlets, trade organizations, and consumer advocacy groups as
it pertains to toys and the agency's new and progressive social
media campaign is extremely well received.
However, given the great mission before us, I believe that
the agency can and must do more. First, we must enhance the
agency as a whole to better serve consumers.
To do this, the agency must commit to forward-looking
investments that will make the agency more efficient, more
nimble, and more effective.
For example, the agency should invest smartly in three
basic upgrades. Improved equipment is one, additional and
specialized personnel to revamp and oversee the agency's
technology data capabilities and hazard identification systems,
and third, a more robust plan for testing and studying new
trends, products, and impending issues.
Merely redecorating an outdated system does not now and
will not in the future allow the agency to serve the American
public in the manner in which they deserve.
Given the speed with which new products enter the
marketplace every day, the ease with which they get directly
into a consumer's home, and the complexity of the global supply
chain, which includes products that do not comply with our
safety rules and standards, real action must be taken to keep
the agency relevant.
We must end the cyclical exercise of patching an already
obsolete system that becomes more antiquated every day. We must
ensure that a generous portion of the agency's budget, whatever
it may be, is dedicated to transitioning the CPSC into a
forward-looking agency rather than a reactive one.
We must provide our engineers with reliable and sound data
to address and solve product hazards.
Second, the agency must be purposeful in its regulatory
activities. Rulemaking, of course, is a key charge of the
CPSC's mission and there are strict statutory directives that
we must follow.
However, the agency must do a better job with this
authority. For example, when an agency is promulgating a safety
rule, it should do so swiftly and decisively. It must be
legally sound and there must be a scientific reason to do so.
It serves no purpose to force a rule that does not solve
the hazard or that leaves room for legal challenge because the
rule lacks basis in data, science, or proper procedure.
All agency legal actions must be credible, rationally
related to the hazard before it, and consistent with the rule
of law.
Third, the CPSC should be the gold standard in engineering,
testing, and problem solving. We must allow our engineers to be
independent and solution oriented.
Our entire team must be in power to solve product hazards
affirmatively when appropriate rather than be encouraged to
merely opine on a proposed solution offered by interested
stakeholders.
Finally, I think it's imperative that the agency implement
programs to allow it to move ahead of the curve on emerging
trends and impending issues.
To illustrate, the marketplace is currently demanding the
production of more sustainable products, however that word is
defined. To the extent sustainable means recycled reusable
products, the agency must ensure that the market demand does
not indirectly undue safety advancements that the agency has
worked long and hard to accomplish.
The agency should be studying now, not reacting later, to
any of these potential pitfalls.
Since joining the CPSC, I have been working on some
individual initiatives to contribute to the agency's mission.
One of those focuses on counterfeit products that is a deep
pool of noncompliant products.
I am impressed--I am very impressed with the work that the
agency's import surveillance team is doing on this initiative.
They have developed excellent relationships with their custom
and border control colleagues.
Ms. Schakowsky. Commissioner, you are going to have to wrap
it up.
Ms. Baiocco. Oh, I am sorry.
My overarching goal as a Commissioner is to ensure that the
CPSC is employing the best practices in all that we do. I have
requested that the Commission conduct an internal review of the
agency staff directives and procedures to identify and enhance
areas that need improvement.
That review, in my opinion, is critical to the integrity of
the agency. If we have additional questions beyond today, I am
available any time to answer them.
Thank you for the extra time.
[The prepared statement of Ms. Baiocco follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Schakowsky. I thank you.
And Acting Chairwoman Buerkle, it is yours for 5 minutes.
STATEMENT OF ANN MARIE BUERKLE
Ms. Buerkle. Thank you very much.
Good morning, Chairman Schakowsky, Ranking Member McMorris
Rodgers, and distinguished members of this committee.
Thank you for holding today's hearing on the Consumer
Product Safety Commission. I had the honor of serving alongside
the chairwoman and the ranking member and some of the
subcommittee's members during my time in the House of
Representatives and I am so very glad to be back on Capitol
Hill to discuss the very important work of the Consumer Product
Safety Commission.
I also appreciate the productive meetings with the
chairwoman and the ranking member earlier this year. I hope
today's hearing is another step towards a collaborative
relationship with the committee.
I am so pleased to be joined by all of my colleagues today.
We are a different composition of Commissioners since the last
time we sat before this subcommittee. But we have the very same
mission of keeping consumers safe.
Additionally, I want to highlight CPSC's dedicated staff.
CPSC consists of an elite group of professionals who work hard
every day and are committed to keeping consumers safe and it is
humbling to work alongside such devoted and talented people.
Having the opportunity to lead CPSC is the culmination of
many aspects of my life. I joined the Commission in 2013 after
being nominated by then President Barack Obama. I was confirmed
by voice vote by the Senate.
In February of 2017, I assumed the duties of the Acting
Chairwoman. Prior joining the Commission and serving in
Congress, I have spent my career in health care, first as a
registered nurse and later as a New York State assistant
attorney general representing a teaching hospital.
I have spent my life in advocacy and now it is truly an
honor to lead the Consumer Product Safety Commission.
For our agency, 2019 got off to a challenging start with
the Government shutdown. During the shutdown, CPSC operated
with a skeleton crew of accepted employees.
These dedicated individuals reviewed more than 10,000
incident reports analysing information from a variety of
sources including NEISS, our National Electronic Injury
Surveillance System, the CPSC hotline, and SaferProducts.gov.
Operating according to the procedures specified in our
shutdown directives, staff sought to identify any incidents
that rose to the level of imminent hazard threat to human
safety.
Once the Government reopened, all CPSC staff began working
tirelessly to clear the backlog and return to normal
operations. Specifically, they have opened and completed all
investigations into incidents warranting an in-depth
investigation, processed and reanalyzed the over 10,000
incident--other incidents, reviewed and assessed all Section
15(b) reports in our processing potential cases, evaluated all
SaferProducts.gov reports received and published that were
eligible, and announced multiple recalls that occurred during
the shutdown.
Beyond the valiant efforts of what the staff did and coping
with the shutdown, I do want to talk this morning to the
committee about our funding.
Certainty is critical to our agency and knowing that we are
funded through the remainder of fiscal year 2019 is a relief.
However, additional funding in the coming fiscal year is
essential to help us move more efficiently and effectively to
execute our mission.
On March 28th, CPSC submitted its budget request to
Congress at the level of $127 million for fiscal year 2020, a
mark set by OMB and the President.
I am grateful for the level the President funded us, as it
is higher than in years past, but our agency faces challenges
in executing our mandate with such a limited level budget.
This morning, I am imploring each and every member of this
subcommittee to advocate on behalf of the CPSC for a higher
budget. To provide the CPSC more flexibility to accumulate
larger balances needed for major investments, especially in
information technology, I continue to advocate support to move
a part of the CPSC budget to a no-year appropriation that would
be available until expended.
This no-cost would give us the needed flexibility to use
money across fiscal years for larger investments to deal with
unexpected shortfalls and generally to make higher return uses
of year-end balances.
CPSC not only needs to maintain the capabilities it
currently has but, as discussed this morning, also to expand
our effectiveness and our efficiency.
Each year we do not keep pace with inflation, more and more
mission funding is redirected to offset cumulative inflation
costs.
In addition, programmatically we need a more robust budget
to ensure we are fully equipped to deal with the rapidly
changing global marketplace where the types of products and how
consumers buy and interact with those products is constantly
evolving.
All of this requires consistent, adequate, and additional
funding. CPSC's mission is a critical one. As a mother of six
and a grandmother of 18, I know that nothing is more important
than the safety of our children and our families.
The role of the Chairman is a critical one, and I do not
take this responsibility lightly. I am committed to keeping our
positive working relationship with Congress so together we can
work to keep the consumers safe.
Thank you very much, and I look forward to answering your
questions.
[The prepared statement of Ms. Buerkle follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Schakowsky. Thank you. I appreciate your comments.
And now Commissioner Feldman, you are welcome to speak for
5 minutes.
STATEMENT OF PETER A. FELDMAN
Mr. Feldman. Good morning. I want to begin by thanking
Chairwoman Schakowsky, Ranking Member McMorris Rodgers, members
of the Subcommittee on Consumer Protection and Commerce for
providing me this opportunity to appear before you today.
It has been a privilege to serve under the leadership of
Acting Chairman Buerkle as a CPSC Commissioner since my
confirmation last October. I am relatively new to the agency,
and I previously served as senior counsel to Chairman Thune on
the Senate Committee on Commerce, Science, and Transportation.
As a Senate staffer, I worked directly on CPSC oversight
matters and, therefore, I understand the important function
that hearings like this serve.
I also come to the agency with a deep understanding of the
congressional intent behind the statutes governing the agency,
its duties, and its limits under the law.
The title of this hearing asks an important question: is
the Consumer Product Safety Commission fulfilling its mission.
My view is that the Commission is doing many things well,
that there are areas in which we are making progress, and
others in which we could be doing more to protect American
consumers from dangerous products.
As a Commissioner, my priority is to advance the agency's
safety mission through inclusiveness and compromise. In the
short time I have been at the agency I am most proud of the
opportunities that I have had to collaborate with my fellow
Commissioners on bipartisan solutions.
These include bipartisan support to increase agency
transparency in the form of an open meeting to approve the
agency's budget request--the first such meeting in recent
memory and a tradition I hope we will continue.
Along with Commissioner Baiocco, we have advanced the
number of amendments with bipartisan support including efforts
to strengthen the agency's data science expertise, to
prioritize enforcement of the Child Nicotine Poison Prevention
Act, and to accelerate a mandatory standard to protect children
from furniture tipovers.
More work needs to be done but I am encouraged by this
forward progress.
During my confirmation hearing in June of last year, I laid
out a number of priorities I felt would achieve the
Commission's goals of protecting American consumers from
unreasonable risks of danger.
These include modernizing the Commission's data collection
and processing capabilities to identify emerging hazards and to
support its enforcement, standards, and regulatory work.
I testified that the Commission must rethink its market
surveillance capabilities including with respect to e-commerce
and new and emerging distribution models, and as a general
matter, that the CPSC must advance safety through engagement
with safety groups and the regulated community alike.
It must do so with transparency and clarity about its
expectations, and these remain critical priorities necessary to
advance CPSC's mission. Again, our work remains ongoing.
To further the goal of modernizing the Commission, I am
excited that the agency is leading the creation of an
interagency working group along with the Federal Communications
Commission, the Federal Trade Commission, FDA, DOT, and NIST to
tackle issues pertaining to the Internet of Things and
connected devices.
More can be done to close the agency's skills gap with
respect to new and emerging technologies and consumer products,
and you mentioned this in your opening statement.
While I am pleased that the agency voted to accept our
proposal to hire a chief data officer, more work remains to be
done to ensure that this position is funded and implemented
appropriately.
I also believe that the Commission should explore the
creation of a chief technologist to expand staff expertise, as
many of our sister agencies have done.
To further the goal of transparency, I maintain an open
door and encourage all stakeholders the share their concerns
with me. This invitation applies to consumer groups, trade
associations, legislators, companies, individual consumers, and
their families.
I have also worked to stress the importance of the
Commission's independent inspector general and to highlight the
numerous important recommendations that remain outstanding.
I have urged staff and the Commission to work to implement
these recommendations expeditiously and will continue to do so.
In closing, I look forward to continuing our efforts to
keep American consumers safe through a bipartisan,
collaborative, and forward-looking agency.
Thank you, again, Madame Chairwoman, for holding this
important hearing and for your work to protect consumers. I
look forward to this important discussion and to responding to
Members' questions.
Thank you.
[The prepared statement of Mr. Feldman follows:]
[GRAPHIC] [TIFF OMITTED] T9670.019
[GRAPHIC] [TIFF OMITTED] T9670.020
[GRAPHIC] [TIFF OMITTED] T9670.021
[GRAPHIC] [TIFF OMITTED] T9670.022
Ms. Schakowsky. Thank you.
And now I would like to yield 5 minutes to Commissioner
Kaye for his opening statement.
STATEMENT OF ELLIOT F. KAYE
Mr. Kaye. Thank you, Madam Chair.
Good morning, Chairman Schakowsky, Ranking Member McMorris
Rodgers, and the members of the subcommittee. Thank you for
holding this critical oversight hearing. I am pleased to be
here with my friends and colleagues--Acting Chairman Buerkle
and Commissioners Adler, Baiocco, and Feldman.
Today, we are representing the work of approximately 550
dedicated career staff at the Consumer Product Safety
Commission. I am truly honored to work with them and my fellow
Commissioners in furtherance of the CPSC's mission to save
lives and protect the public from unreasonable risks of harm
associated with consumer products.
Every day, our actions affect the lives of all Americans
whether they realize it or not. We take very seriously our
jurisdiction and its accompanying responsibility to keep
consumers safe.
When the CPSC is at our best, we are using our limited
resources and full authorities to make products safer through
strong consumer protection standards.
When the CPSC is at our best we are leading the charge to
end persistent hazards such as furniture tipping over and
killing young children or toddlers strangling on dangerous
window blind cords.
When the CPSC is at our best, we are actively seeking
recalls of dangerous products with comprehensive and consumer-
friendly recalls using our litigation authority when it is
necessary.
We are assessing and pursuing real civil penalties as
appropriate to deter bad actors from selling recalled goods and
failing to report to us as they are required to do so under the
law.
When the CPSC is at our best, we are funding innovative
safety research, writing effective testing protocols, and
driving much safer product designs to market. We are
anticipating safety problems with emerging technological
innovations such as the Internet of Things or electronic
rideshare scooters.
I believe that the CPSC and our outstanding staff can do
many of these things. I have seen them do it. But even at our
best, we still need help from Congress. While this is not an
exhaustive list, we need revisions to our statutes to eliminate
unnecessary hurdles to developing mandatory safety standards.
We need enhanced authorities to get dangerous products
recalled and off the market quickly. We need additional
authorities to assess fines at our ports to discourage repeat
offenders from trying to bring violative and defective products
into our country, and we need the anti-consumer safety and
anti-transparency requirement of Section 6(b) of the Consumer
Product Safety Act to be eliminated so we can provide the
public with vital product safety information in a timely
manner.
People die because of 6(b). It is as simple as that. We
also desperately need more resources. I know this is not an
appropriations hearing but our current budget of $127 million
is just not enough.
It is truly amazing to me how underfunded consumer product
safety is. It is kind of sad, really. It is also totally
unnecessary.
With Congress' support for additional authorities, adequate
funding, and continued robust oversight, we can stay true to
our safety mission.
Thank you again for the invitation to speak with you about
the CPSC and, of course, I look forward to answering all of
your questions.
