Committee Decision on Baiocco Nomination Set for November 8

Dana Baiocco's nomination to join CPSC is slated to get a vote in the Senate Commerce Committee at that panel's November 8 markup session. This follows her November 1 hearing at which she told senators that her priorities would include emerging technology.

She explained, "We need to understand the data, science, and process underlying a product to stay abreast of marketplace dynamics, changing consumer preferences, and to maintain vigilance over emerging hazards." She said she would favor her "philosophy of seeing, touching, and learning the products to…stay well informed."

However, she also asserted the concept of consumer choice as an aspect of product safety, saying, "We are all very different people and our choices and interests are many."

Additionally, Baiocco, expressed interest in recall effectiveness, telling the panel (bit.ly/2A7lzWT), "I look forward to contributing my own ideas to make sure consumers are being reached across a variety of platforms." She comes from Jones Day law firm, where her practice included advising on CPSC matters like reporting and recalls (PSL, 9/25/17).

At the hearing, Baiocco received little attention and few questions (although she will field written queries too). Most focus was on the NASA nominee Rep. Jim Bridenstine (R-Okla.), especially his views on climate change and LGBT issues as well as his political statements and legislative activity. Nonetheless, a few Senators turned their focus to her.

Sen. Dick Blumenthal (D-Conn.) urged Baiocco to recuse herself permanently from matters on Mattel, Yamaha, and RJ Reynolds, which she has represented. She rejected the blanket approach, saying she would assess each matter as it arose to decide if it merited stepping back. She asserted that her work for Mattel was narrow, and she suggested that RJ Reynolds would not be an issue as CPSC does not have jurisdiction over tobacco.

Blumenthal countered that flame retardants (PSL, 9/25/17) matter to the latter company (as an alternative to reduced ignition propensity cigarettes) as do electronic cigarettes and liquid nicotine (PSL, 8/1/16). The two had a brief exchange with her asserting that the public deserves five fully-active commissioners and him countering that it deserves commissioners free of conflicts.

Prior to the hearing, other media outlets released stories suggesting she has conflicts of interest related to previous work with industry on CPSC matters as well as work of her husband. She has sent a letter (bit.ly/2A6rBGY) to CPSC addressing conflicts and on refraining from some activities related to her work, her husband's, and Jones Day clients.

Sen. Jerry Moran (R-Kan.) asked her about recall effectiveness (PSL, 7/31/17). Her answer included that "we still don't have a handle on" why consumer don't respond, and that the gap needs to be addressed. She also raised as an example "that comes to mind" that CPSC could do better at "not getting bogged down into the written message" in recall negotiations.

His questions also elicited her responses about the statutory preference of voluntary over mandatory recalls and that data "must drive" commission decisions.

She additionally responded to a question from Sen. Catherine Cortez Masto (D-Nev.) about the Internet of Things:

"I don't know if we're prepared for those things…It seems like every time you look at a product on the market, it's new, it's faster, it's doing things we don't understand on day-to-day basis. So I think that we are going to have to, as an agency, make sure that we are working with staff, make sure they are getting ahead of the curve in understanding these products, how they work, and how they interact with each other. I think those are things we haven't looked at close enough as a society. But as far as the agency goes – of course, I'm not inside yet, so I can't comment on what they may or may not have done. – but I think that one of the things that if confirmed, once I get there, that is something we need to move a little quickly on."

Committee Chairman Sen. John Thune (R-S.D.) asked if she would avoid partisanship he said has "plagued" CPSC. She responded with praise of teamwork, adding, "Everyone has a perspective, and it needs to be heard." She also addressed the issue in her prepared remarks, where she wrote, "I will work in a collaborative way with my fellow Commissioners and with this Committee because collaboration matters. Safety and protection of the American people are not partisan issues. They are all inclusive."

Thune noted that Acting Chairman Ann Marie Buerkle, "lacks a working majority," so he urged full-Senate speed on Baicco as well on Buerkle' two nominations to become chairman and to get another seven-year term (PSL, 10/9/17).

Baicco's arrival would create a 2-2 tie due to the recent departure of ex-Commissioner Joseph Mohorovic (PSL, 10/23/17). She would replace Commissioner Marietta Robinson, whose term is ending. Mohorovic's replacement is unannounced. That person would create a 3-2 Republican majority on the commission.