CPSC’s Data Cloaked in Secrecy Hurts More than Just Consumers

Standards development organizations (SDOs) such as ASTM and UL rely heavily on CPSC’s incident data to inform their standards development process. This has, historically, been a symbiotic relationship, as the CPSC would, in turn, rely on the work of SDOs and their volunteer members in crafting effective voluntary consensus safety standards, often much more quickly than the CPSC could do through their rulemaking process.

But that has changed. While the relationship between the CPSC and SDOs was formerly one of collaboration, it has now become marked by contention. Using its own repository of critical incident data, which it points to as a driver for its regulatory rulemaking, CPSC has increasingly dismissed the work of SDOs and insisted that its own views should override those of the experts that develop industry standards.

Standards that are developed by SDOs are the result of the input and efforts of a wide range of stakeholders and independent experts and are vetted through a rigorous consensus process to ensure the final product addresses needs and hazards. It’s an open, transparent, and agile process that allows for innovation in product design while requiring that safety is built into those designs.

By statute, the CPSC may set a mandatory regulation when it determines that compliance with a voluntary standard would not eliminate or adequately reduce the risk of injury, or when it finds that substantial compliance with a voluntary standard is unlikely.

Recently, the CPSC has taken on a new, aggressive posture in rulemaking, claiming that the rules that it develops are “more protective” than the corresponding industry standard. And since a federal regulation supplants a corresponding voluntary standard, it makes the voluntary standard irrelevant and has wasted countless hours of time spent on developing a standard that may never see the light of day.

SDOs typically request CPSC’s data to identify and address potential hazard patterns associated with the products that are covered by their existing or proposed standards. The organizations wait for many months to receive a smattering of data that is cherry picked by CPSC staff after being cleared for release. Meanwhile, the standards development process gets delayed, and more potentially unsafe products are manufactured. When the SDOs eventually receive the data, they find it heavily redacted, stripped of information that would identify the brand and model of the specific product involved and other details that could help inform the standards development process.

That lack of transparency has been the source of much frustration and head scratching among SDOs. It’s well accepted that data-driven decision making is the gold standard in safety work, and the CPSC’s secrecy is undermining that proven process. Even more frustrating is that this lack of transparency with incident data slows or prevents development of a consensus standard, which then is cited by CPSC as a reason that they need to move forward with a mandatory regulation—truly a circular argument.

The CPSC often claims that certain data cannot be released because of Section 6(b) protections included in the Consumer Product Safety Act. The 6(b) provision requires the CPSC to consult with manufacturers before sharing details about specific products, even if the regulators deem the items so hazardous that the agency is pursuing a recall. Section 6(b) has long been criticized for hiding information about unsafe products from consumers.

But Section 6(b) isn’t the only reason that the CPSC shields data. As a matter of internal policies, some CPSC data is not shared even in a redacted format if the subject products are being investigated or if a potential rulemaking is in progress. Additionally, the CPSC’s “data pulls” do not include incident data collected from and shared with the CPSC by retailers. That gaping hole in the data and lack of transparency hobbles the voluntary standards development process and allows the CPSC to hold all the cards in determining hazardous product designs, while SDOs get half a deck.

Like other government safety agencies, the CPSC should make their incident data accessible, transparent, and timely. Safety information cloaked in secrecy doesn’t hurt just consumers; it also hurts manufacturers aiming to design—and retailers aiming to sell—safer products. Manufacturers learn from the mistakes of others, and responsible retailers need to know the facts before they put an item up for sale. Data hidden behind the CPSC’s walls prevents that learning process. So while some industry pundits and trade organizations argue against repeal of CPSC’s data restrictions, they are doing a disservice to manufacturers and retailers who strive to do the right thing and put the safest products possible into the hands of consumers. In short, good standards depend on good data, and CPSC too often cloaks that data in secrecy.