[The prepared statement of Mr. Kaye follows:]
[GRAPHIC] [TIFF OMITTED] T9670.023
[GRAPHIC] [TIFF OMITTED] T9670.024
[GRAPHIC] [TIFF OMITTED] T9670.025
[GRAPHIC] [TIFF OMITTED] T9670.026
Ms. Schakowsky. Thank you. And now we will begin
questioning from the members of the committee--of the
subcommittee--and I will begin.
So I want to talk a bit about furniture tipovers, and I
hear you talking about a final--about a mandatory standard
being developed. But in the meantime, I think that--I have been
really disappointed in the speed of which we've seen these
dangerous products being taken off the market.
Every 14 days a child dies from a tipover and, Commissioner
Adler and Kaye, at the CPSC March meeting you pushed for a more
streamlined process for getting stronger standards for the
children's furniture but you were outvoted at that--at that
meeting and I wonder if each of you can explain what you were
trying to do and how it would have helped save lives.
Let us start with Commissioner Adler.
Mr. Adler. Thank you very much for that question.
I think when Commissioner Kaye and I proposed our amendment
we understood that it would apply just to children's clothing
storage units but on the philosophy that even if you can't
protect everyone that doesn't mean you shouldn't protect
anyone.
The big advantage of moving under this special streamlined
provision of the Consumer Product Safety Act is speed. We could
have a clothing storage unit rule for children probably within
months whereas I guarantee it is going to take us years under
the more slow and cumbersome procedures in the Consumer Product
Safety Act before we can enact a standard.
And I just want to make one quick point. The standard for
clothing storage units is probably, if we were to do it, word
for word what we would do under these more cumbersome
procedures.
It will just be a little bit broader in scope than doing a
children's clothing storage unit. So I regret that our
colleagues did not agree with us on that point.
Ms. Schakowsky. Commissioner Kaye?
Mr. Kaye. Thank you, Madam Chair.
I think Commissioner Adler certainly summed up all the
important points on why we proposed the amendment. I would also
just add, and this goes to the topic of this hearing--is the
agency doing enough--in my mind, this is one of those issues
where we should be pursuing every authority we have.
Whatever is tools available to us, we should be doing that
with regard to this hazard. And so I think while we both looked
at moving under 104, as Commissioner Adler mentioned, is not
maybe a perfect solution, it certainly is a tool that is
available to us.
It would make a difference in the marketplace. It would
accelerate rule making and would send a signal, which I think
is important. It would send a signal to industry that we are
not leaving any tool unused and that is the larger piece of the
theme that you are looking at and I think is so critical in
your question.
Ms. Schakowsky. Thank you.
Let me--also, one of the problems with voluntary standards
is that they are really hard to enforce, and I hope and expect
that if the CPSC is deferring to a voluntary standard for now
that it is monitoring compliance adherence to that standard.
So Acting Chairman Buerkle, how is the CPSC ensuring that
furniture is meeting the voluntary standard and how soon do you
think that we can have a more robust final mandatory standard
to make sure that these kids are safe?
Ms. Buerkle. Thank you very much, Chairwoman Schakowsky.
And let me just reiterate how significant this issue is and
one of the top priorities of the agency where we have invested
a lot of funding into doing testing to inform the agency.
With regards to the 104 process, the concern was that it
was just addressing too narrow a slice of dressers and just a
small--too small of the number of dressers.
There are millions and millions of dressers out there. This
past February at ICPHSO I addressed to the public that the
agency would begin, and our compliance deputy director sent out
a letter to industry advising them that we will now be
enforcing the voluntary standard and to make sure their
dressers are compliance with the voluntary standard that is
currently in place.
However, I also sent a letter to the ASTM Committee
advising them to go to 60 pounds and to broaden the scope of
dressers to 27 inches and above because that has been a topic,
as you know, as we have discussed, a topic that was--has just
been languishing in the ASTM Committee and, hopefully, that
right now, as we speak, is being balloted.
Ms. Schakowsky. Let me just say that I have a piece of
legislation called the STURDY Act that I hope all of you will
look at. Just like the Consumer Product Safety Improvement Act,
I think that this is an issue that could use some legislation.
I am hoping that the Commission will support it.
I now yield to the ranking member for 5 minutes of
questions.
Mrs. Rodgers. Thank you, Madam Chair.
To Acting Chair Buerkle, I just wanted to give you a chance
here at the beginning of today's hearing if you wanted to
respond to any of the recent attacks that we've seen recently
on your record of public service and especially safety-focused
public service.
Ms. Buerkle. Thank you very much.
As I mentioned in my opening statement, there is nothing
more important to me than safety and I have said from the
outset safety is not political nor should it be political in
how we keep consumers safe and we enforce our statute.
The recent story, and I will speak to that and take the
opportunity and then I want to very quickly segue into the good
things the agency has done, but it is important to understand
one of the narratives was that I don't--I am not in favor of
recalls.
But I think it's also import to note that we already had a
recall with Britax in 2017 just after I became the Acting
Chairman. There was also an allegation that I kept my fellow
Commissioners in the dark.
I think it is really important to understand that the
Commissioners, all of us, were informed about this very issue
in June of 2016, before I ever became Chairman, in September of
2016 before I ever became Chairman, and then subsequently in
April of 2017.
So there was never any attempt to keep my colleagues in the
dark. Two of those reports I wasn't even in the Chairman's
office. And, additionally, Commissioners have the opportunity
to meet with senior staff on a regular basis and are informed
about what's going on at the Commission.
And then I think, most importantly, the issue of the why
settle--why should we settle with Britax instead of allowing
that to go the course throughout litigation--and I think it's
very important when we make decisions as an agency and as
Commissioners, which we are the decision-making body, we take
all of these factors into account.
And when I thought about the Britax and the opportunity to
settle that issue rather than prolonged litigation, I compared
it to a recent situation that we had at the CPSC where, again,
a firm did not want to do a recall.
So we sued them to do the recall, which is precisely what
happened in the Britax matter. That complaint was filed in the
former case in 2012.
In 2019, 7 years later, the district court opinion on
reconsideration held that requirement and that trying to force
the recall as unlawful and they vacated it.
So in a 7-year period, we used valuable resources of the
agency, and the consumer never got the safety information,
never had a remedy for the recall.
And so in the case of Britax, it seemed to me, let us get
that information to the consumer. Let us make sure that
consumer understands how to get that stroller to work
correctly. Let us settle this. It is what our staff advised us
to do, and that is what happened.
And so in the case of Britax the complaint was filed in
2018 and in November of 2018 there was a settlement agreement,
and now we will monitor that plan very closely and we will also
make sure they issue--they will send us reports about the
recall and we will monitor those very closely that they have
complied with the settlement agreement.
I just--if I could take a minute, I think it is really
important to talk about the good work of the agency. We heard
it from my colleague, Commissioner Baiocco.
But we--in the last 2 years since I have been Chairman, we
have passed six mandatory standards. We revised eight mandatory
standards. We have NPRs out for two durable nursery products.
We have an ANPR for a clothing storage unit tipover, three
critically voluntary standards--three critically important
voluntary standards have been enacted and are in effect.
One is window coverings that went into effect 2018--
critically important; second is, I mentioned, with the
tipovers--they are balloting those to 60 pounds and under 27
inches--27 inches and above--as we speak today; and portable
generators.
Two voluntary standards are in place that will keep the
consumers safe now. They are in the market. Those are three
critically important voluntary standards of the agency through
the hard work of our staff has accomplished.
Furniture tipovers we've talked about. I think one of the
important issues to this committee is SaferProducts.gov. It is
a way for the consumer to access information and we are in the
process of--we had a public hearing on it.
We did an RFI. The staff will collect all of that
information, come back to the Commission, and help us to
understand what can we accomplish quickly, what will take more
funding and, again, that is one of the projects that I would
really appreciate additional funding for to make
SaferProducts.gov more robust.
We have continued coordination with other Government
agencies, making sure that we are--there are no gaps between
our safety work. Recall effective--this has become a priority
of the agency.
We had a workshop, an RFI follow-up, and as Commissioner
Baiocco pointed out, safer products--excuse me, the new Recall
App has been launched, thanks in part to her hard work on that
issue.
And, most importantly, we have stopped millions of unsafe
products at the ports and that is something I would like to
talk about when we get to recall effectiveness.
So thank you.
Mrs. Rodgers. OK. Thank you. My time has expired. I do have
further questions. I will submit them to the record.
Ms. Schakowsky. And now let me yield to the chairman of the
full committee, Mr. Pallone, for 5 minutes.
Mr. Pallone. Thank you, Madam Chair.
I mentioned in my opening that Congress passed the Child
Nicotine Poisoning Prevention Act in 2016 that requires liquid
nicotine containers to meet special packaging requirements of
the Poison Prevention Packaging Act, including child proofing
and flow restrictions.
The letters CPSC issued on implementation and enforcement
requirements have been confusing, in my opinion. One letter
failed to advise companies of the flow restrict or
requirements.
Another mentioned them but indicated that CPSC would be
issuing future guidance, raising questions of whether companies
must comply with the flow restriction requirements in the
meantime.
And I think that flow restriction is a serious concern and
was included in the law for a reason. Now, I have here a
product called the Milkman, which was purchased online, and
this is with vaping, right.
It's a bottle of liquid nicotine that has no flow
restrictor at all and if you open it up--if you want to, you
can, but at your own risk--if you open it you can see that it
could be simply dumped out in an amount that could easily kill
a child and these kinds of containers are still readily
available in stores and online. This one was purchased online.
So when I asked you, Chairwoman Buerkle, what is CPSC doing
to ensure that it enforces the law--because this is illegal--
and including, you know, surveillance of stores, websites, you
know, that makes its expectations clear to companies so they
don't--I mean, they are not allowed to sell this.
Ms. Buerkle. Thank you very much, Chairman Pallone. Thank
you for the question.
I would reiterate your concern with regards to liquid
nicotine. In 2016 when the statute was passed and my colleague,
Mr. Feldman, at the time was in the Senate and was very active
in his work on that issue--in 2016 the agency immediately
issued letters, putting companies on notice, putting firms on
notice that we would now begin enforcing the Child Nicotine
Poison Prevention----
Mr. Pallone. Are they still for sale?
Ms. Buerkle. Subsequent to that, we have sent out
additional letters on the exact issue you speak of--the flow
restrictors.
Mr. Pallone. Are those the ones that came from
Commissioners Feldman and Baiocco? I have--I said after the--
after the letters I mentioned they sent out letters, I guess in
February, that indicated CPSC would be issuing guidance and you
issued a joint statement expressing concern about the confusion
it may cause and reiterating CPSC's duty to immediately enforce
the law.
Is that subsequent? Is that what you're talking about now?
Ms. Buerkle. Yes. Subsequent to the letters that were sent
out advising of the Child Nicotine Poison Prevention Act--
subsequent to that, the agency developed a testing methodology
in addition to what was already in the statute and they are now
enforcing that. And again, that gets back to the limitations we
have in terms of funding.
This e-commerce situation that you are calling to our
attention is critical and additional funding for just e-
commerce----
Mr. Pallone. All right. Well, I appreciate that. But you
say that they're enforcing it now. But how? What are they doing
to enforce it?
Ms. Buerkle. They have put together a plan. They will go--
they'll physically go into a brick and mortar store where there
are these products--where these products are sold. But in
addition to, as with other issues, we also do online
surveillance to see whether or not these products are safe, are
available, and if they are available then they will go----
Mr. Pallone. All right. Well, take a look at this one,
because this one is still for sale, all right? I appreciate it.
And I will give you--our staff will get back to you.
But, I mean, I just hope that we are going to see more
enforcement action because, clearly, it is not enough at this
point.
Now, I just wanted to mention one thing about--yes, I don't
suggest everyone take a--let's put it away for now.
So let's talk about counterfeit products for a minute. Last
year, I sent letters to five major e-commerce retailers asking
what they're doing to stop dangerous counterfeit products from
being sold on their platforms and these fake products may be
made from shoddy materials or little or no quality control.
I am still concerned that sites like Amazon are not doing
enough to police the sellers. Can I just ask either--well,
Commissioner Feldman, you have previously spoken of the need
for CPSC to be more engaged in this area. Can you tell me what
CPSC is doing to protect consumers from these counterfeit
products and what more should be done?
I know we are running out of time, but if you would try to
answer it for me I would appreciate it.
Mr. Feldman. The issue of counterfeit products runs much
broader than our jurisdiction has to do specifically with
safety. But where you have a counterfeit product, where IP
considerations are being ignored, there is a high degree of
correlation that in fact the necessary safety and certification
testing that goes along with that is also being ignored.
I see that this light is blinking red. But I do think that
we have a lot more that we can be doing to engage online
platforms and to expand our market monitoring capabilities to
take a look at direct-to-consumer shipments.
In many ways, the counterfeit issue is not exclusively but
it is predominantly an e-commerce issue and I agree that some
additional resources and efficiencies with respect to our
existing resources can be better leveraged to make progress in
this area. But I thank you for raising the question. Thank you.
Mr. Pallone. Thank you.
Thank you, Madame Chair.
Ms. Schakowsky. And now I recognize Mr. Latta for 5
minutes.
Mr. Latta. Thank you, Madame Chair, and to our
Commissioners, thanks very much for being with us today. I
really appreciate it.
And the Internet of Things is an issue I've been focused on
in my time in Congress and especially in the last Congress I
introduced the Smart IoT Act, which directed the Department of
Commerce to create a compendium of essentially who is doing
what at both the Federal level and at industry.
And I also formed the Internet of Things Working Group with
my friend, Representative Welch from Vermont, and we should
focus on minimizing agency overlap and duplicative burdens that
hamper innovation.
If I could start, Chairman, with you, if I may. What
interagency efforts have you been able to undertake at the CPSC
on the issue of the Internet of Things?
Ms. Buerkle. Thank you very much for the question,
Congressman Latta.
We, first of all, have taken this issue very seriously and
understand the implications it can have for safe products. We
had a public hearing on IoT and had many stakeholders come in
and testify as to what they saw our role as the agency and
very--it was a very robust discussion.
Subsequent to that, as my colleague, Commissioner Feldman
alluded to, we have and we are taking the lead. As a small
agency, we are taking the lead in the Internet of Things.
We have a person who is detailed to my office who is
running the IoT initiatives and, again, what Commissioner
Feldman said that we will be having, in April, a
intergovernmental discussion and meeting just to discuss the
very issues that you have raised--who is doing what, what do we
consider our jurisdiction to be, and how will we address making
sure these products are safe.
And that as was, again, Commissioner Feldman mentioned, our
jurisdiction isn't the privacy but when that hack or that
breach or that malfunction of the software occurs, how it
affects the safety of the product--that is our concern.
