INDIANAPOLIS – One year after Congress introduced the “Sunshine in Product Safety Act,” CBS4 is asking where the discussion stands and what lawmakers are doing to give the Consumer Product Safety Commission more authority.
The Sunshine in Product Safety Act, sponsored by Senator Richard Blumenthal (D-CT), would repeal a statute that restricts the CPSC from notifying the public about hazardous products. “Section 6(b),” as it is referred to, prohibits the CPSC from disclosing information about products that identifies the manufacturer unless the commission has taken “reasonable steps” to ensure the information is accurate and fair.
Each manufacturer has an opportunity to comment. During that time, the CPSC cannot disclose any information, even if there are safety risks reported, for 15 days. Depending on the claims, manufacturers will often agree to a voluntary recall. But sometimes, the company refutes the allegations. In those instances, CPSC has to take the manufacturer to court and present their concerns in front of a judge.
“If a company doesn’t agree with a recall, we do have the authority to take legal action,” CPSC Spokesperson Pamela Springs said. “It could take years.”
There are several examples where the CPSC was forced into silence regarding dangerous products. One many people are familiar with were the Fisher-Price Rock and Play sleepers.
The company started selling the devices in 2009. By 2012, the federal government acknowledged it had received reports about infant deaths. The product, though, was not recalled until 2019. By then, dozens of infants had died. Reports show the company had generated $200 million in revenue.
“And when the recall was finally done…CPSC doesn’t require a lot in recalls…so we know many of these are still in homes,” Nancy Cowles, the executive director for Kids in Danger, said.
Kids in Danger is a nonprofit organization that fights for consumer safety. The Keysar family founded it in 1998 after their 16-month-old died. A portable crib that had been recalled five years prior collapsed around his neck. The family said they were never notified of the recall, their caregiver or a state inspector who had visited the home eight days before the little boy died.
What we know about the Consumer Product Safety Commission
Congress established the CPSC in 1972. It was considered an independent federal agency and it was tasked with protecting consumers. At the time, it was assigned to oversee 15,000 products that weren’t regulated by the Food and Drug Administration or the National Highway Traffic Safety Administration.
In 1981, though, congress amended Section 6(b), which gave manufacturers a “veto” option and in turn, limited the CPSC’s authority.
Experts believe the law has applied solely to the CPSC because of its setup. Unlike the Food and Drug Administration or the National Highway Traffic Safety Administration – which are also tasked with protecting the public, the CPSC is run by five commissioners instead of a single director who would be empowered to make key decisions.
“When you need to make tough decisions, sometimes you have to be structured that way,” George Ball, associate professor of operations and decision technologies and Weimer Faculty Fellow at the IU Kelley School of Business, told CBS4. “The commission approach doesn’t help. It is almost like if someone wanted to set up a regulatory agency to do everything wrong.”
Ball used to work in the medical device industry. He left and during his time at Indiana University, has done extensive research on product recall causes and effects from the recall and decision-making processes. He confirms the CPSC has issued very few mandated recalls in the last two decades.
“It’s the percentage of less than one,” he nodded.
“How concerning is that to you?” CBS4 asked.
“If the firms were trusted to take action at the right time, it wouldn’t be a concern at all. In some respects, we would hope that there shouldn’t be the need for mandated recalls. But the research we do shows there are so many biases that go into when to make the decision. It’s not just if, but when, is a big part of it,” said Ball.
Ball said he has seen the decision-making first-hand. He recalls sitting in meetings where CEOs and boards debated whether to voluntarily recall a product, how to go about it and how aggressively they should act.
“The consumer is going to be sitting at home and saying, ‘you’re really weighing profit with people’s lives in some cases,’ Anchor Angela Brauer said. “How could a business possibly choose profit over someone’s life?”
“If a manager has to face profits versus safety, there are many instances where they might make the wrong call,” Ball admitted. “With the incentives set up wrong, they’ll probably choose profits at least as often as safety. When you incent someone for millions of dollars of stock options and you tell them there’s a 10 percent chance that it’s just the right situation, someone might be hurt from this product, you and I might roll the dice as well. Human behavior is such that we are susceptible to those kinds of biases. That’s the benefit of a regulator to step in and say it’s time to act, even if you don’t want to.”
