Ghost of Christmas Future: Spooking Folks about CPSC and Christmas Lights

Perhaps you've noticed a bit of a contrived controversy out in blogland over the past two months. It seems that a handful of folks are convinced – or, at least, trying to convince others – of two factoids:

• CPSC is coming after Christmas lights and thus Christmas, those Grinches!
• CPSC is imposing new standards despite dramatic improvements in safety, those zealots!

Both are misinformation spawned by click-bait journalism and confirmation-bias advocacy. Both might be the beginnings of an urban legend, but nothing so interesting and entertaining as the one about a CPSC SWAT team. Lower down in a sidebar, I note who has said what, but beyond that, there's little to write about the stories themselves other than that they’re wrong.

What is useful and interesting is a chance to write about a so-far little-used CPSC power created in 2008 by the CPSIA: Section 15(j) of the Consumer Product Safety Act.

The impetus for these bogus claims of some CPSC War on Christmas Lights is the agency's October notice of proposed rulemaking (NPR) under 15(j).

Before getting to 15(j), however, let’s quickly dismiss the first factoid. It's obvious how "decorative lighting" becomes "Christmas lights" in people's minds – both in perception and actual market percentages – but the fact remains that this action is not focused on Christmas lights, much less Christmas. It would apply to all decorative lights. A quick web search demonstrates that the industry is smart enough to market them for all kinds of celebrations, religious and secular. You can get stars and crescents for Ramadan, dreidels for Hanukah, hot peppers for Cinco de Mayo, French flags for Bastille Day, shamrocks for St. Patrick's Day, Jack-o-lanterns for Halloween, and so on. Moreover, consider the proliferation of "twinkle lights" in recent years in places like restaurant patios, front porches, and dorm rooms – strung not for celebration, just ambiance – and it becomes clear that the U.S. decorative lighting market isn't as limited to December as it once was, though still heavily so.

The second factoid is a little more complicated as it involves the general public's ignorance both about CPSC's traditional role in voluntary standards surveillance and about its new-ish 15(j) powers. If folks understand nothing else, they need to know these facts:

CPSC is not seeking to impose new safety requirements on decorative lights.

The three safety standards the agency mentions in the NPR (involving minimum wire size, sufficient strain relief, and overcurrent protection) have been in place since August 2000. That's right, for more than 14 years, companies that manufacture, import, distribute, or sell decorative lighting in the United States have been obliged to ensure the products meet these requirement, which come from UL 588, Seasonal and Holiday Decorative Products.

If not, then recalls could and did ensue. Indeed, my quick and non-thorough search of the CPSC website easily found that there were at least nine recalls between 2000 and 2009 that clearly involved violations of one or more of those requirements. Numerous other recall notices are less clear as they identify hazards rather than defects, but the cited risks – overheating, electrocution, and fire – are associated with the trio of defects. Although I cannot say for sure, I suspect some of those involved at least one of the trio.

For decades, noncompliance with voluntary standards has been among the factors CPSC considers when making determinations about product safety and the need for recalls. It does this via the definition of substantial product hazard at Sections 15(a)(1) and (2) of the Consumer Product Safety Act.

(Of course, some of the recalls might not have invovled CPSC preliminary determinations, occurring under the Fast Track program at the initiation of the companies. But the underlying point is the same: the defects led to recalls.)

CPSC is not doing this despite safety improvements.

In fact, the safety improvements are part of the justification for taking action.

That's counter-intuitive, I know, but it becomes less confusing when you understand what 15(j) is. In a nutshell, it’s a mechanism to allow quick review of a product to make substantial product hazard determinations. For a product to qualify for 15(j) treatment, CPSC must demonstrate two things:

• Safety can be assessed by whether a “readily observable” component or characteristic is present or lacking.
• The characteristic is described in a voluntary standard that (a) already has high compliance and (b) has demonstrated its effectiveness.

Thus – regarding the second set of criteria – CPSC made the odd-seeming effort in its NPR to show how much safety already has improved and how good industry is doing.

Not so incidentally, over the past 25 years, I’ve sat in many CPSC meetings in which industry associations would complain of a small number of bad players who ignore safety requirements and thereby get a competitive edge (lower costs) over the good companies. Go after them and level the playing field, they’d implore CPSC. Very often, CPSCers would nod in sympathy but point to their very-limited resources.

Section 15(j) can give the agency the ability to address a minority of bad players using minimal resources. It also allows it to leverage other agencies' resources. For example, the “readily observable” assessments frequently occur at ports where CPSC and CBP work together.

There might be a controversy, or at least a debate.

Also not so incidentally, it is with the readily observable requirement where any actual controversy might eventually lie. Readily observable is a squishy term, an elastic phrase. Thus, although voting to publish the decorative lighting NPR, Commissioner Ann Marie Buerkle wrote she is concerned that CPSC might be going too far with wire size and strain relief. Both require more action than simple visual inspection to assess, so cannot be done “at a glance,” she explained.

How far does CPSC think it can go with readily observable? Should the definition be limited to “at a glance” or similar actions? Buerkle’s questions potentially set up an interesting and legitimate debate. But she doesn’t question the underlying validity of the trio of defects.

Industry would not be free of these standards even if the 15(j) NPR fails.

The requirements already exist. They will continue to exist regardless of what happens with the NPR. If the commission rejects a defect as being readily observable, that does not forever preclude agency staff from using that defect in safety assessments outside the 15(j) process.

These defects – readily observable or not – are the creation of voluntary standards panels whose members include the top experts in the products and their safety. The results represent a consensus about what it takes to make a product safe (thus the alternate term, consensus standard), and there frequently is effort to balance safety with manufacturing and market realities. CPSC did not simply pull specifications out of a hat.

Important to this idea is the advisement letter that CPSC sent to the decorative lighting industry last summer before the move to create a 15(j) rule. CPSC outlined its view of the three defects and the effectiveness of the standard, writing:

No persuasive reason exists for you to import, manufacture, distribute, or sell seasonal lights and decorative outfits that do not meet the UL standard, especially because you are now on direct notice and have direct knowledge of our safety-related concerns, to the extent you were not directly knowledgeable already.

That notice stood before the 15(j) action and presumably will stand regardless of what happens.

Moreover, the enumeration of defects in a 15(j) rule does not limit the other factors CPSC could consider. It can and will look at anything it deems appropriate for assessing a product's safety.

A 15(j) rule does increase risks for companies.

Although a 15(j) action doesn’t change what industry must do to comply, it does add to how CPSC can snag companies who fail to do so. The potential effects are not small. Crossing a 15(j) rule opens a company to problems like recalls, reporting penalties, import restrictions, and even administrative proceedings.

Indeed, look at the reporting settlements from recent years. A large number of them involve drawstrings on children’s upper outerwear, the subject of a 15(j) rule. Some of those settlements included requirements that the companies – mainly retailers – create CPSC-specified compliance programs.

That point brings me right back to the erroneous stories. They could have explained the true risks to companies. Instead, the authors sought click-throughs and derisive snorts. Too bad.