THE ROBINSON REPORT #17: ICPHSO & Changing the CPSC’s Delegation for a Safer Tomorrow!

The International Consumer Product Health & Safety Organization’s (ICPHSO) Annual Meeting and Symposium is this week.  ICPHSO’s theme this year is “The Challenge of Change: Collaborating Today for a Safer Tomorrow.”

Commissioner Ann Marie Buerkle and I are on a panel tomorrow entitled, “Compliance & Enforcement” or “Compliance vs. Enforcement.” During the panel, I will discuss a recent 4-1 vote by the Commission to revise a previous Delegation of Authority to require that proposed voluntary correction action plans (CAPs) for cases in which a death has occurred be approved by the Commission. I initiated this change and I feel it is a necessary step to ensure that the CPSC appropriately addresses hazardous products on the market.

Section 15 of the CPSA (15 U.S.C. § 2064) provides the Commission with authority to take action to protect the public from products which are found to present substantial product hazards and 16 C.F.R. § 1115.20(a)(3) provides the Commission the power to approve, reject, or take any other action necessary to ensure that a proposed voluntary CAP is adequate.

In October 1981, the Commission voted on Order No. 0310.14. This order delegated to the Executive Director the authority to approve voluntary CAPs for products which the staff had preliminarily determined to present substantial product hazards in categories B, C, or D. The Commission retained the authority and responsibility to approve CAPs for “Class A Hazards,” which are those where a “risk of death or grievous injury or illness is likely or very likely, or serious injury or illness is very likely.”

Although there were some “Class A Hazards” that resulted in CAPs during the first 18 years that this delegation was in effect and the Commission voted on those CAPS, since 1999 there has not been a single hazard that staff determined was a “Class A.” The result of this has been that the Commission has not approved any CAP in 17 years even in cases involving very serious hazards. Since voluntary recalls constitute a very large majority of what we do at the CPSC, I regarded this as an abdication of our duties as Presidentially-nominated and Senate-confirmed Commissioners of the CPSC.

After analyzing press releases for CAPs for the last five years and discussing the issue with my fellow Commissioners, I became concerned that some voluntary CAPs, many of which involved the deaths of small children, were simply inadequate. I believe these CAPs would have been stronger had they been submitted to the Commission for approval.

To combat this deficiency in the compliance scheme, I proposed a change to the delegation to ensure that, at a minimum, the Commission would review and ultimately approve, reject, or take other action on those voluntary CAPs for cases where a death has occurred. This objective, bright-line rule will ensure that the Commission has the chance to review these proposed voluntary CAPs regardless of the case’s hazard classification or Fast Track status.

The goal of this change is not to directly affect the preliminary determination of a hazard classification or the negotiation of the voluntary CAP. The goal is merely to add a layer of review to the negotiated voluntary CAP in cases that present the most significant hazards much as we have in place for our civil- penalty settlements..

During my ICPHSO panel, I plan to herald this recent change as a sign of significant progress. The Commission’s action shows a commitment and willingness to effect change for a safer tomorrow, and I feel this fits perfectly with ICPHSO’s chosen theme for this year. I believe that this revised delegation will lead to more appropriate and comprehensive voluntary CAPs and an overall safer marketplace for tomorrow’s consumer.

Looking forward to seeing many of you at ICPHSO this week!

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