And so we all need to be talking to each other as
Government agencies, making sure that we have all of the bases
covered, making sure we are not crossing over and getting in
each other's way but also having a mechanism to discuss this
once a hazard is identified.
Mr. Latta. Well, thank you. And if I could maybe continue
on.
Commissioner Feldman, because, again, in your testimony you
talk about the working group that you put together with the
FCC, FTC, FDA, DOT and NIST, and I am interested because,
again, we want to make sure that, you know, we are protecting
the consumer out there, especially when you see what's
happening in hacking and all, especially when you see with the
working group you're putting together.
What do you envision that you will be doing with the--with
the Commission with the other agencies and departments?
Mr. Feldman. Yes, sir, and thank you again for you work on
the Smart IoT Act. That's a piece of legislation that I think
advances goals similar to what is currently underway at CPSC.
The purpose of the working group is interagency
coordination, not regulation. I think it's important at this
stage in the game with the nascent technology that agencies are
aware of the respective efforts on connected devices across the
Federal Government.
CPSC is a safety regulator. We are not a security
regulator. I see--or a privacy regulator, as the Acting
Chairman mentioned. That's a set of responsibilities that falls
to agencies like the Federal Trade Commission and the Secret
Service.
But that said, there are situations that are likely to
arise where a security vulnerability and a safety risk share a
common nexus. When those situations arise where there is a
problem that is a crisis that emerges that implicates a number
of agencies' jurisdictions, at this stage I think having agency
staff speaking to one another so that in those critical 24
hours of a crisis CPSC staff isn't calling somebody at NIST or
FTC or Secret Service to introduce themselves and have a
question about jurisdiction when those critical minutes are
ticking away.
So in that respect, I think taking these steps at this
stage is a worthwhile effort.
Mr. Latta. Thank you.
Chairman Buerkle, in the CPSC 2020 budget request, you
state that the CPSC will prioritize its resources on the
products with the highest consumer product safety risk.
Can you elaborate on how you accomplish this and will your
decision about also be guided by scientific, solid, and
reliable data?
Ms. Buerkle. Thank you. Yes. Thank you for that question.
CPSC is a data-driven agency and it is critical to us that
we have access to robust data. It is also critical that we have
the ability to analyse that date to make sure we have a good
understanding of the issues and the incidents that are out
there.
It has only been compounded now with e-commerce and some
developments, and so in our budget those initiatives which
don't deal with our day-to-day initiatives and efforts or more
traditional models will go by the wayside because we don't have
the capabilities because of the lack of funding, because of our
budget essentially hasn't kept current with inflation. Our
contracts go up, wages go up, and then that takes away from our
critical mission budget.
So it's important and why we all--I think all of us would
agree the agency needs additional funding.
Mr. Latta. Well, thank you very much. My time has expired.
Ms. Buerkle. Thank you very much.
Ms. Schakowsky. And now I yield to Congresswoman Castor for
5 minutes.
Ms. Castor. Well, thank you, Chairwoman Schakowsky, for
holding this important hearing. It has been too long since this
committee held a proper oversight hearing.
For example, our colleagues on the other side of the aisle
have not had the Consumer Product Safety Commission here since
May of 2015. So I am pleased that you and Democratic majority
are reclaiming our vital oversight duties.
Over the past 2 years, a number of major hurricanes made
landfall in the United States--Harvey, Maria, Irma, Michael.
Devastated communities across the country and coming from
Florida I am particularly sensitive to this.
After hurricanes sweep through, many Americans are left
without power for days or weeks and, in some cases months.
After Hurricane Maria, Puerto Rico was without power for 11
months.
In the aftermath, portable generators can supply emergency
power to those in desperate need. However, portable generators
can be deadly. They emit 450 times the amount of carbon
monoxide as an idling car.
On average, 73 people die each year from carbon monoxide
exposure from generator exhaust. After Hurricane Irma, at least
12 Floridians lost their lives because of portable generators
and according to the CPSC's own data, generators killed 849
people or caused brain damage or sickness in many more from
2005 to 2016.
In 2016, the Commission recognized that something needed to
be done and the Commissioners voted 4-1 to go forward with a
notice of proposed rulemaking for a mandatory portable
generator safety rule. That rule, which could prevent numerous
deaths, has still not gone into effect.
Acting Chair Buerkle, in 2016 you were the lone
Commissioner who opposed moving forward with a mandatory
portable generator safety rule. That means out of the five
Commissioners, you were the only one to oppose such rule, and
you stated that you favored a voluntary standard over a
mandatory standard.
How many preventable deaths need to occur before the
Commission under your leadership issues a mandatory safety
standard?
In other words, do you foresee any circumstance where you
would support a mandatory rule?
Ms. Buerkle. Thank you very much, Congresswoman Castor, for
that question.
First, let me just tell you how important and seriously the
CPSC takes the issue of carbon monoxide poisoning. It is one
that we have spent a tremendous amount of resources on in
trying to address the hazard.
I would tell you that the ANPR for the mandatory standard
began in 2006. The NPR was published in 2016. So 10 years
elapsed before we ever did anything to get an NPR.
Apparently, there was difficulties in developing the
technology. We waited for a study to come from the University
of Alabama, which was a low-emission technology.
In the meantime, industry--and there are actually, at the
end of the day, two voluntary standards with shut-off
technology that really make the consumers safe and they have
addressed the hazard, so we hope.
Ms. Castor. A lot of manufacturers even didn't want to
adopt longer cords. I mean, that's not something that takes a
lot of research and time. But they wouldn't go along with that.
And why wouldn't you sign a letter to retailers that was
circulated by the other Commissioners urging retailers to stop
generators with new safety features?
Ms. Buerkle. I think, first and foremost, because the
generators weren't available and the letter was going to cause
confusion. The letter--the generators that had the new
technology that was compliant with the voluntary standards was
not available until approximately a year and a half later.
And so sending out a letter----
Ms. Castor. You were in the minority on that, though. Why
did you provide that draft letter to industry representatives
and note that you intended to discourage the other Consumer
Product Safety Commissioners from sending that letter?
Ms. Buerkle. I disagree on the first premise--that I
provided the letter--because no letter was ever provided to
PGMA, and that's very important, and I never would have
provided it until----
Ms. Castor. Commissioner Kaye, you thought that it was
important for the Commission to adopt a mandatory portable
generator safety rule. Is that right? Could you tell us why?
Mr. Kaye. That is correct, and if the chairman would
indulge me for a moment on the answer. This goes back to what I
said in my opening when the----
Ms. Schakowsky. Quickly, because she's out of time. Go
ahead.
Mr. Kaye. When the CPSC is at its best, it's driving
research and the staff led to the breakthrough that caused us
to move forward with that mandatory standard, and even if the
voluntary standard is perfect there is a good part of the
market that would never comply with the standard, and so we
need a mandatory standard to enforce it anyway.
Ms. Castor. Thank you.
Ms. Schakowsky. Thank you. The gentlewoman yields back and
now let me recognize Mr. Bucshon for 5 minutes.
Mr. Bucshon. Thank you, Madam Chairwoman, and Chair
Buerkle, good to see you. You were elected with me in 2010 and
part of the doctors--the nurse caucus. So it's good to see you.
I want to ask you, there's been some conversation this
morning about additional funding for the agency. In the
previous budget increases the agency spent a significant amount
of money on a new logo, for example.
So my guess--that spurs a question. How would you approach
the calls for additional funding for the agency in an
environment of limited resources?
And I guess I am asking what are the critical funding
priorities that would be addressed with everyone's request for
more funding which, by the way, I am not against, based on what
you have said.
Ms. Buerkle. Thank you very much for the question.
Because since I have been at the agency and I find myself
in a peculiar position as a conservative in the House of
Representatives, always talking about spending, once I got to
the agency and realized what the agency needed to function
properly and to function well, I began to ask for increased
funding since I've been at the agency.
We need--the agency is a data-driven agency. We need to
improve our sources of data and we need to improve our
capability of looking at data and analyzing that data.
And so those kinds of system improvements require
substantial amount of money. In addition, we heard from my
colleague, Commissioner Baiocco, about in terms of the system
itself.
We have heard from the agency from our IT person our system
is old. It's got some issues with it, and rather than just
cobbling together and making it worse, we need to really look
at our systems to make sure across sectors of the agency.
Various areas can communicate.
There's a lot of modernization that needs to occur at the
agency in addition to just improving our ability to collect
data and then analyze that data.
Mr. Bucshon. So I am assuming--I haven't read your budget
request but I am assuming that is outlined--that type of
information is outlined to Congress?
Ms. Buerkle. It is. It is in an appendix.
Mr. Bucshon. Because I have always found it helpful, you
know, when agencies come and request more money that it's
helpful to Congress to outline specific priorities because as I
kind of half jokingly said the new logo thing, you know, I have
found, since my time in Congress and I am in my fifth term,
that although I don't necessarily agree with Congress line by
line telling you how to spend you money, it is helpful when we
are making decisions on increasing funding to have those
priorities in front of us. So I would encourage that.
Ms. Buerkle. And if I could just add one more thing and
that is what we are dealing with at the agency is that the
traditional brick and mortar scenario that we are all used to
that so much of our work is geared towards, now we shift with
e-commerce, IoT. We've talked about these issues this morning.
Mr. Bucshon. Yes.
Ms. Buerkle. And to be able to look at the modernization,
to look at the way consumers are accessing and buying goods is
critically important as well.
Mr. Bucshon. OK.
Commissioner Feldman, I understand that some recall
completion rates are very low while others are 100 percent. Can
you explain why relying solely on the recall completion rate of
products could be misleading?
Mr. Feldman. Thank you for the question.
I previously served on the Senate Commerce Committee where
that particular subcommittee had jurisdiction not only over
CPSC that deals with consumer products but also over the
National Highway Transportation Safety Administration that
deals with automotive recalls.
In the automotive recall scenario, you are talking about in
most households the largest family asset short of real
property, and even in that context where automotive safety
defects are extremely likely to result in death and injury,
those recall completion rates are low.
In the consumer product context, you're dealing with
consumer products that are at a lower price point that tend to
be disposable, and there are issues that we find in terms of
getting the recall numbers to a level that are acceptable in
terms of the agency's ability to affect direct notice. I think
that that's a perennial challenge that we are facing. But I
think you're asking the right questions.
Mr. Bucshon. OK. Thank you. I yield back.
Ms. Castor [presiding]. The gentleman from Texas, Mr.
Veasey, is recognized for 5 minutes.
Mr. Veasey. Thank you, Madam Chair. I wanted to ask Ms.
Buerkle a question, and I know that because of your work there
that you understand how important this Commission is,
particularly for consumers that have confidence in the products
that they use on a daily basis.
You know, there is a recall now out on a child's seat
because of some turnovers and some deaths that have occurred
with this particular child seat. Even toasters--like everyday
appliances like toasters that we use sometimes can occur and
deaths.
Sometimes it doesn't have anything to do with the product
itself but just the consumer use. But sometimes it can be
because of a faulty product and we've seen recalls in those.
And I think that Representative Castor, talking about the
generators and some of the concern with carbon monoxide
poisoning and deaths is something that is really real and I
think that you would agree that those are real consumer safety
issues, correct?
Ms. Buerkle. I would certainly agree with that.
Mr. Veasey. So could you clarify what you meant earlier?
Because I didn't--I wanted to give you a chance when you said
that you didn't believe in recalls.
Because, obviously, and with--if there are faulty
generators or toasters or child seats, you would--if those
products were faulty I am assuming you would want them
recalled. So what did you mean earlier when you said you didn't
believe in recalls?
Ms. Buerkle. What I was explaining to the Ranking Member
McMorris Rodgers, there was a narrative out there that I am not
in favor of recalls and in fact that is not true and that was
my opportunity to explain of course I am in favor of recalls.
If there is--and 99.9 percent of our recalls are voluntary.
Firms come to us, they report, and they work closely with our
staff to not only make sure that the recall is effective and it
is done properly but to share in the message and the media--
accessing the media.
And then beyond that, our staff works very closely with the
firm to make sure they are doing what they said they would do
in terms of the recall.
So yes, recalls are very important to me. It's a critical
part of our mission.
Mr. Veasey. Thank you very much. I appreciate that.
I wanted to ask also a question to Mr. Adler, particularly
as it relates to consumers over the age of 65.
As you know, we have about 10,000 Baby Boomers a day
turning 65 years old and I am really concerned specifically
about product safety as it relates to, you know, older
Americans, Baby Boomers that are aging very rapidly,
particularly the Baby Boom generation, because their intent is
to be more active than the generation before them as it relates
to living independently, being able to go and continue to
travel and do all sorts of things and we, obviously, want to
keep them safe.
And I was just wanting to know if you could talk about some
of the work that the Commission is doing to address some of the
issues regarding senior citizens because this, I think, is
going to continue to be a big issue as this large group of our
population grows.
Mr. Adler. Thank you so much, and as I said, I am a proud
member of the senior citizen population. So it is an issue of
great concern to me.
And I didn't make one point that I really did want to
stress here. Right now, seniors constitute about 13 percent of
the population. We constitute 65 percent of consumer product-
related deaths.
The majority of those are from falls on things like stairs
and flooring, which can be improved. There are a substantial
number that occur with respect to fires.
Seniors die at a much higher rate when it comes to fire
hazards. Just think of somebody walking around in robe and
pajamas and getting their arms too near to an open flame, or
sometimes leaving an open flame on when they go to sleep.
So in addition to being a healthier group we need to be a
safer group, and things that I think the Commission can do--and
I put these into three categories.
The first is sometimes there are products that are just
exclusively for seniors. Those are products like adult bed
rails and products like emergency medical alerts, and those are
things that we can focus on the same way we focus on products
especially made for children.
In addition, there are a lot of products that harm all
consumers but they disproportionately affect seniors. My own
view is that where we find something that is truly
disproportionately harming and killing seniors we ought to have
a streamlined procedure for writing safety standards that
address senior hazards in the same way we have specific 104
procedures for addressing risks that apply to children.
In addition, even if we are not going to regulate a product
I do think we need to encourage manufacturers to note that
their products are harming seniors in disproportionate ways and
at least to encourage them to take safety steps and I will give
you one quick example.
Climbing a ladder--I don't think anybody over the age of 75
should climb ladders higher than their waist. But if they are
going to do that, I would hope manufacturers would put railings
on the ladders so they would be safer.
So there are many things that I think the Commission ought
to be doing.
Mr. Veasey. Thank you.
Ms. Schakowsky [presiding]. I thank the gentleman for his
question because I was going to ask for extra time to let you
finish your thought that you had started in your opening
statement.
