Kaye Stresses Results-Based Approach

Recently sworn-in CPSC Chairman Elliot Kaye August 13 told reporters assembled in his Bethesda, Md. office that he doesn’t like the “paradigm of winners and losers” when it comes to product safety. Rather, he said he wants to take a results-based approach to dealing with regulated companies. He emphasized that it can be important to go onto “manufacturers’ turf” if need be to have open discussions about what can be done to address problems. That approach typically is “more fruitful than sitting in Bethesda, issuing regulation.” CPSC has regulatory tools and will use them if need be, he noted, but his inclination is to work with industry first.

On CPSC’s sometimes rocky relationships with industry in the recent past, he asserted, “The idea of someone hearing something [about agency plans] and festering makes no sense.” He stressed a commitment to open dialog, urging, “Call me directly if there are any concerns.” The caller might not like what he has to say, but the information would “not be filtered through someone else.” It’s important, he noted, “to build a sense that there is fair dealing on both sides.”

Other topics included:

• Window Blinds: Kaye said he has a “hard time accepting” that roughly one child a month “hangs to death” on window cords. He pointed to a recent child’s death in nearby North Bethesda as illustrative of the problem. The mother, he explained, had arranged the child’s nursery with the hazard in mind, including keeping the bed and other furniture away from the cords. Nonetheless, the incident still happened. He stressed the importance of CPSC currently being “actively engaged with manufacturers” and said that even if he is chairman only two years (referring to the coming presidential change in 2017), he is aiming for “meaningful progress” on the issue.

   

• ROVs: He said he took concerns voiced by Senators at his April confirmation hearing (PSL, 4/14/14) about CPSC’s long-pending rulemaking to mean “make a decision and move on.” He said that while CPSC’s ongoing work with industry and on voluntary standards is important, he is eager to get the NPR published and expects it in Fiscal 2015, which begins October 1.

   

• Sports Brain Injuries: He had spearheaded CPSC’s efforts during his time as a staffer, and he praised the movement by stakeholders towards a cultural, generational shift that he likened to recycling. When he was a youth, he said, “Recycling didn’t exist as a concept.” But now, he quipped, “If I threw out a plastic water bottle, my 9-year-old probably would call the police on me.” He said that he has seen an “amazing hunger in parents” to address the problem so their children can play sports but still be safe. He said CPSC didn’t create all the initiatives in the area, but rather tapped into an existing desire and accelerated the activity.

   

  Two areas were especially fruitful. First was the work with the NFL and MLB, which he said he wants expanded to other major professional sports. Although CPSC does not have jurisdiction over professional helmets, the leagues offer a great opportunity to create good messaging that can create cultural changes, and he has found them willing to help if told what they need to do. The other was CPSC’s work with the NFL to fund replacement helmets for youth leagues, especially in economically disadvantaged areas. The helmets were the hook that attracted those organizations, providing opportunity to “brainwash on brain safety.” He especially praised USA Football’s Heads Up safety program, which he said has incorporated CPSC’s educational materials and ideas but has “gone further than we could hope.”

   

• Phthalates: On the calls by three House members (PSL, 8/11/14) for CPSC to speed up its coming draft rulemaking on phthalates, he noted there are other suggestions from the Hill that CPSC not do so. He said only that staff will fulfill the statutory obligation under the CPSIA to issue a proposal within 180 days of the CHAP’s report (PSL, 7/28/14). On feedback about the pending rulemaking, he noted that the key players “are not shy” and that he expected CPSC to hear plenty both from people reaching out as they have been all along as well as in the official comments to the NPR.

   

• Recall Effectiveness: He responded to a question about this perennial problem by acknowledging that some recalls are more important than others because they involve worse hazards. He suggested it might be worthwhile for CPSC staff to look into its post-recall activities, with certain recalls meriting continued attention rather than moving onto the next one. He further noted the value of staff engaging with similar agencies about their ideas, and he emphasized the importance to reaching out to the private sector. “If you want to solve a problem,” he noted, “there’s probably somebody out there working on it.” He also acknowledged that the pertinent goal is getting consumers to stop using products, not the measurements, which can miss things like people discarding items.

   

• Binding Corrective Action Plans (CAPs): He said he is curious to see what staff comes up with on the idea of making CAPs legally binding, but he stressed that he sees safety as the deciding factor. “What’s the safety problem” that a rule is intended to address, he asked. “If someone cannot articulate that, then I’m likely to want to move onto something else.” The proposal, in the in-the-works voluntary recalls interpretive rule (PSL, 2/10/14), has garnered much criticism, including from ex-Chairman Ann Brown (PSL, 6/19/14), who suggested it might endanger the fast-track recall program begun under her leadership.

   

• Can’t-Do List: Kaye gave a philosophical answer to a question from PSL about his top priorities that fall below the can/can’t do line created by the agency’s resource constraints. There have been changing expectations about what CPSC should do, he explained. The emphasis used to be on acute hazards like faulty wiring in small appliances or small parts in toys, but there has been a shift – “heavily influenced by the CPSIA” – for it to focus on chronic elemental or chemical hazards. CPSC is not set up to do that task robustly: “We have not been given the resources or authority to address the issues the way consumers want us to,” he explained. There is a “vacuum” at the federal level with piecemeal attention based on various agencies’ authorities, he said, giving examples of attention by FAA or NHTSA to flame retardants in airplane or motor vehicle seat cushions. The solution might involve the long-pending reform of the Toxic Substances Control Act (TSCA), he suggested.

