CPSC members January 11 voted 3-2 on party lines to pass a Section 104 rule for infant slings with one change from the staff proposal. The amendment (passed 4-1) from Chairman Elliot Kaye would change the word staff to The Commission in the following sentence in the briefing package (PSL, 1/2/17): "Staff generally recommends designing the hazard out of a product or guarding the consumer from the hazard, rather than employing warnings, because a warning's effectiveness depends on persuading consumers to alter their behavior to avoid the hazard."
That statement was part of a reply to comments that urged the commission to rely on warnings. Kaye said the change would better emphasize the "safety hierarchy" used by CPSC and other federal agencies: first try to eliminate the hazard, and if not possible, try to guard against it, using warnings only if neither can be done.
Commissioner Joseph Mohorovic – who cast the negative vote against the amendment – asserted that such a statement from technical experts among agency staff would be appropriate, but he worried that it would be "paternalistic" coming from the commission. He raised "consumer choice," "informed decisions," "liberty," and "the nanny state." pointing to hang gliding as an example of allowing consumers to act freely if they are willing to accept risk.
A second amendment (failed 2-3 along party lines) from Commissioner Ann Marie Buerkle would have delayed consideration of the rule for at least a year. Among her reasons was the larger than typical cost that agency staff expects to be borne by small businesses. She asserted it could shutter "dozens if not hundreds" of small, mostly home-based companies. She also reiterated the debate that has occurred since staff proposed the rule in 2014 (PSL, 6/30/14) over whether slings truly meet the intent of durable infant products targeted by Section 104 rules. She also pointed to issues like injury patterns involving caregiver falls versus product failures, minimal problems found in testing by CPSC, and difficulty with destructive testing for handwoven products.
Her impetus was a letter from congressional Republicans sent soon after the November election (PSL, 11/28/16) urging caution in moving forward with "complex, partisan, or otherwise controversial items that the new Congress and new Administration will have an interest in reviewing."
Democrats' disagreement included that Congress was silent in 2011 when amending the CPSIA though aware that the commission at the time was eying slings as durable infant products. They also noted that the rule simply will adopt F2907-15 with one addition involving how warning tags must be attached. Commissioner Marietta Robinson rejected the idea that sling standards rise to being a partisan issue.