And now I yield to Mr. Griffin----
[Side comments.]
Ms. Schakowsky. OK. So now I yield to Ms. Matsui for 5
minutes.
Ms. Matsui. Thank you, Madam Chair.
In 2013, California amended TB 117, the State's technical
bulletin on fire safety standards for furniture flammability to
significantly reduce the presence of potentially dangerous
flame retardant chemicals in furniture.
As you are aware, commonly used flame retardants in
furniture have been found to be associated with adverse health
effects including fertility complications, certain types of
cancer, heart defects, and hormone disruption.
Commissioner Adler, is CPSC currently examining a national
flammability standard that would reduce the need for
potentially hazardous flame retardants?
Mr. Adler. Thank you for that question, and I would like to
answer it in two ways. First of all, the Commission has
directly addressed the issue of chemical hazards because one of
the things that we are investigating is the possibility of
addressing organohalogens, which are the flame retardants that
are found in many, many children's products, and that is
something that we are working vigorously on in particular to
address them as a class of hazard, not one by one.
Ms. Matsui. Right.
Mr. Adler. With respect to the California standard, which
is TB 117, this is a fascinating exercise to me because the
Chairman supports adoption of TB 117. The industry supports it.
A lot of public health groups do.
But there is one group that doesn't, and that is CPSC
staff, and they have raised a number of very, very strong
technical objections to the adoption of TB 117.
But I would like to go back to a point that I had raised
earlier. We can't just adopt a California safety standard as--
in a very simple process the way we can use under our 104
rulemaking. We would have to go through these elaborate
procedures that are very cumbersome in order to adopt something
like TB 117.
So I know the Commission is working--the Commission staff
are working----
Ms. Matsui. Well, I do hope that we do proceed as quickly
as possible on this.
Mr. Adler. And I am sure that----
Ms. Matsui. I know there might be some disputes. But let us
try to move forward with this.
I think this is such an important issue. I really do. I
mean, this has been out there for quite a while and we really
need to deal with this.
We should study this further and adopt uniform standards
that will reduce the need for dangerous chemicals and
furniture, and it's time we acted upon this.
In 2015--this is another issue--the Office of Management
and Budget issued a memoranda requiring all publicly accessible
Federal websites to provide service only through an HTTPS
connection by the end of 2016.
HTTPS protocol ensures that a consumer's connection is
encrypted from the devices all the way to the Federal
Government's systems. Regular http connections sent in plain
text can be intercepted and exploited by anybody or anything
between a user and the website including someone using public
wifi.
The website created by the Federal Government to monitor
HTTPS deployment stated that 78 percent of Federal Government
domains are compliant with CPSC at 88 percent.
Ms. Buerkle or entire panel, are you aware of this work, if
any what needs to be--remains to be done?
Ms. Buerkle. Thank you for your question, Congresswoman.
I would appreciate the opportunity to get back to you and
get the current status of the agency and then we will report
back to you as to what is happening and where we are with
compliance.
Ms. Matsui. OK. I am anxious to receive that.
The Internet of Things has the potential to transform the
services around us. For instance, connected devices can
remotely monitor a diabetic's glucose levels or a patient in
the ICU's vital signs, which in turn can help provide data to
better treat patients and address issues potentially before
they become symptomatic.
And many consumers already have connected devices to their
homes and on the go when tracking personal fitness information
to intelligence speakers and connected transportation services.
But I am concerned if we do not do more we risk becoming
overly reliant on technologies developed by foreign actors or
standards that provide an unfair advantage to technologies
developed in foreign markets.
That is why I am working on legislation to ensure we
support a multi stakeholder approach to this issue that
promotes U.S. leadership on this process.
The entire panel--as CPSC continues to grabble with IoT
devices, do you see over reliance on foreign technologies as a
potential issue facing consumer product safety?
Mr. Feldman. I will answer that.
Yes, I think you are raising a valid concern. You mentioned
that you're working to develop legislation in this area. I
would want to commend your leadership in that respect and
welcome an opportunity to review a draft of your legislation if
and when that's available.
I think IoT makes all sorts of connectivity possible and
there have been some exciting developments in this area, as you
cited in your question.
CPSC has a role to play with respect to connected devices
that present an unreasonable risk of injury to consumers. I am
aware that CPSC is--that our staff is in communication with
standard-setting organizations like Underwriters Laboratory and
other to develop our own standards with respect to connectivity
and safety of IoT devices. I am eager to watch how this
standards activity progresses. I see my time has expired.
Ms. Matsui. Yes, it has, and thank you. My time has expired
too. I yield back.
Ms. Schakowsky. Next, I yield to Mr. McNerney for 5 minutes
of questions.
Mr. McNerney. I thank the chairwoman, and I thank the
Commission for your testimony. I was here for it.
So, Chairwoman Buerkle, I am the cochair of the
congressional Artificial Intelligence Caucus. One of the things
I am trying to understand is how Federal agencies are using
artificial intelligence to improve their operations and how
they can serve the American public.
Do you have any examples of how the Commission is using AI
today?
Ms. Buerkle. Thank you for your question, and let me begin
by saying mostly what initiatives are happening now are machine
learning and training machines to--the technology to recognize
incidents and recognize patterns of hazards and incidents.
We do not use any AI currently. But, again, that would be
something that if Congress increased our appropriations that
would be something that would give us the flexibility to look
at AI and make sure we understand, first of all, to increase
the amount of data coming to the agency and then, most
importantly, to have the capability to analyse it.
Mr. McNerney. That is kind of a recurring theme, that you
need more resources.
Ms. Buerkle. Indeed.
Mr. McNerney. Is the agency considering how it might use
artificial intelligence in the future?
Ms. Buerkle. Yes, we are, and I welcome any of my
colleagues to comment on that. But we certainly are looking at
ways to make our jobs easier and help us to identify the issues
that are before us.
Ms. Baiocco. One of the ways that I believe that that would
help the agency immensely is in hazard identification prior to
the injury or hazard occurring.
If you just watch on a Sunday afternoon on NFL, there are
opportunities and you see them, say--the announcers put up the
AI and say, there is a 50 chance of this happening or a 60
chance of this linebacker taking the ball this way.
We should be doing that with the same type of technology,
the same type of software, to identify what hazards are coming
down the pike and what the percentage of it is. I think that's
the first place we would start.
Mr. McNerney. Any other Commissioners?
Mr. Feldman. And to that end, I thought it was a good idea,
and I mentioned this in my opening statement, that the
Commission explore the hiring or identification of a chief
technologist at the agency.
I know that the Federal Trade Commission, the Department of
Transportation, FCC, our sister agencies, have all done this
with good results.
Having somebody on staff to expand our technological
expertise and identify how exactly the agency can leverage
technologies like AI to help better identify emerging hazards,
et cetera, would be useful.
I was disappointed that our amendment to include that in
this year's budget request was ultimately not accepted. But I
think there are opportunities and I would love to continue a
dialogue with you to explore how we may make that come to a
head.
Mr. McNerney. Very good.
Yes, there is a significant difference between the
administration's budget request and what actually got
appropriated.
Commissioner Kaye, you have previously spoken about the
need for civil penalties to deter bad conduct. Would you
elaborate on that?
Mr. Kaye. Yes. Obviously, Congressman, it is one of the
important tools that Congress gave the agency to try to deter
companies from not engaging in certain misconduct.
And so during the time that I was Chair I recognized that
the agency was not pursuing civil penalties consistent with the
direction that Congress had given in the Consumer Product
Safety Improvement Act, which called for higher civil penalties
when warranted.
We were basically taking the same fact patterns and
applying the same pre-CPSIA levels to our evaluation. So my
direction to staff was to heed the word of Congress and to
vastly increase as required what we were seeking.
And thanks to the leadership of our then general counsel
and her staff, we were very successful in doing that.
Mr. McNerney. So do you have any data?
Mr. Kaye. We do have data and I am sure the agency can
provide it and the numbers and the cases that were pursued and
what those penalties look like.
Mr. McNerney. OK. I have about a 3-minute question, so I am
going to just yield back at this point.
Ms. Schakowsky. Mr. Guthrie, you're recognized for 5
minutes.
Mr. Guthrie. Thank you, Madam Chair. I appreciate that very
much and, sorry, there was another hearing going on so I've
been back and forth. So I didn't get quite the full discussion,
but I was going to ask a question of Chair Buerkle and it kind
of relates, I think, to what was going on. I didn't get the
whole context of that.
But it's civil penalties. I know during your time on the
Commission you voted against civil penalties and you have also
overseen the largest civil penalty ever imposed by the
Commission. So could you just explain your philosophy in
respect to civil penalties and when imposing--when you voted
against them and why you were there when the largest one was
moved forward? Just give your philosophy on civil penalties.
Ms. Buerkle. Thank you. My problem, and one of the reasons
I don't always vote for a civil penalty is process wise I
find--and if I could just opine 1 minute on the fact that when
you are in the Chairman's office versus when you are a
Commissioner in the minority I think you have a little more
leeway.
But once you are in the leadership role you have a
different role to play that is to keep the agency running, to
send a message to those who may not reported timely or to deter
others from doing likewise.
So to your point, we did enact the largest civil penalties.
But my concern is we are transparent and that the factors that
we use in order to reach the amount of a civil penalty are
consistent and transparent and that, to me, is the most
important thing about civil penalties.
How did we get to that number? Sometimes I will disagree
with my colleagues on the amount of the civil penalty. I will
say that we also, not only for failure to report timely, but we
also will enact a civil penalty for sale of recalled goods,
which we have also done.
Mr. Guthrie. OK. Thanks. And I know I had a manufacturer of
table saws and--well, was in my district. After redistricting
they moved forward, and I know you issued a statement on April
27, 2017, of the publication for proposed standard for table
saws and you found the proposal deficient you said in two
counts.
And the big concern of the manufacturing, I mean, wasn't
the safety of the table at all--matter of fact, quite the
opposite--was a mandated technology they felt that was patented
and they felt like it was going to be a mandated monopoly in
that technology.
That was their concern with that. Could you just talk
about--I know you found that proposal to be deficient--and talk
about that?
Ms. Buerkle. Thank you. Yes. That is my concern as well.
There is no question about making table saws safer and that
certainly is--that would be a goal of the Commission for sure
and the agency.
But right now, I have concerns about whether or not any
rule that we would promulgate would create a monopoly for one
person and I don't think that's the role of government.
I will say, though, that the agency has been aggressive. We
did a 2016 study but, more importantly, a 2017 study to try to
link the injuries to the type of saw so we can be more informed
in our decision making.
The staff is preparing a package--a briefing package to all
the Commissioners to let us know what was--what they discovered
in not only the surveys but then the survey went out for
comment. That comment period is closed and that will all be
coming to the Commission to understand the status right now of
table saws.
Mr. Guthrie. All right.
Commissioner Feldman, I saw you shaking your head. So if
you want to add into----
Mr. Feldman. With respect to table saws, I agree with the
competition issues that were raised. I think I addressed the
question from a more basic level.
There have been some updates to the existing standard--
voluntary standard with respect to new guards and safety add-
ons. That sort of--under the statute dictates our posture with
respect to how, if at all, we are able to proceed with the
mandatory standard.
I am not--I want to be careful in what I say because I
would like an opportunity to confer with agency staff about the
effectiveness of the existing standard and whether it
adequately eliminates or reduces the risk and now that that
standard has been out there for some time whether or not there
is substantial compliance from industry.
Those are the two factors that we need to get to in order
to move to a mandatory standard but----
Mr. Guthrie. OK. Thanks.
Mr. Feldman. Thank you.
Mr. Guthrie. And I am getting short on time for my next
question. So welcome back to Capitol Hill. It is always great
to see you.
Ms. Buerkle. Thank you very much.
Mr. Guthrie. I enjoyed serving with you. So thank you very
much, and I yield back.
Ms. Schakowsky. The gentleman yields back and now I call on
Mr. Rush for 5 minutes to ask your questions.
Mr. Rush. I want to thank you, Madam Chairlady, and I
certainly appreciate you and the ranking member having this
hearing this morning, and I appreciate your longstanding
leadership on all issues related to consumer protection.
In 2008, I served as the chairman of this subcommittee. At
that time, it was known as the Subcommittee on Commerce, Trade,
and Consumer Protection, and I was proud to author the Consumer
Product Safety Improvement Act--CPSIA--back in 2008.
So I am familiar with the issues that the CPSC faces, and
while I am very pleased that we are here today and discussing
how far the CPSC has come, I know you and I would agree that
there is much work that remains to be done by this agency.
And I want to ask the Acting Chairman Buerkle, the CPSC's
notice of proposed rulemaking to amend Section 6(b)--that
removes some of the self-imposed burdens being added in 2014, a
long time ago, but we made little progress since then.
And maybe you can tell me, Chairman Buerkle, what's the
status of the proposed rulemaking? And what are--maybe you can
also tell me--tell the committee what accounts for the delay
and when can we expect the Commission to move this process
forward?
Ms. Buerkle. Thank you very much, Congressman, and thank
you for all of your work on CPSA and improvements--all of the
work you have done to keep consumers safe.
With regards to 6(b) and the proposed rule, if I have your
permission I am interested--my colleague, Elliot Kaye----
[Side comments.]
Ms. Buerkle. He indicated to me that I can blame him for
the delay. When 6(b)--I think that's very gracious of you--the
NPR came out, there was just a tremendous amount of concern
about the issues and what 6(b) protects and doesn't protect.
And so the entire NPR was tabled, and at this time, quite
honestly, there is no work being done on that issue.
Mr. Rush. So are you saying then that we are still at a
point where you all are not moving forward at all? You can't
tell me when you are going to break this logjam up?
Ms. Buerkle. All I can say is there is no work being done
on 6(b). It is an NPR. I think at this point if we were to
bring the NPR back up it would have to be a new package,
because it is so old.
Mr. Rush. Well, Commissioner Kaye, you stated that people
are dying because of Section 6(b). Those are your statements.
Am I quoting you correctly?
Mr. Kaye. That is correct, and----
Mr. Rush. What rationale is there for maintaining Section
6(b) then?
Mr. Kaye. If I may distinguish, Congressman Rush, between
the statutory provision of 6(b), which exists because of
Congress, and the regulatory burden we added upon ourselves.
When I became Chair in 2014, I had to make a calculated
decision with the limited resources we had. I had inherited the
proposed rule from my predecessor, and at that point I made the
judgment because we had so many persistent hazards that were
pending--window blind cords, portable generators, ROVs--that
the time was better spent on addressing those hazards that
continue to kill people as opposed to something that I felt
Congress ultimately could take care of very easily, which is
repeal of the statutory provision, and that is really what I am
urging.