   

  Government needs to go beyond the “priority chemicals” approach, he suggested. While he acknowledged the importance of telling people what chemicals are hazardous and should not be in products, he pointed to a need also to figure out what is safe to use and wondered if there is a role there for the federal government to work with industry to identify safe replacement substances.

   

• Recall Administrative Complaints: He said he was not involved as a staffer in the discussions about the agency’s lawsuits seeking to force recalls, especially the amended Buckyballs complaint. On whether such actions could continue in the future, he noted that four new commissioners (he, Ann Marie Buerkle, Joe Mohorovic, and Marietta Robinson) have come on board since the initiation of those cases, so the current commission’s “comfort level” with such actions “remains to be seen.” On the other hand, he emphasized that taking such action is one granted by Congress, so it’s always an option case-by-case.

   

• Magnets: CPSC’s 2012 rulemaking (PSL, 8/13/12) for a performance standard for sets of small rare-earth magnets is continuing as planned despite suggestions the action should await the resolution of its final administrative complaint against a manufacture. The briefing package with a draft final rule is expected soon (PSL, 6/12/14).

   

• CPSC Advisory Councils: Kaye said having a panel of stakeholder experts who give CPSC input on possible rulemakings would be cumbersome to set up, and the time needed to do so might create missed opportunities for feedback. Further, he stressed, “We are open; we do listen.” He pointed to the 1110 rule on certificates of compliance as illustrative. Industry, he noted, kept telling the agency, “You need to listen to us more.” It did so and “stopped in its tracks,” setting up the September 18 workshop (PSL, 6/30/14) to seek more information about certain potential challenges with the pending requirements.

   

• Imports: CPSC’s focus includes both a February Executive Order on streamlining export/import as well as its own import pilot program. It is not bound by the former as an independent agency, but it is the part of the Border Interagency Executive Council, which is operating under the order. Meanwhile, CPSC earlier this year sought money and congressional authority (PSL, 3/10/14) to scale-up the latter, known as the risk assessment methodology (RAM). If it gets those, it would have the ability to charge user fees, which Elliot said would be budget neutral, simply paying for the cost of processing companies. He further said that CPSC’s port activity needs to include more lab staff to ensure it is processing sample quickly and not holding up trade. If CPSC doesn’t get the funding and authority, it would continue at its current level, but he warned that it would not be as effective. He also warned about potential lost opportunities for industry to include CPSC activity in a “single window” stop for processing imports.

   

• Emerging Hazards: Some are tougher to address than others, he said, comparing window blind cords to tipping furniture. The former is simpler as it should involve a design fix that is integral to new products, although he noted there also still would be years of education to addressed units already installed in homes. The latter is more complex. Solutions like straps involve secondary product that require education about the value of installing them. Further, it is difficult to design-out the hazard without making oddly-shaped furniture (like larger at the bottom and narrowing at the top). Moreover, most incidents involve TVs placed atop items, meaning the hazard often includes two products not designed in conjunction with each other. Thus any solution is farther off than with window cords. He noted that Mohorovic and Robinson both have identified tipping hazards among their priorities and that he would be encouraging their efforts.

   

• Retailer Reporting: Suggestions (PSL, 2/3/14) for updating and expanding the program have merit, he suggested, but emphasized that what’s important to CPSC is whether the resulting data are useful and if the program is the best way to get them. Also important, he noted, is ensuring that companies understand that participation is not in lieu of their normal Section 15 reporting duties. He said he is curious to see what suggestions staff comes up with, but noted there is not a set timeframe for that activity as it is one of those that falls below the can’t-do line created by resource limits.

   

• Mandated Compliance Programs: Kaye explained that his primary reaction to the topic is to wonder why companies wouldn’t have them in the first place. He acknowledged that he understands that firms wouldn’t want “20-point plans” that dictate steps that do not apply to them (like reports to boards of directors for small firms that don’t have boards), but countered that CPSC is not doing that. Rather, it is setting up high level plans with broad requirements. He also pointed out that rather than “breaking new ground,” CPSC is “playing catchup.” For example, FDA has long imposed corporate integrity agreements (CIAs) on pharmaceutical and medical device companies as parts of settlements. In any event, he said the option should be a tool on the table in negotiations and applied case-by-case as appropriate. CPSC in recent years has been including the programs in settlements, and their potential in CAPs is part of the draft voluntary recalls interpretive rule.

   

• New Commission: He emphasized the good working relationships so far. There will be 3-2 votes, he said, but there is a sense of civility and collaborative spirit. Those good attributes extend to commission staffers, who, he said, can cause problems just as much as commissioners themselves can.

   

• His Staff: He expects to have them in place in the early fall. His biggest challenge is with his executive director, a position he held as a commission staffer. That person is a “mini-commissioner,” he explained, who needs to be able to inspire agency staff as well as “connect regulatory dots.” That work requires a deeper, broader skill set than do other positions.

Kaye became chairman July 31 (PSL, 8/11/14). The other publications present at the discussion were Law360 and Product Safety & Liability Reporter.