Ball also pointed to something the CPSC refers to as “the fast-track recall system.”
“There’s a really interesting phrase in there that says that basically, they won’t classify the recall’s severity if you use the fast-track recall system. So, if I’m a manager and I read that handbook, I’m going to do that every time! Because if you classify my recall as highly severe, that’s going to get in the media. That’s going to affect my stock price. That’s going to affect my stock options. So, I’m going to use this fast-track recall system every time,” Ball said.
Records show the CPSC also operates on a fraction of the budget the FDA and NHTSA do.
“The budgets are dramatically different,” Ball agreed. They’re not well funded.”
Data shows the FDA works under a $6 billion budget per year. It has issued 11,887 recalls since 2018. NHTSA works with a $1 billion budget annually. It has issued 4,480 recalls since 2018. Lastly, the CPSC operates under a $135 million budget per year. CBS4 found it has only issued 1,125 recalls since 2018. Again, most of those recalls happened because the company agreed to take action.
“What is the solution here?” Brauer asked each expert.
“Section 6(b) needs to be repealed. It simply hamstrings the agency to be able to take action. They spend a lot of time and energy trying to cajole companies into letting them tell people about a safety hazard when if they could just use their own scientists their own decision about what is wrong with a product to tell the public about it or recall it more easily on their own, I think consumers would be safer,” Cowles said.
Ball suggested increasing the CPSC’s budget and changing the commissioner’s approach.
“Model it after the FDA so that there’s one person who has the authority to make these decisions, give them more authority to mandate, and then they need to actually use that authority. As soon as companies see that there’s teeth behind the law, things will change quickly,” he said.
What consumers should do to protect themselves
“In the absence of policy changes, be an informed consumer. Find out where you can look at these complaints online. You can go to the CPSC website and read all the complaints. Understand where you’re buying goods, especially if you have young children that could be at risk of a product,” Ball suggested.
Cowles warned there are products on store shelves the CPSC knows are unsafe but haven’t been able to tell the public about. She, too, urges families to look up product complaints and recalls. She said parents should also submit complaints if they experience any problems.
“If you have a problem with a highchair, the leg falls off it tips over, the child can get out of the restraints, report that to SaferProducts.gov, which is their consumer database,” Cowles said.
CBS4 visited SaferProducts.gov and downloaded a list of 50,650 complaints dating back to 2011. Keep in mind, this list does not include complaints that were submitted to the manufacturer directly.
This list details the recalls CPSC and companies have issued since 1973. Customers were and are able to get a refund, repair or replacement, depending on the product.
Calls for change
The CPSC has long known about its lack of authority. In 2014, Commissioner and former Acting Chair of the agency, Robert S. Adler, called for Section 6(b) to be repealed.
“I have never hidden my dislike for section 6(b) of the CPSA. I have long believed it inappropriately puts the agency in the role of a national data nanny of vital consumer product safety information.
Section 6(b)’s cumbersome procedures and unnecessary delays put consumers’ lives and limbs at risk by requiring the CPSC to restrict the flow of critical safety information to the public. The commission, unlike any of our sister agencies, must spend hundreds of thousands of dollars a year following wasteful 6(b) procedures.”Robert S. Adler
In 2021, 24 consumer rights groups including Kids in Danger, the National Retail Federation and the Consumer Federation of America, sent a letter to the Committee of Appropriations calling for the CPSC to get more funding.
In 2022, Kids in Danger and the Consumer Federation of America sent a letter directly to Majority Whip Dick Durbin (D-Ill) calling for a $350 million budget “so the agency can adequately protect our families.”
CBS4 reached out to several lawmakers including Durbin and the sponsor and cosponsor of the Sunshine in Product Safety Act but did not hear back by deadline.
Pamela Springs, a spokesperson for the CPSC, admits the agency would like the ability to notify customers as soon as they heard about a hazard.
“Certainly, we would like to have the ability like other safety agencies to notify consumers as soon as we hear about a hazard but until that day, we will do whatever we can with the authority that we do have to alert consumers,” Springs said.