I think that if we were to pass the NPR, it would fiddle
around the edges of 6(b), but it's not going to change the
fundamental issue that I mentioned in my opening statement.
Only Congress repealing 6(b) would do that.
Mr. Rush. I want to thank you, Madam Chair. I yield back.
Ms. Schakowsky. I now yield to Mr. Cardenas for 5 minutes.
Mr. Cardenas. Thank you very much, Madam Chairwoman, and
thank you for having this important hearing.
As a grandparent of two children, trust me, this Commission
that was started in 1972 hopefully will protect my
grandchildren much better than it protected me.
I was a toddler before 1972. I won't say what years but
just say that the purpose of it is, I think, what makes this
country so respected around the world is that we care about
human life.
We care about what can be done better. We care about making
sure that we--there are sometimes winners and losers in the
jobs that we do.
But at the same time, the big winner is, especially when it
comes to public safety, is every person, whether the child is
newborn or they are somebody who decides that they want to
still work in the sawmill at the age of 80 or 90 because that's
what they love to do they should be able to do it safely.
I want to go to the--in 2018, CPSC published a consumer
alert stating that it was aware of infant deaths associated
with inclined sleep products and alerting consumers to be aware
of the hazards.
Unfortunately, CPSC at that time didn't specify which
products had resulted in infants deaths. So I am not sure how
helpful this alert was for parents and grandparents who were
trying to avoid dangerous products.
Coincidentally timed with this hearing, CPSC released
another alert this past Friday to warn consumers about the
Fisher-Price Rock 'N Play, noting that CPSC is aware of 10
deaths in the Rock 'N Play since 2015.
I am curious as to what changed between the consumer alert
in 2018 and just last Friday. Section 6(b) of the Consumer
Product Safety Act requires CPSC to notify the manufacturer
before public disclosure of certain information and that the
information disclosed is accurate and reasonably related to the
effectuating the purposes of the Consumer Product Safety Act.
The main purpose of that act is, quote, ``to protect the
public against unreasonable risks of injury associated with
consumer products,'' end quote.
So to you, Chairman Buerkle, when did you notify Fisher-
Price of the alert issued this past Friday?
Ms. Buerkle. We have been working with Fisher-Price over
the last several, I will say--at least the last year and even
more so, and I have provided to the chairwoman a time line with
regards to what the agency has been doing and how seriously we
are taking this issue because it is a grave concern.
What occurred between the generic notice and this last
notice was one death and so we went specifically out with that
more specific information.
Mr. Cardenas. So communicating with the corporation
involved it's part of your rules. I get that. But how
comfortable are you with how long it took between the initial
warning and then the specific warning?
Ms. Buerkle. Well, it--that is a very important question.
It isn't as if nothing happened and our staff--our staff does
all of the engagement and our staff is engaged with any firm
that we are trying to get someone to do a recall with.
But they--and we have other--several other initiatives
that, again, I hesitate to publicly state here but Chairwoman
Schakowsky has an entire time line of all the activities that
we are doing because this is a serious issue for the agency.
Mr. Cardenas. OK. That is fine. With my limited time, I
just want to make sure that the public is aware that even with
these incredibly responsible corporations, in my opinion,
unfortunately what happens is sometimes the corporation
themselves look at certain things as a cost of doing business,
and let me tell you, when it comes to the cost of doing
business versus the life of a child, no comparison, in my
opinion. Absolutely none.
So when it comes to working with a corporation to try to
get it right--and I understand the responsibility that you have
to have. You certainly don't want to find yourselves in a
litigation situation where a corporation will have one over on
you and besides the situation--hopefully, it gets corrected--
and then on top of that, they walk away with a few million
dollars because they were unduly damaged because we were way
too aggressive and we didn't mind our p's and q's.
So but the thing is I would hope that you are fortified
with enough staff and team members to do the job as efficiently
and quickly as possible.
My last question is how comfortable are you with the
funding level for your organization to be able to do its job
efficiently and effectively?
Ms. Buerkle. As I mentioned several times here this
morning, I think that we do need to have increased funding in
order to--even just to keep pace with inflation, but beyond
that to be able to look at emerging hazards, increase our data
capabilities, increase our technology.
Mr. Cardenas. Thank you, Madam Chair. I will be more blunt.
It sounds like you are way underfunded. Thank you.
Ms. Buerkle. That is correct.
Mr. Cardenas. In my opinion.
Ms. Buerkle. Thank you.
Ms. Schakowsky. I yield now for 5 minutes to Congresswoman
Dingell.
Mrs. Dingell. Thank you, Madam Chair.
It is great to see you all. I am sorry we are running
between two hearings because both of you are really, really
important.
News reports indicate that several companies determined
they needed to issue recalls during the Government shutdown,
and with most of the CPSC shut down and most staff furloughed
no one knew how to proceed or help guide companies through the
process.
Some companies held off. Some companies posted recall
notices on their websites. And then you later announced some of
these recalls yourself on your own website but not others.
So I guess I will start with Acting Chairman Buerkle. How
is it that no one knew how to handle a recall during the
shutdown and how did CPSC inform companies how they were to
address recalls during the shutdown?
Ms. Buerkle. Thank you very much for your question.
So I think, if I can speculate why they didn't know how to
handle a recall is because 99.99 percent of our recalls are
voluntary recalls and a reporting agency works so very closely
with staff, and staff determines and works with them to
determine what the terms of the corrective action plan will
be--what the press release will say.
And so I think for a recalling firm there was confusion as
to how do we do this without CPSC. What was made clear during
the shutdown was that duties--the duty to report if a product
could present a substantial product hazard, that duty did not
go away and I am very pleased to say that industry reported
during the shutdown to the same level they do when we are not
shut down.
But as soon as the Government was back opened, our agency
worked very closely with any of those firms that had a recall
during the shutdown to make sure that we issued another press
release, we put out the notice, and we followed our ordinary
course.
Mrs. Dingell. So I have heard from some--we have all heard
that there were companies that they didn't know how to alert
you if there was a dangerous product and consumers didn't know
what to do.
Were they able to report an incident on SaferProducts.gov
so other consumers could see it?
Ms. Buerkle. The good news is that the SaferProducts.gov
website was under contract. It was not affected by the shutdown
and consumers could report there and, again, that was one of
the data sources that was reviewed by our accepted staff during
the shutdown to make sure none of those reports in
SaferProducts.gov rose to the level of imminent hazard to
health and safety.
Mrs. Dingell. According to your shutdown procedures, only
20 of your 550 employees were expected to work during the
shutdown. How were you conducting import surveillance at U.S.
ports with only a handful of staff?
Ms. Buerkle. The risk assessment methodology--the RAM, as
we call it--continued to run. But we were limited, quite
frankly, and----
Mrs. Dingell. So there were holes?
Ms. Buerkle. As I mentioned in my opening statement, the
shutdown was a difficult way for our agency to begin 2019 and I
am very proud of what staff has done to catch up. But the ports
were a problem and a challenging one.
Mrs. Dingell. One of my--I am going to switch subjects--one
of my colleagues called me because he didn't know that you were
here--French Hill, actually a Republican--occasionally, you
know, we do work in a very bipartisan way--and had a child from
his district killed by an elevator--a tragic accident--and
asked me to raise what is a concerned product--what is the
Commission doing about ensuring these home-installed elevators
are safe and children aren't dying?
I don't--whichever one of you, but probably----
Mr. Feldman. Mrs. Dingell, thank you for the question.
You are raising a serious issue. Just recently we had an
opportunity to meet with families and are aware of fatalities
that have occurred with respect to the elevators.
I would hesitate to comment more about what is going on
with respect to agency and potential enforcement in this area.
I would like an opportunity to confer with staff and get back
to you with a more fulsome answer.
Mrs. Dingell. But you are addressing it now it's a serious
problem?
Mr. Feldman. I am aware of the issue and I am aware and
understand very, very fully that it is a serious issue.
Mrs. Dingell. So I think all of us here care and I would
ask that French Hill from Arkansas also be included because it
was his constituent--someone he knew--that died.
Thank you.
Mr. Feldman. Yes, ma'am.
Ms. Schakowsky. Thank you. The gentlewoman yields back, and
now I yield to Mr. Carter.
Mr. Carter. Thank you, Madam Chair, and thank all of you
for being here. This is an extremely important subject and we
appreciate all of your efforts in this--in this area.
I have the honor and privilege of representing the coast of
Georgia, and we have two major seaports: the port of Savannah
and the port of Brunswick. So this is of importance to us.
And I wanted to start with you, Ms. Buerkle, and ask you if
you could just help me to understand how CPSC works with--it is
my understanding you have worked with CBP to intercept
potentially harmful shipments that are coming through our
ports.
I am a little bit uneducated in this area. If you could
just help me.
Ms. Buerkle. Thank you very much for your question,
Congressman Carter.
The CPSC is very engaged and we have a very robust
relationship with CBP. We are colocated at about 26 ports--
major ports throughout the country and we also work with them
at Sea-Tac along with some other Government agencies as well--
any Government agency that has an interest in products coming
into the country.
And so in that process we have what I referred to earlier
was a risk assessment methodology. That is a system we have set
up on algorithms to look at products coming into the country to
see if they rise to a certain level, if it's a new importer, if
they have a previous history, and that is how we identify
products coming into the port.
So our compliance officers who are at the various ports we
do not have the authority to seize the product but CBP does.
But then we will conduct any inspection. We do a lot of on-site
testing.
We do a lot of XRF technologies and identifying whether or
not there's violative products coming in, and many of those
products then will go to our lab in Rockville, Maryland for
further testing.
Mr. Carter. One of the ports that we have in our district
is the port of Savannah, which is the second largest container
port on the Eastern seaboard, so this is extremely important to
us.
And as I understand, you have had some success, I believe,
in 2017 in the port of Charleston that there were some--a
shipment of toy scooters that were found to have high levels of
lead contamination. So that would be an example of something
you're talking about?
Ms. Buerkle. That would be a very good example of it and
there are multiple other examples, and I am hopeful that all of
the efforts at the ports where products are coming in may be
one of the reasons why our recall numbers could be--I am just
speculating here but I think we should really understand when
we stop products from coming into the country that are
dangerous, they never get into the consumers' hands. Therefore,
a recall isn't necessary, and that, to me, prevention is the
most important part of that.
Mr. Carter. OK. Yes, ma'am?
Ms. Baiocco. Yes. I would like to add to that because this
deals with the port of Savannah. I worked with a small business
in Georgia who had a product that they identified as being
counterfeit and was coming in only at the port of Savannah.
So they gave me a description and a sheet of paper that
showed the product, what color it comes in and what it doesn't,
and how it's packaged, and anything else was not the product--
should not be coming in.
So I was able to take that down to our--to the people who
work at the port. They were able to talk with their coworkers
at CBP and when they opened a box and saw this particular
product was pink and not red, it's a noncompliant product and
they were able to stop it.
So not all of the things that we are doing are high tech
but they do work. But I thought that would be a good example,
particularly in your jurisdiction.
Mr. Carter. Well, thank you. I appreciate that.
This past weekend I had the opportunity to travel with the
Port Caucus here in Congress to Antwerp, Belgium, and they were
showing us some of the products.
In fact, he had one that was somewhat comical. It was
Adidas that had been spelled Abibas. So I hope that you all
catch something like that.
But, nevertheless, just--I have got just about a minute
left. The 6(b) program--I guess that is a program that is very
important, particularly for manufacturers, too, so that they
aren't necessarily--you know, so they have the opportunity to
make sure that they are guilty or at least they are innocent
until proven guilty.
So can you just very briefly, Ms. Buerkle, explain the 6(b)
program?
Ms. Buerkle. Sure. Congress and CPSA and then CPSIA address
the issue of making sure that the information that we put out
is fair and accurate, and that is the 6(b) protection.
I know that there's a lot of discussion about 6(b) and the
value of 6(b), because also in CPSIA Congress also developed
and implemented SaferProducts.gov website and I think that
affords the consumer the ability to go in and to search and to
be able to access information about safety data.
So I hope that there is a good balance there. But if
Congress wants to change that authority that is their decision.
Mr. Carter. OK. Well, thank you very much. Again, thank all
of you for your work in this area. It is extremely important in
the 1st District of Georgia as well.
Thank you, Madam Chair, and I yield back.
Ms. Schakowsky. The gentleman yields back.
And now Congresswoman Blunt Rochester will have 5 minutes
for questions.
Ms. Blunt Rochester. Thank you, Madam Chair, and thank you
to all of you for your testimony and your attendance today. I
want to focus first on internet-connected consumer products and
cyber security.
We have heard talk about the Internet of Things, the fact
that your phone can actually control your alarm system, your
lights in your house, your heating, and we also know that these
devices can be hacked or disabled due to faulty software,
potentially causing physical safety hazards.
So one example that was particularly troubling to me was in
Wired magazine. There is an article about scooters that can be
controlled or hacked, accelerating or breaking them by people
external to the person.
So researchers found that not just the scooters, which we
have seen fleets of those in different cities, but even hover
boards can have this kind of problem.
Someone being able to control your device from a remote
location is deeply alarming for many reasons, not the least of
which is your life can be in jeopardy.
So it raises questions about security and safety of these
devices within the Internet of Things, including our kitchen
appliances and locks and wearables.
Commissioners Kaye and Feldman, you have both spoken about
some of these challenges before. How can CPSC address these
alarming safety challenges?
Mr. Feldman. Thank you for the question and thank you for
raising the Wired article. I am familiar with it and I have
referred it to agency staff for further review. If it is OK
with you I would like to follow up offline and give you and
update.
Using that as the example, the vulnerability and the
particular exploit, as I understand it, in that case had to do
with a Bluetooth vulnerability.
I have concerns and the agency has pointed out in its
budget request to Congress that we have an expertise gap with
respect to understanding new and emerging technologies
including things like Bluetooth. That is why I, along with
Commissioner Baiocco, advanced an amendment to hire a chief
technologist.
I know that sister agencies like the Federal Communications
Commission and the Federal Trade Commission have brought
individuals on in that role.
They tend to be academic Ph.D.s that split their time
between academia and advising the Commission about things like
Bluetooth exploits.
I think we need to understand the technicalities behind
those particular vulnerabilities before we can address them in
a meaningful way.
I would also say that we are not in and of ourselves a
security regulator in the sense that the Federal Trade
Commission or the Secret Service is. That is why I think it is
important that the agency has taken the step that it has taken
to convene an interagency working group so that our staff can
communicate with their counterparts across the independent and
Cabinet agencies so that at the very least we are all talking
to each other and operating off a common set of facts.
Ms. Blunt Rochester. Commissioner Kaye?
