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Friday June 04, 2021

Section 6(b): A Threat to Consumer Safety

"Robert S. Adler has served as a Commissioner at the U. S. Consumer Product Safety Commission (CPSC) since August 18, 2009. He was renominated by President Obama on May 14, 2014 and confirmed by the Senate on December 2, 2014. His term runs through October 2021. He was named Acting Chairman of the agency on October 1, 2019" (from his full biography, which is here).


PSL welcomes such opinion pieces. Inclusion is not an indication of agreement or disagreement – simply that the contents likely are of interest to readers.

As someone whose connection with the Consumer Product Safety Commission’s experience interpreting and implementing section 6(b) goes back almost fifty years, I want to respond to my longtime friend Alan Schoem’s recent article in Product Safety Letter regarding this troublesome provision of the law. Mr. Schoem’s basic thesis is that 6(b) is not the “gag order” it is portrayed to be.


I believe 6(b) is worse than a gag order; it’s an unnecessary provision that can be life-threatening.


Briefly summarized, 6(b) requires the Commission to provide not less than 15 days advance notice to manufacturers and private labelers any time the agency plans to disclose information that would enable the public to readily identify one of these companies. This notice provides firms the opportunity to comment on whether the information is fair and accurate. Should a firm comment with objections, the Commission must “take reasonable steps” to determine that the information is fair and accurate. And, should CPSC determine to release safety information, the agency must give the firm no less than five days additional notice in order to permit a legal challenge to releasing the information. The process is not exactly pre-approval, but it too often inches toward it when a company objects to an information release and threatens litigation.


Schoem notes in passing that 6(b) is “unique” to CPSC, but then too quickly changes the subject. Let me stop here and emphasize 6(b)’s “uniqueness.” CPSC is the only agency in the federal government that operates under the kind of restrictions imposed by 6(b). FDA doesn’t, nor does EPA, OSHA, NHTSA or any other safety agency. Nor has anyone ever advanced the slightest scintilla of a persuasive argument for imposing these “unique” burdens on CPSC. In other words, before debating how best to implement 6(b) one needs to understand that there’s no good reason for it even to exist.


I particularly disagree with Schoem’s claim that CPSC would have no problems if only the agency devoted more resources to 6(b), improved its management efficiency, and stopped blaming 6(b). Aside from acknowledging 6(b)’s resource drain on the agency’s budget, Schoem glosses over the fact that information disclosure about products too often takes longer than 15 days even under the best of circumstances, thereby threatening consumer safety. The reason: companies that object to information releases invariably unload a barrage of objections – which 6(b) requires be analyzed and addressed before staff can release safety information. And, this too often leads to a number of back-and-forth negotiations about the content of a release. In these instances, the time period is almost always more than 15 days – sometimes weeks, occasionally months. In that time, hundreds of thousands of dollars of staff resources are needlessly consumed. And, whatever safety information the agency wishes to put out remains hidden from view.


Moreover, Schoem’s claim that an expedited procedure in 6(b) generally solves the delays inherent in this section doesn’t work as he describes. It’s true that the Commission can make a public health and safety finding that permits the agency to shorten the time for issuing a warning and for giving advance notice of the agency’s intention to issue such a warning. But, he ignores the obstacles to quick action. In accordance with the law, a Commission majority must make a formal finding that safety requires a shorter time period for a warning. This requires that staff brief the Commission on the need for shortening the comment period, address the firm’s often voluminous objections to the expedited release, and then have the Commission vote to proceed. And, looming over such a finding is the prospect of a legal challenge, including as to the fairness and/or accuracy of an expedited warning. All of this takes time and consumes precious resources, thereby guaranteeing that expedited warnings will be issued later and far less often than they should be.


Finally, a word about recall notices – often the most frustrating example of 6(b) hamstringing CPSC. Here is where companies typically unleash a barrage of objections, invariably insisting that CPSC withhold information about incidents not directly linked to actual injuries or death even where the risk stems from a faulty design common to all of a product’s models. In other words, “near misses” should be counted as warranty claims, not as safety incidents. Moreover, firms commonly object to any product warning that does not emphasize consumer “misuse” – never mind that the law clearly protects consumers where their failure to follow manufacturers’ often complex instructions is understandable and foreseeable. And, firms too often insist on terms like “serious harm” instead of “amputation” or “breathing difficulty” instead of “suffocation.” Needless to say, these weaker terms convey much less about a product’s actual threat.


But, here’s the excruciating dilemma: given the agency’s need to get warnings out as soon as possible, there is constant pressure on CPSC staff to accept these objections and water down safety warnings or face the prospect of a time-consuming 6(b) legal challenge. Of course, weaker warnings gain less attention, which presents CPSC a heartbreaking choice between safety and timeliness.


No agency should face tradeoffs like this nor should the public’s safety ever be put at such risk.


Section 6(b) is the thumb on the scale that weighs in favor of business and not consumers. Congress can and should vote to repeal 6(b). The nation’s consumers deserve better.