By Colleen Kave, J.D.
Dissenting opinion vigorously opposes agency’s decision to bypass CPSIA mandate.
Last week, the Consumer Product Safety Commission (CPSC) voted 3-2 to approve the issuance of a statement of policy announcing that, for household refrigerators that bear a safety certification mark indicating compliance with the Underwriters Laboratory’s (UL) voluntary standard, CPSC will not enforce the Consumer Product Safety Improvement Act’s (CPSIA) plain language requirement that every manufacturer issue and provide a General Certificate of Compliance (GCC). In response to this action, Commissioners Elliot F. Kaye and Robert S. Adler published a joint dissent outlining their reasons for voting against the statement of policy. According to Kaye and Adler, CPSC’s direct contradiction of a statutory mandate sets a troubling precedent that compromises safety and fails to provide an appreciable benefit to manufacturers.
Legislative background. The Refrigerator Safety Act (RSA) was enacted in 1956 in response to a number of tragic deaths across the country where young children crawled into a refrigerator—often an abandoned one—and suffocated when the refrigerator door closed on the unit. To save lives, Congress directed manufacturers to meet a standard that enabled refrigerators to be easily opened from the inside.
In 2008, Congress enacted the CPSIA, which, among other things, requires every manufacturer of a product subject to a consumer product safety rule under any and all of the acts enforced by CPSC to issue a GCC certifying, based on a test of each product or a reasonable testing program, that its product meets applicable safety requirements. A reasonable testing program requires each manufacturer to have a high degree of assurance that its product complies with the applicable consumer product safety standard. This provision of the CPSIA applies to manufacturers subject to the RSA and to the regulations under the Consumer Product Safety Act enforced by CPSC.
However, in June 2017, CPSC issued a Federal Register notice seeking suggestions from stakeholders on ways to reduce regulatory burdens. In response, the Association of Home Appliance Manufacturers (AHAM) requested that the agency issue a statement of enforcement discretion indicating that CPSC would not enforce the GCC requirements for household refrigerators if the product complied with the requirements of the RSA and if the product displayed a safety certification mark indicating compliance with the UL standard for refrigerators, UL 60335-2-24.
After review, CPSC staff recommended that the agency approve AHAM’s request based on an assessment that all refrigerators on the market comply with UL’s standard, and that a UL certificate will provide sufficient evidence that any refrigerator bearing the certificate meets CPSC’s refrigerator safety requirements.
Dissent of Kaye and Adler. While Commissioners Kaye and Adler asserted that they support burden reduction measures generally, when they can be done without sacrificing safety, they stated that they could not justify exercising enforcement discretion in this instance. First and foremost, the Commissioners explained that this enforcement discretion policy contradicts Congress’s clear direction, in the 2008 CPSIA, to CPSC that it wanted greater assurance of industry compliance with CPSC rules. In addition to requiring manufacturers of children’s products to undertake independent third party testing of these products and certification of their compliance, Congress specifically extended the requirement for GCCs based on reasonable testing programs for all products, including refrigerators, subject to agency rules. Kaye and Adler interpreted this statutory language as pointing to greater enforcement, not less.
To support their position, the Commissioners compared the information required to be included in GCCs with the information listed on UL certification marks. The data required on a UL certification is substantially less than that required for a GCC. Of the seven separate items legally required for a GCC, only four of them are listed on a UL certificate. The Commissioners noted that the missing pieces of information can be obtained through follow-up action by CPSC enforcement staff, but such action would cost the agency both time and money.
Second, having reviewed CPSC staff’s analysis of the costs associated with complying with the GCC requirements, the Commissioners concluded that the industry would not experience any significant savings from the agency’s stopping its enforcement of the requirements. Based on estimates, the cost of issuing and distributing a GCC per model is between $50-$100, an amount the Commissioners described as "stunningly minor" and "chump change" in light of the revenues earned by large manufacturers. Kaye and Adler asserted that they could not justify dropping CPSC’s enforcement authority over such minimal benefits.
Finally, the Commissioners took issue with the process behind this action. Because CPSC has not requested public comment on the proposal not to enforce the GCC requirement for household refrigerators, Kaye and Adler found the process for this action "murky." According to the Commissioners, AHAM members might be aware of the agency’s consideration of this request, but most members of the public will not become aware of it until after implementation of the policy. The Commissioners did not find that approach consistent with CPSC’s otherwise strong support of transparency in its actions.
MainStory: TopStory CPSCNews HouseholdProductsNews
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