Mr. Kaye. Thank you, Congresswoman. I am not even sure we
can really call this an emerging technology anymore because it
has emerged, and that is a major concern that I have. In 2017,
the CPSC staff did an excellent report on emerging technologies
and I think they surfaced at that point, and we are happy to
get you a copy.
I think they surfaced the issues enough at that point to
know that there are concerns that consumers should have about
these products and that when there is that vulnerability there
could be safety implications.
Because I am not a patient individual, especially when it
comes to safety, after waiting a period of time, hoping that
something else would emerge and not seeing it, my personal
office staff and I drafted a paper of best practices that we
have circulated and that we are happy to get you as well, that
we feel like our bare minimum really that should be adopted
across the board to provide some comfort to consumers that
these products are not going to operate in an unsafe fashion.
Ms. Blunt Rochester. Thank you.
You know, I actually am skipping all the questions I have
in the middle because you brought up the chief technologies and
also a chief data officer.
I am big on the future of work. It's really important to
me, even to the point of starting a bipartisan caucus here, and
you have heard other Members talk about it as well.
Commissioner Feldman, you mentioned something about
opportunities that we can explore, I guess, in the interim, and
I know--I have heard the testimony so far about the needs that
you really do have from a personnel basis.
Are there things that we can do right now?
Mr. Feldman. I believe that there are, and that is why I
thought our amendment to add that position to our agency was
timely. Looking across the--CPSC is a small agency. It is a
resource constrained agency. Simply throwing more money at the
agency isn't always the right answer. I think that there are
efficiencies to be had.
When you look at our current staffing levels, we have
around 30 vacancies right now. It is possible to pull within
those existing vacancies, I believe, to supplement our
expertise.
I think it is critical that we do that. I see my time has
expired.
Ms. Blunt Rochester. Thank you. Thank you, Madam Chair.
Ms. Schakowsky. The gentlewoman yields back.
Mr. Griffith, you have been very patient. When I say he
waived on while not sitting on this subcommittee, we appreciate
your coming and welcome you now for 5 minutes to ask your
questions.
Mr. Griffith. Thank you very much, and I appreciate you
allowing me we waive on to this committee.
Acting Chairman Buerkle, I have some brief questions on the
furniture tipover issue, and I want everybody to know I really
appreciate what you all are doing. I am just trying to figure
out some things and try to decide what action I should take or
not take.
But when my now-11-year-old was about 3 he pulled a
grandfather or grandmother clock over on him. The good news is
he destroyed the clock but he was fine. A little shaken up, but
it was a light enough piece of furniture that it didn't cause
him any problems other than, you know, it stressed Mom and Dad.
But I do appreciate what you all are doing in this regard,
because I do think it is important that we make sure they're
safe.
So I guess a couple of my questions were--the leading
question would be how did you all arrive at the figure of 60
pounds versus 56 or 62 or 63 as the appropriate test weight to
modify the current standard?
Ms. Buerkle. I would answer that question and then I would
welcome any of my colleagues to answer it as well.
But the voluntary standards group, what they were doing was
they were basing it on the age and that has been the discussion
of the anthropromatic data that the average weight for a 5-
year-old is up to 72 months old, and so that weight is 60
pounds. Some would argue it's even slightly higher. But 60
pounds is where this issue has been stuck for a long period of
time.
Mr. Griffith. And is that because after 5 they start to
think a little bit better about climbing up on top of stuff?
I am just trying to get the thought process. Anybody can
answer it.
Ms. Buerkle. I think what is happening is that some are
looking at where the injuries are occurring and they are saying
what age group--why don't you focus on those.
But I think we have seen some fact patterns, most recently
where it has kind of enlightened, I will say, the agency and
how staff is looking in this issue and the question is will 60
pounds address the hazard or is it something else that will
address the hazard, and I want to reassure this committee that
our agency has invested significant funding and our staff is
doing robust testing to help inform us on this issue.
In the meantime, as I mentioned earlier, we are taking some
steps in the interim to try to make sure that this hazard is
addressed.
Mr. Griffith. And is there some data, and obviously it's an
ongoing process, but is there some data regarding those who
have complied with the voluntary requirements and those who
have not as to whether there are less accidents, more
accidents, et cetera?
Ms. Buerkle. The agency is--as I mentioned earlier, the
agency has put manufacturers on notice that there will be--
there will be testing to make sure that the current dressers
that are out there are compliant with the 2014 standard because
that is a concern we have heard.
I know within the industry there are companies that are
concerned that not everyone is complying with the standard. It
is time that we level the playing field and I believe that that
letter to manufacturers will help.
Mr. Griffith. That you sent earlier?
Ms. Buerkle. Yes.
Mr. Griffith. Yes, ma'am. But do you have any data as to
those that are complying and those that aren't as to whether
there are more injuries or more severe injuries? Or is it
anecdotal?
Ms. Buerkle. It is anecdotal at this point.
Mr. Griffith. Now, you probably already answered this. But
because I am not on the committee and don't hear these issues
regularly, I am just wondering if you can tell me basically
what the process would be to establish a mandatory standard.
What sort of data would be required and is there a cost-
benefit analysis? Of course, I would have to agree with one of
the previous people who said for saving a child's life it is
hard to do a cost-benefit analysis. What would be that process
for a mandatory requirement?
Ms. Buerkle. So it would be onerous to get us to a
mandatory standard, as my colleagues mentioned. Our Section 7
and Section 9 rule making--we have to make those findings and
it is important that the agency does because what will happen
is we'll get overturned in the courts if we don't make that
finding.
So as we explore possibilities to address this hazard, when
I met with Congresswoman Schakowsky and mentioned it earlier
today, the STURDY Act, that a piece of legislation may be a
more effective and a quicker way to go.
Mr. Griffith. All right, and I appreciate that.
I appreciate all of you being here today, and I know it has
been a long morning. But it has been very informative and it's
always good to see you, Madam Chair.
And I yield back.
Ms. Schakowsky. Well, that concludes the first panel. I
think all Members have--how many days?
[Side comments.]
Ms. Schakowsky. At this time, I will ask the staff to
prepare the witness table such as we may begin the second panel
shortly.
We do ask that Members may submit questions to you, and I
hope that all of you will respond promptly to those inquiries.
So thank you. Appreciate it.
[Pause.]
Ms. Schakowsky. So we will now hear from our second panel.
This is kind of the second-panel syndrome. Often, people--I am
hoping that some will come in and out.
And before I introduce everyone, I want to just thank this
panel. I want to particularly thank the advocates without whom
I think it would be hard to make the kind of changes that we
need.
But I also want to say that behind every one of the issues
that we are talking about are very brave parents who step
forward, often in the midst of very tragic situations, to bring
these issues to our attention and turn their pain into power as
advocates.
And, you know, this isn't just about policy. This isn't
just about rules and regulations or even budgets. This is about
real people. That is what I actually appreciate so much about
this committee--this subcommittee.
So let me introduce the panel: Rachel Weintraub, who is the
legislative director and general counsel for Consumer
Federation of America; Mr. Remington Gregg, Counsel for Civil
Justice and Consumer Rights at Public Citizen; Mr. Mike
Gentine--pronounced correctly?--counsel at Schiff Hardin, LLP;
and Ms. Nancy Cowles, executive director of Kids in Danger.
I want to thank all our witnesses for joining us today. We
look forward to your testimony.
At this time, the Chair will recognize Ms. Weintraub for 5
minutes to provide her opening statement.
STATEMENTS OF RACHEL WEINTRAUB, LEGISLATIVE DIRECTOR AND
GENERAL COUNSEL, CONSUMER FEDERATION OF AMERICA; REMINGTON A.
GREGG, COUNSEL FOR CIVIL JUSTICE AND CONSUMER RIGHTS, PUBLIC
CITIZEN; S. MIKE GENTINE, COUNSEL, SCHIFF HARDIN, LLP; NANCY
COWLES, EXECUTIVE DIRECTOR, KIDS IN DANGER
STATEMENT OF RACHEL WEINTRAUB
Ms. Weintraub. Chairman Schakowsky, Ranking Member McMorris
Rodgers, and members of the subcommittee, I appreciate the
opportunity to provide testimony today.
I am Rachel Weintraub, general counsel and legislative
director of Consumer Federation of America. CFA is a nonprofit
association of approximately 280 pro-consumer groups that was
founded in 1968 to advance the consumer interest through
advocacy and education.
The CPSC's mission impacts every American every day to
protect the public from unreasonable risks of death or injury
associated with the use of consumer products.
This mission relies upon full use of agency authority to
issue mandatory standards, assess civil and criminal penalties,
work on voluntary standards, and conduct recalls as well as
educating consumers.
I am going to focus my testimony on a number of key product
safety issues facing American consumers. But please see my
written testimony from my full--from my full comments.
Decades of deaths and injuries caused by window covering
cords and extensive advocacy efforts led to last December's
WCMA standard. A recent Pediatrics Journal article reported
that approximately 11 children die and 80 suffer near fatal
incidents every single year as a result of window cord
strangulation.
The new version of the window covering voluntary standard
requires that window coverings sold as stock or as-is must be
cordless.
This standard should also require that custom products be
cordless and the CPSC must monitor the marketplace for
compliance, especially online.
CFA's initial research has found inconsistently online with
stock products being sold with cords as well as a lack of
consistent warnings.
Flame retardants can be found in numerous types of consumer
products that have been associated with serious human health
problems.
CFA and other groups filed a petition urging the agency to
adopt mandatory standards to protect consumers from hazards
caused by the use of nonpolymeric additive form organohalogen
flame retardants in children's products, furniture, mattresses,
and casing surrounding electronics.
While the agency has voted to move forward with our
petition and acknowledge that CPSC has clear authority, much
more must be done.
On the Internet of Things, the Gartner firm estimated that
by the end of 2017 there would be 8.4 billion connected things
in use worldwide of which more than 5 billion would be consumer
applications and that by 2020 this would more than double.
The CPSC must lead efforts to address and prevent product
safety risks posed by connected products. CPSC's last May's
hearing gathered stakeholder input. Commissioner Kaye issued a
white paper this year and we are aware of some interagency
activity.
But it is not clear what the CPSC is doing and how they are
leading in this area. For example, in electronic scooters,
Bluetooth module was hacked and the hacker was able to control
the braking and acceleration of the scooter.
The CPSC must take enforcement action to protect consumers
from this unequivocal product safety hazard.
On liquid nicotine, there has been confusion about
enforcing this important law. At first the CPSC misinterpreted
the start date, delaying application, and then did not include
flow restrictors in its 2018 guidance letter to industry.
The CPSC has since clarified the law but we remain
concerned about the CPSC's enforcement and the fact that
noncompliance, as we saw in the first panel, remain on the
market.
The CPSC must monitor much more carefully, must take
enforcement actions for noncompliant products, and we urge the
IOG to investigate the CPSC's delayed and misinterpretation of
the law.
On electric scooters, the growth of electric scooters and
the injuries they cause has been profound. Consumer Reports had
identified 1,500 scooter injuries across the country from late
2017 with numerous gaps in data collection and reporting.
Again, the CPSC should be leading this effort. The CDC is
working with the Austin Public Health Department on
investigation. But the CPSC must do much more.
On portable generators, much more needs to be done. On
average, there are about 70 deaths and several thousand
nonfatal injuries every year associated with CO poisoning from
portable generators.
We need a mandatory standard, we need compliance, and we
need to make sure that fewer people are dying from using
portable generators in emergencies.
In conclusion, the CPSC plays a critical role in ensuring
that consumers are safe from product hazards and this
subcommittee plays an important CPSC oversight role.
We look forward to working with the subcommittee and the
Commission to prevent deaths and injuries from consumer
products.
Thank you very much.
[The prepared statement of Ms. Weintraub follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Schakowsky. Let me now call on Mr. Gregg for 5 minutes
of testimony.
STATEMENT OF REMINGTON A. GREGG
Mr. Gregg. Good afternoon, Chair Schakowsky, Ranking Member
McMorris Rodgers, and members of the subcommittee.
On behalf of Public Citizen and now more than 500,000
members and supporters, thank you for giving me the opportunity
to testify.
My written testimony explores a wide range of issues but I
would like to talk to you about two areas of concern--removing
Section 6(b) of the Consumer Product Safety Act from law and
ensuring robust enforcement of product safety laws.
According to a Public Citizen report, the CPSC took an
average of 209 days to warn the public about hazardous products
in 46 cases from 2002 to 2008 in which the Commission levied
fines against the manufacturers.
We believe that the Commission took so long to notify the
public in part because of the requirements of 6(b). 6(b)
restricts the CPSC from publicly disclosing any information
from which the public can readily ascertain the identity of a
manufacturer or private labeller unless certain criteria are
met.
The requirement has the effect of stopping or slowing the
flow of pertinent information from getting to the public.
Withholding information from parents, children, and other users
of these products for such an unreasonable amount of time puts
all families at risk.
The law unnecessarily hamstrings the agency with
restrictions that, to our knowledge--and this is key--no other
similarly situated government health and safety agency has to
endure. The requirements of the 6(b) are outdated. They are
anti-consumer.
When Congress passed the Consumer Product Safety
Improvement Act in 2008, rather than remove 6(b) from statute,
Congress decided to require the CPSC to create
SaferProducts.gov, and we are pleased that Congress did that.
It is clear that SaferProducts.gov has become a critical
tool for protecting consumers from potential hazards and helps
to close the time gap between the manufacturer learning of a
hazard and the information actually reaching consumers.
But what was clear a decade ago is even clearer today.
Section 6(b) restrains the CPSC in its ability to proactively
disclose safety hazards to the public. There isn't a lot of
6(b) case law.
But what is out there shows that companies have used it not
to ensure that accurate information is out in the public domain
but to delay critical information from being released.
There is a very big difference between correcting
objectively and accurate information and simply delaying or
killing the release of information that could be potentially
damaging to the companies' bottom line.
Congress should ask itself what is the point of 6(b). Does
it now or has it ever helped the agency effectively carry out
its mission to keep products that have the potential to injure
or cause death out of the marketplace, and if not, why keep it
around? Why give industry insiders and corporate America the
reins to legislating?
In terms of criminal and civil penalties at the agency,
there is now a disinclination to place the safety of consumers
over industry loyalty and a steady decrease in the number of
penalties imposed on corporate bad actors.
Criminal and civil penalties serve as an important tool to
discourage companies from cutting corners on manufacturing
products and they also create an incentive to ensure that
manufacturers quickly report product defects.
The data clearly suggests that Commission leadership is
prepared to continue a less enforcement is best attitude. We
urge the Commission to make it clear--Congress, excuse me, to
make it clear that the agency--that its mission is to protect
the public from unreasonable injury or death and it requires
the Commission to promulgate robust rules to protect consumers
and hold corporate wrongdoers accountable with strong penalties
that serve as an effective deterrent.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Gregg follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Schakowsky. The gentleman yields back.
And now I am happy to give 5 minutes for an opening
statement to Mr. Gentine.
STATEMENT OF S. MIKE GENTINE
Mr. Gentine. Thank you very much, Chair Schakowsky, Ranking
Member McMorris Rodgers, and Members.
Good afternoon, and thank you for inviting me to appear
before you today. Thank you as well for holding this hearing to
talk about the vital work of the Consumer Product Safety
Commission.
First, I should note that I am appearing in my personal
capacity. My opinions are my own, may not represent those of
any previous or current form employer or client.
I am honored to share this panel with three tireless
consumer advocates, each of whom I have come to know and
respect even though we may sometimes disagree about how we
pursue our shared goal of advancing consumer safety.
I've also had the privilege of working alongside many of
the talented dedicated staff at CPSC who devote their lives to
protecting consumers. Every officer and employee of the CPSC is
a public servant in the truest sense of that term and they all
deserve our thanks.
The notice for this hearing asks a simple question: is the
Consumer Product Safety Commission fulfilling its mission.
From my perspective, the answer is equally simple. Yes.
As you know, CPSC is charged with protecting against
unreasonable risks of injury associated with consumer products.
Since 1972, CPSC has worked alongside the consumer products
industry to fulfill that mission.
Most of that work goes unnoticed, from thousands of
incident reports to hundreds of recalls to dozens of standards,
CPSC is continuously engaged in a variety of efforts that most
consumers never see but that benefit every consumer.
The third of these activities--working on standards
bodies--has been criticized of late, and I fear that criticism
comes from some misunderstandings about the role that voluntary
consensus standards play.
First, while they are legally voluntarily standards, myriad
influences drive manufacturers toward compliance. These include
retailers who demand certification for shelf space and CPSC
staff and civil courts who use voluntary consensus standards
and defect determinations.
Second, they are consensus standards. They are the products
of collaboration between all interested stakeholders including
CPSC staff, whose opinions carry great weight.
Indeed, consensus standards can be more collaborative than
rulemaking. By the time an agency issues an NPR, much of its
thinking is developed if not cemented. Voluntary consensus
standards start with collaboration.
The consensus bodies also offer safety advantages. They are
a force multiplier for CPSC staff. They are made up of product-
specific experts and they are better able to adapt to
developing hazards and emerging innovation.
CPSC also has tools to make these mandatory--excuse me,
these nominally voluntary standards more mandatory. It can give
standards for durable infant and toddler products the same
effect as mandatory rules.
It can rely on a standard, creating a reporting obligation
for noncompliant companies, and it can force recalls or prevent
importation of products whose readily observable
characteristics show they do not comply with the standard.
With these tools, CPSC can use voluntary consensus
standards to provide a safer, more level playing field rather
than one that slants in favor of the noncompliant company.
As with the voluntary consensus standards process, the
information disclosure provisions of Section 6 of the CPSA have
been criticized of late. But that criticism ignores three key
principles.
First, Section 6 creates process requirements. It does not
prescribe or proscribe any outcome. Second, it asks CPSC to
take reasonable steps to ensure the fairness and accuracy of
its disclosures. Why would we want the agency to do anything
else?
And third, CPSC has multiple vehicles consistent with due
process that allow it to either shorten or eliminate the modest
time these steps require.
Some point out that other agencies are not subject to the
same restrictions. This is a half truth. Other agencies also do
not have the same access to information.
Section 6 assures companies that CPSC will handle carefully
information that other agencies never receive. That assurance
enables candid discussions that better inform CPSC staff.
Without it, those conversations would be more limited and
consumers would be less safe.
There are areas in which I believe the agency can improve.
First, for an example and as raised by Congresswoman Matsui, I
agree with the industry and consumer advocate consensus that
CPSC should adopt California's Technical Bulletin 117.
This flammability standard has proven effective and
manufacturers can meet it without the use of chemical flame
retardants.
Second, CPSC's import surveillance program can only
physically surveille a handful of ports. The agency needs data
tools that can more reliably distinguish between higher risk
and known compliant products before their arrival.
And third, CPSC's fast track voluntary recall program
should recover its speed, as some recalls are taking months for
approval.
CPSC must, of course, do its due diligence. But it is not
in anyone's best interest if staffing constraints unnecessarily
impede companies whose sole aim is to act swiftly to protect
consumers.
I began with two assertions--that CPSC is fulfilling its
mission and that its successes come from the public service of
the talented dedicated people who make up the agency.
I believe strongly in both. While the agency should always
seek to improve, consumers can draw comfort from their faithful
watchdog in Bethesda.
Thank you.
[The prepared statement of Mr. Gentine follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Schakowsky. The gentleman yields back.
And now I welcome Ms. Cowles for 5 minutes for her opening
statement.
STATEMENT OF NANCY A. COWLES
Ms. Cowles. Thank you, Chairman Schakowsky, Ranking Member
McMorris Rodgers, and subcommittee members for this opportunity
to testify before you about the CPSC's mission.
KID is a nonprofit organization dedicated to protecting
children by fighting for product safety. We were founded in
1998 by two Chicago parents whose son, Danny, was killed in a
poorly designed and untested portable crib.
As Danny's mother foresaw when she testified before a House
subcommittee in 2004, improved children's product safety will
be Danny's legacy.
Last month, we released our report on 2018 recalls. We
found that the number of recalls overall was the lowest since
2003 and the number of children's products recalls as well as
the units of children's products recalled were the lowest since
we started tracking in 2001.
It is tricky to say whether low recall numbers are a good
thing, pointing to safer products or a sign of lax enforcement,
leaving dangerous products on store shelves and in our homes.
Indicators this year such as other less effective actions
in lieu of recalls make us worry that now it is the latter.
After filing suit last year for a recall of the BOB
strollers with almost a hundred injuries, CPSC settled for an
information campaign that is explicitly not a recall and lasts
only 1 year.
Unlike recalled products, these BOB jogging strollers can
be legally sold in the secondhand market, meaning we will see
continuing injuries.
KID has also looked at recall effectiveness numbers
reported by recalling companies to CPSC each year. For this
year's report, we were unable to get that data due to a lack of
response from the CPSC's FOIA office.
But according to the CPSC in the hearing that was held,
that number is under 10 percent. One example is the 2016 recall
of IKEA dressers. Publicly available information shows that
fewer than 2 percent of these dressers have been returned to
IKEA for a refund.
IKEA has focused their messaging almost exclusively on
anchoring the dressers rather than returning them for a refund
and getting them out of homes.
Every 10 days a child dies when a dresser or other
furniture tips over on them and crushes them. Every 18 minutes
a family rushes a child to the emergency room for that same
hazard.
There is no Federal standard to stop manufacturers from
making unstable furniture. The voluntary ASTM standard lag
behind the evidence that all of these incidents provide.
Industry has been dragging their feet for years and
children are paying the price. Several families whose children
were killed by furniture and TV tipovers have joined together
to form PAT, Parents Against Tip-Overs.
The group participates in the voluntary standards settings,
has met with CPSC leadership, and, I dare say, will be in to
see each of you if they haven't already.
As Lisa Siefert of Barrington, Illinois, said when she
joined KID last month to announce support for legislation on
this issue, if action had been taken when her son, Shane, was
killed 7 years ago, these other families could be home with
their children now.
An effective standard would include all storage units and
testing protocol, would represent all children under 72 months,
and include tests to account for real-world use.
We also need that strong standard to be mandatory so that
every family can be sure that the furniture they purchase is
stable.
We support the STURDY Act to achieve this goal. We've heard
about 6(b). I will just say parents should not have to wait on
the manufacturer's timetable before learning that their child
is sleeping in a deadly crib, playing with a lead-tainted toy,
or riding in a stroller prone to losing a wheel.
Section 6(b) should be repealed or, at the very least,
should be--more should be done to weaken its negative impact on
safety.
Through the implementation of Section 104, or Danny's Law,
of the CPSIA, CPSC has successfully implemented strong
mandatory standards for 20 types of durable infant and toddler
products.
Five from the original list remain, however. Either they
have been passed but the effective date has not been reached or
they are still pending.
But last year was CPSIA's tenth anniversary. More than a
decade after passage of this landmark legislation, consumers
still have no assurance that all nursery products are tested
for safety before they reach store shelves.
We believe just as standards of all these new designs
introduce potential hazards, the group of products covered by
Danny's Law should also evolve as new products enter the
market.
Among children's products safety issues a safe sleep
environment is an overriding concern. Suffocation, most of it
in a sleeping environment, is the leading cause of
unintentional death in infants.
The number of sleep-related deaths in infants is a public
health emergency. We heard this from this week's warning on
Fisher-Price Rock 'N Play that these products carry risk of
suffocation and death.
Consumer Reports released an article documenting the
additional hazard of positional asphyxia in younger babies that
was not in CPSC's warning. This products and others that pose
the same hazard should be recalled.
Again, thank you for allowing me to testify today. We
appreciate the attention and oversight that your committee is
bringing to these important issues.
[The prepared statement of Ms. Cowles follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Schakowsky. Thank you all for your important testimony.
I want to just say a special thank you to Commissioner
Adler and Commissioner Baiocco. Thank you for staying for the
testimony of Panel II. No, I understand you have other things
to do. But I am very happy that you were and are here.
So now we will turn to our Members for 5 minutes and I
will--questions, and I will begin.
It is so tempting and I think I will go to that, to look at
some of these particular incidents that are now threatening our
children and I do want to see if we could get answers that deal
with the item, for example, of furniture tipovers but also how
that reflects on the Commission and how we can improve.
You know, right now, the CPSC launched the Anchor It!
campaign in 2011 to explain to parents why they need to anchor
the furniture against the wall.
So we are now talking about an 11-year effort to reduce the
number of deaths and, as was pointed out, they continue and the
injuries continue at a rapid pace.
So it seems to me that, first of all, this idea of
anchoring, if you are a renter and you are told put a hole in
the wall so that you can anchor that dresser, some will say,
absolutely not, because I want my down payment on the apartment
and I am not going to put a hole in the wall that is effective.
But how can we allow an 8-year problem or maybe even more
to go on with these furniture tipovers? Anyone who wants to
answer.
Ms. Cowles?
Ms. Cowles. Yes, I will start on that. We worked very hard
on this issue. We have participated in the ASTM furniture
subcommittee, which I have to say, I work on a lot of ASTM
committees. They are all a little bit frustrating for the
consumer advocates. But this one in particular there has just
been stonewalling of progress in that committee.
We also--we support the Anchor It! campaign. There is a
need right now, because furniture is unstable for parents to
consider and look at ways to make sure that they have stable
furniture and one of those is anchoring.
But the long-term solution is to make stable furniture.
There are ways to do this. We work with university students who
have some great designs that cannot tip over. They are as
effective as a strap holding it to the wall. We appreciate the
comments made by Chairman Buerkle recently saying that she
would enforce the voluntary standard, saying that calling for
additional weight in the testing.
That one in particular is probably getting stuck right now
in the ASTM committee. We----
Ms. Schakowsky. Not only weight but aren't we going to have
a test where kids' weights are actually----
Ms. Cowles. That was not part of her commitment at this
point. We certainly look for that in the future. That is what
is going to be necessary to do.
But in terms of enforcement, in 2016 KID and Shane's
Foundation did research. We found noncompliant dressers as did
CPSC that same year, Consumer Reports last year. This statement
that was made in February we still see very few. We have seen
no furniture recalls in the past year and 4 months--3 months of
this year.
So it's OK to talk, but we need to start seeing action on
this because, again, just picture every 10 days a child is
dying and the number of that group and PAT is just growing and
they don't want their core to grow.
Ms. Schakowsky. Ms. Weintraub, you mentioned a whole bunch
of different things that we need to do at the CPSC. How come it
has taken so long to address them?
Ms. Weintraub. I think that's a great question and there
are many factors to it. I think you need political will. I
think the agency needs to use the tools at their disposal.
Based on the safety hierarchy, warnings are the weakest
thing we could do. We need the Rock 'N Play to be recalled. We
need the Britax to be recalled. We need civil penalties that
are meaningful and not merely a cost of doing business, and
with the voluntary standards CPSC by statute relies on
voluntary standards but those process, while they may meet the
technical definitions of consensus, they vary widely and, as
Nancy mentioned, it is a very difficult process. There are few
consumers. Sometimes the standard is already completely baked
when consumers have any access to it.
There are many issues and I think 6(b) is one that pervades
everything. There is the rule itself, which I think Mr. Gentine
outlined some of those things. But there is also the culture.
The culture of 6(b) and the shadow of 6(b) is so vast that
it impacts everything the agency does and gives companies
negotiating with the agency huge amounts of power and,
ultimately, consumers suffer as a result.
Ms. Schakowsky. Thank you. Boy, 5 minutes just goes rushing
by.
I am going to yield now to the ranking member, who says
it's OK to just say ``Mrs. Rodgers.''
Mrs. Rodgers. There we go. New improved.
Thank you, Madam Chair, and I appreciate everyone being
here and sharing testimony today.
I wanted to start with Mr. Gentine, and from your testimony
it's clear that you're a proponent of voluntary standards.
Can you please explain why they help protect consumers?
Mr. Gentine. I think, from the outset, the first is simply
a matter of scale. CPSC in this current fiscal year is engaged
in 76 different voluntary standards activities on top of the
mandatory rulemakings on top of recalls, et cetera.
There is simply no way. I know we have talked a lot about
CPSC's budget and I would join the chorus to say that it should
be a bit higher.
But a CPSC that was big enough to engage directly in all of
those issues, some of which are more on the level of monitoring
and looking for continuous improvement would be a CPSC that
carries an awfully large price tag and, frankly, would be
intrusive in ways that I don't believe it's intended to be.
It's intended to be a partner with industry, with
consumers, with advocates in building a safer consumer products
market.
So I think, again, for one, just a matter of economy or
staffing realities that CPSC cannot get into all of those
issues. But beyond that, I think the fact that they're closer
to the individual products at issue is key for me.
The standards bodies, as Ms. Cowles mentioned, have
engineers on them who have designed and worked on those
products--those specific products their entire career. CPSC--
550 people--a fraction of those are engineers. They have to be
generalists. They cannot--they do not have the luxury of
focussing their careers on one product.
So I think there is a greater expertise and, again, a staff
multiplying effect that is vital for consumers.
Mrs. Rodgers. Thank you. How old is the oldest open rule on
CPSC's agenda and should the Commission consider cleaning up
the docket, moving forward?
Mr. Gentine. To answer those, I suppose, in reverse, one,
CPSC definitely should. There are rules that have been around
for a while and I can't confidently assert that it's the oldest
but the oldest one I am aware of is the open rulemaking on
upholstered furniture flammability.
The NPR in that was issued actually shortly before a
certain Mr. Simpson sort of took a ride in a white Bronco. So
it's now of legal drinking age, which I suppose is a good thing
for an NPR. I am not sure.
So I think the reality that that drives home is that CPSC
has been in this issue for a while and hasn't come to a
conclusion, and I take Commissioner Adler's point that there
are some process issues about adopting California's standard.
I think they can be overcome and, more importantly, I think
they should be overcome. Staff has some reservations about
that. But I think the opportunity exists to lock in what we
already have, which is a very good standard from California,
and then pursue whatever is left.
Mrs. Rodgers. OK. Another question on Section 6(b), which
we have talked about some this morning. It has been
characterized by some as a kind of gag order.
Would you speak to that description and why the procedures
laid out in Section 6(b) are important for consumers?
Mr. Gentine. Sure, and I think one thing I would take issue
with is the notion that it is somehow there is a power for
companies in that. There really isn't much power because the
only--the only enforcement mechanism prior to a Commission
statement is a willingness to litigate against CPSC in open
court, and we don't see a lot of that for very good reasons.
And there is no poststatement enforcement mechanism beyond
requiring CPSC to correct any inaccuracy. There is no mechanism
for a company to get any kind of redress for what is simply a
process violation.
So I think, you know, there is a nuance to this issue that
has been cast aside and, again, it's important because, as Ms.
Cowles talked about, you know, the difference between the
number of recalls and the number of reports that is there for a
reason. That was a deliberate choice by Congress to set a
reporting threshold that's very, very low--much lower than a
recall threshold.
As a result of that, especially as companies take CPSC's
message and when in doubt report, that means CPSC is getting a
lot of information that would not form the basis of a recall.
And I am not sure how it is in consumers' best interest to
flood the market with even more ostensibly safety-related
messages that don't have any concrete action to them and,
frankly, may not have a basis in reality.
Mrs. Rodgers. The title of today's hearing is, ``Is the
Consumer Product Safety Commission Fulfilling Its Mission?''
You answered yes. Would you just elaborate a little bit more on
why you believe that to be the case?
Mr. Gentine. Certainly, and I keep going back to my good
friend, Commissioner Adler, who has got probably the longest
running perspective on this agency.
And as he pointed out, there have been dramatic reductions
in all sorts of deaths and injuries, and some of that is the
direct result of the Commission's actions but more of it is the
way the Commission has engaged with industry with consumer
stakeholders to bring attention to issues and to address them
where they can be addressed through design or manufacture.
So I think, frankly, those numbers speak for themselves
and, of course, there is more to be done. There will always be
more to be done.
Perfect is not attainable. But the fact that we haven't
gotten to an unattainable state does not mean CPSC isn't
fulfilling its mission and I think it is.
Mrs. Rodgers. Thank you. I yield back.
Ms. Schakowsky. And I now call on Mr. McNerney for 5
minutes.
Mr. McNerney. Well, I thank the chairman--the chairwoman--
and I thank the panelists.
You will notice I am wearing pink today. I wanted to show
my softer side so I shouldn't have any troubles.
First of all, on recalls, recalls don't do any good if
people don't know about it, if they are not able to or don't
know about it or don't want to--don't have any way to get their
product recalled.
So, Ms. Weintraub and Ms. Cowles, your groups participated
in a recall effectiveness workshop in 2017. Now that it's 2
years later, have there been any improvements?
Ms. Weintraub. Not that we have seen concretely. The notes
were publicized, which took a while to happen. But,
unfortunately, there are fewer recalls. There are more
announcements about products that we think should be recalled
but that aren't.
I think a key principle about recall effectiveness, and we
have to call an enforcement action a recall--that triggers
consumers knowing more about it. If something is a recall or if
something is an education campaign, a lot of people aren't
going to find out about it.
So, at a minimum, it needs to be called a recall and both
the CPSC and manufacturers need to do everything they can to
communicate that information to consumers and we know that that
is not happening, especially due to Nancy's great report.
Ms. Cowles. Yes, and I will just add to that. So not only
did we see the number of recalls go down last year, we saw CPSC
came to Facebook in 2017 and reported 75 percent of the recalls
on their Facebook page.
And social media isn't the panacea. It's not the total
answer. But it shows an intent. Certainly, consumers follow it.
Last year, that dropped to 45 percent. So they are already
dropping back from the one tool that they added to their
arsenal.
And actually I mentioned Linda was here in 2004 and she
said something that is still true today. These companies know
exactly how to reach us when they are trying to sell us a
product.
They need to use those very same tools when they are trying
to get the product out of the market. That means marketing.
Rachel worked hard to try and get marketing experts for CPSC to
invite to that hearing.
They were not invited. There are tools. These are companies
that do great outreach to consumers. They know how to reach us.
They can get these products back if it was a priority of both
theirs and the agency's.
Mr. McNerney. Does the agency have the tools to compel
these businesses to use their resources to publicize recalls?
Ms. Cowles. Well, that is the issue, right, and Chairman
Buerkle alluded to it earlier when she said it was better to
take this very sad action with Britax.
It really does nothing to make consumers whole than to keep
fighting for a recall when a company doesn't want to do it. The
companies are really in the driving seat with the recall. They
edit the press release. They determine what they are willing to
do.
One of the rules that is pending would put into place
mandatory things that would have to be done for every recall
and that has just not gone anywhere.
And so, unfortunately, you know, there is just not enough
pressure on companies to reach some number above 10 percent of
the products recalled.
Mr. McNerney. OK.
Mr. Gregg, what are some actions that the agency could take
to get information out about recalls?
Mr. Gregg. Well, I think that one important next step would
be to get that chief technologist or experts who actually know
more about technology.
In the previous administration I worked at the White House
Office of Science and Technology Policy, and that was one of
the big things we did which was to try to ensure greater use of
technology to reach the whole of the American people as well as
making government better.
And right now what we are seeing is just an inability to do
that and you can do--there are things that can be done. Just
think about what we do--what we use with our phone right now.
We use it for everything.
And you could--you could use it when you go and buy
something and you could use the bar code and you could scan it
and you would know--and you could--the company would know all
of your information and as soon as there was a recall could
push out a notification there has been a recall.
That can be done. Now, do we want that to be done? That's
probably a decision and policy question that we have to grapple
with. But the technology is out there, which is the important
point, and the agency needs to lead into it.
Mr. McNerney. Well, I mean, one of the deterrents of bad
products is that you get put on a recall and then customers
aren't going to--they are going to be more cautious about your
products.
So companies are going to naturally resist this.
Mr. Gregg. And that is what they are doing right now, yes.
Mr. McNerney. OK. Moving on a little bit, you--emergency
rooms are monitored for product safety. But what about urgent
care centers and other avenues that people go to that aren't
being monitored that could be monitored?
Ms. Weintraub. So that is true. Currently, the CPSC has a
system called NEISS. It is a representative sample of 100
hospitals and for those selected hospitals they intake product
safety incident information and CPSC then makes national
estimates. And as of now, the NEISS system is--does not include
urgent care centers.
However, I would say that the NEISS system is one of the
best systems. Even with limitations that we have, CDC relies on
it. Other countries use it as a model.
So while it could definitely be improved, it is imperative
that it remain in effect as it is a very important source of
safety information.
Mr. McNerney. OK. I will yield back.
Ms. Schakowsky. And I thought I heard Acting Commissioner--
or Chairman Buerkle say that she wanted to include urgent care
data, going forward. So, hopefully, we can help make that
happen.
Mr. Bucshon for 5 minutes.
Mr. Bucshon. Thank you very much.
First of all, I am going to start out by saying I think--I
am going to go by the assumption that over 500 employees and
the Commissioners at the agency are on all of our sides, trying
to do the best they can to make sure the consumers are safe as
you are, too.
So basing it from that, sometimes I think we make the
assumption there is nefarious activity here and I think a lot
of times it has to do with legal and sometimes policy--legal
barriers and policy differences that we need to debate and that
is why this hearing is so important.
Quickly, Mr. Gregg, in your written testimony you said an
average of 209 days to warn the public in 46 cases between 2002
and 2008. I was just interested in what is the start date for
the average.
Because if it is from the initial complaint to the CPSC or
is it from when it is determined to be valid complaint or is it
when the fine is levied, because I think that is important.
Because the reason is let me just say is because I think it
is a long time, it seems like, on the face of it. But the
reality is is that, you know, from a competitive standpoint if
all you had to do was complain to the agency about your
competitor's product and they sent out a warning, you know, I
am just using an extreme example.
So what is--kind of in short, what is the time--what is the
start date on that?
Mr. Gregg. That would be from the--when the--I will double
check but I am almost positive it is from the date that the
agency gets that--gets warning that there is something afoot
that they need to look into.
Mr. Bucshon. OK. So that is what I am trying to clarify
because, I mean, you could send a warning, right, about a
product or anyone could send a warning.
And so I think it is important to--as in the context of
Section 6(b) I guess, you know, it is important to make sure
that there are--they are valid and then to move as quickly as
possible to get that warning out to the consumers.
Mr. Gregg. The one thing I would add to that, which I just
wanted to ensure we get on the record, the policy discussions
are important.
You know, the Supreme Court has interpreted 6(b) to be--
that FOIA is included in 6(b). So, again, that is something
that this agency has and no other agency has where, for
example, information can't go into the public in the FOIA
context. So we can have that discussion but it's hamstringing
in other ways, too.
Mr. Bucshon. I get that.
Mr. Gentine, do you think the CPSC could ever handle
implementing mandatory standards for every product under their
jurisdiction?
Mr. Gentine. No. No. Again, as a matter of scale and,
frankly, you know, in a lot of situations we've talked today
about some voluntary standards that people believe need
improvement and, certainly, every standard every rule--every
human activity can always be improved.
But there are a lot of voluntary standards covering
products within CPSC's jurisdiction that aside from sort of
regular cyclical review aren't ever at issue because they are
working very well and they are keeping those products--keeping
those consumers safe.
So I don't think--I don't think CPSC ever could issue rules
to cover all 15,000 products in its jurisdiction and I don't
think it should even if it were possible.
Mr. Bucshon. It doesn't seem practical, at least with the
current staffing levels, to make that happen. I think you
commented that to try to do something like that would just
massively expand the staffing levels and the money required to
do that.
Mr. Gentine. Correct, and that is----
Mr. Bucshon. When they--when it sounds like from what you
just said that in many--in most cases voluntary standards are
being complied with?
Mr. Gentine. Correct. And not only where----
Mr. Bucshon. Many times.
Mr. Gentine. Where there are gaps, you know, that is what
CPSC is there to do, to help fill the gaps one way or another.
Mr. Bucshon. Yes. And, again, can you just reiterate again?
You already commented on this a little bit. Like the top three
areas where you think maybe there can be some improvement at
the CPSC?
Mr. Gentine. Sure. One of them----
Mr. Bucshon. I think this is an important point. That is
why I want you to kind of reiterate again.
Mr. Gentine. Certainly. One of them I did mention was TB
117, the upholstery furniture flammability standard. One that
is in my written comments but didn't, you know, meet the 5-
minute cut was on the question of tipover. Again, there are
certainly open questions about the adequacy of that standard
and how its testing works.
But I think at a minimum to take that standard and make it
mandatory would at least help ensure that noncompliant products
aren't getting in and then we can talk about moving the
standard--moving the standard forward.
And I think, again, we come back to resource constraints. I
say I don't want a CPSC big enough to write rules on all 15,000
of its products.
But I think a CPSC with more robust resources than it has
now that would allow it to get into more data and technology
issues and would allow it to speed recalls along I think would
benefit everyone.
Mr. Bucshon. Yes. I mean, I think particularly as it
relates to children, you know, because obviously they can't
report that my crib isn't working properly, right?
So, I mean, in that respect, you know, you could create a
prioritization of what things should be mandatory maybe and
involuntary and credit--kind of prioritize what things are the
most at risk for the consumers, particularly children.
Mr. Gentine. Certainly. Thank you.
Mr. Bucshon. Yes. I yield back.
Ms. Schakowsky. Well, that completes our second panel. I
want to thank you all so very much.
I wanted to make a comment and if you would like to,
Ranking Member, also. One of the takeaways that I have that
seems pretty unanimous is that the Consumer Product Safety
Commission needs more resources.
And I hope we are thinking big. When I think about all the
problems that--and the dangers that are out there that are
under the jurisdiction of the Consumer Product Safety
Commission, we have an agency that started small and all we
have had are sort of incremental increases that pretty much,
relative to other agencies, keep it small.
And so I hope we can be bold in our thinking about and
begin with what does the Consumer Product Safety Commission
really need to be effective in handling all that is under its
jurisdiction and go for that kind of increase and, perhaps,
authorities that would make it a more effective agency because
it is so important.
And I yield to the ranking member, if you want to make any
comments.
Mrs. Rodgers. Well, thank you, Madam Chair, and I do want
to say thanks again to everyone who testified, the consumer
advocates as well as the Commissioners for being here today. It
is great to see all of the positions filled on the Consumer
Product Safety Commission.
I am hopeful that we will see Ann Marie Buerkle confirmed
shortly in the Senate so that we can continue to move forward
on addressing these important issues.
And I too would acknowledge that there was broad agreement
that there needed to be more support, more resources, more
funding for the Commission in order to--for them to continue to
do the good work that they are doing and I look forward to
working with everyone to make sure that this Commission is
doing everything possible to protect our consumers, our
families, our children from the many, many products that are
out there, and thank you again for this hearing.
Ms. Schakowsky. Thank you. I would like unanimous consent
to enter into the record the following documents: a letter from
the Electronic Privacy Information Center; a letter from CPSC
Acting Chair, Ann Marie Buerkle, to ASTM International; a
letter from the National Association of Manufacturers.
I seek unanimous consent. Without objection, they are
entered into the record.
[The information appears at the conclusion of the hearing.]
Ms. Schakowsky. And the committee hearing is--oh, wait. Let
us see. I do want to again thank the witnesses for their
participation in today's hearing.
I remind Members--there you are, Members--that pursuant to
committee rules you have 10 days--business days--to submit
additional questions for the record to be answered by witnesses
who have appeared. I ask each witness, as I did earlier, to
please respond promptly to any such questions that you may
receive at this time.
The subcommittee is adjourned.
[Whereupon, at 1:19 p.m., the subcommittee adjourned.]
[Material submitted for inclusion in the record follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]