CPSC Expected to Shift to Republicans in October

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By Martina Barash

Dec. 8 — The Consumer Product Safety Commission is expected to shift to the Republicans, but not until late 2017.

Current chairman Elliot Kaye says he will remain as a commissioner, according to CPSC spokesman Scott Wolfson. That means he and the other two Democrats on the five-member commission will remain in the majority until the first vacancy arises in October 2017.

Then, control of the agency is expected to flip to the Republicans when President Donald Trump appoints a new commissioner to replace outgoing Commissioner Marietta Robinson, a Democrat. Trump also would designate the new chairman.

Kaye could, but doesn't have to, relinquish the chairmanship before the Republicans gain the majority in October.

Wolfson said Kaye hasn't yet decided whether he'll step down as chairman.

But some precedent exists for CPSC chairmen to give up their posts after a change in the party that controls the White House.

Former Commissioner Nancy Nord (R), who served as acting chairman from 2006 to 2009, stepped down from that post early to clear the way for President Barack Obama's nominee for the chairmanship, Inez Tenenbaum (D), in May 2009.

Despite the likelihood of these significant changes toward the end of 2017, some business and consumer stakeholders don't see other big shifts, at least on the near horizon.

“Given the insulated nature of the CPSC as an independent agency, we wouldn’t expect any dramatic changes the next calendar year at least,” Andy Counts, CEO of the American Home Furnishings Alliance, told Bloomberg BNA.

“We’re expecting business as usual with the current commission makeup,” he said.

The American Home Furnishings Alliance, based in High Point, N.C., is made up of furniture makers and others who must comply with a variety of consumer safety standards. Its members are facing high-profile agency action on tip-overs and flammability.

Rachel Weintraub, legislative director and general counsel at the safety group Consumer Federation of America in Washington, projected optimism that, no matter who's in control of the agency, the CPSC's commitment to safety will continue.

“Overall, we would hope that product safety is a nonpartisan issue, that protecting children and consumers from hazards in the marketplace is one that would be prioritized no matter who leads the agency,” Weintraub told Bloomberg BNA.

“And also it’s important to note the CPSIA passed when President Bush was in office,” Weintraub said, referring to the Consumer Product Safety Improvement Act, which gave the agency additional safety mandates and tools, with a particular focus on products geared toward children.

“There is certainly precedent for taking strong action to protect safety in both Democratic and Republican administrations and we’d hope that would remain the case,” she said.

As for particular issues before the agency, industry-opposed changes to disclosure and voluntary-recall rules are expected to remain on the back burner.

Work on two furniture safety standards—one for dressers and other items that can tip over, another for flame-retardant materials, including those in couches—is expected to continue, but some of it may be at the voluntary-compliance level.

William Wallace, a policy analyst at the Washington office of Consumers Union, another safety group, declined to comment, and Nancy Cowles, executive director of Kids in Danger, in Chicago, couldn’t be reached.

Another industry group whose members must comply with a number of CPSC standards, the Toy Industry Association, based in Washington, was also tight-lipped, saying no one there was available to speak about the transition.

Safety: An American Advantage

Charles A. Samuels, an attorney with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. in Washington, who has a regulatory and legislative practice, argued for stability at the agency regardless of whether Republicans or Democrats are at the helm.

It would be a “big mistake”—with consequences for consumers and for businesses—if the CPSC were to be “dismantled or eviscerated,” he said.

“I am concerned that overreaching could lead to overreaction,” he said.

“American businesses have literally put millions, maybe billions of dollars into safety in the last decade. Do we really want it undermined by cheap imports with no cop on the beat?”

Both Samuels and Counts said they view the CPSC as something of a bulwark against state-by-state regulation or legislation.

But Samuels sees room for the agency to be “re-oriented” under a new administration, for example with new leadership and legislation. He wouldn’t be surprised to see “some changes from a business point of view,” he said.

Counts said the agency’s funding isn't a target, to his knowledge.

“I haven’t heard, in talk with industry groups, of any rumblings about trying to tamp down on funding, and that certainly wouldn’t be on our agenda,” he said. “So I don’t think that’s something the CPSC needs to concern itself with at this point.”

Disclosure, Recall Rules Stilled

Samuels said any movement on actions in the 2017 Operating Plan strongly opposed by industry is unlikely.

These include revisions to the so-called 6(b) rule addressing confidentiality issues, and the separate rule governing voluntary recalls.

Pursuing those rulemakings would lead to bad blood and possible reversal, he said.

The proposal to change the rule governing voluntary recalls drew opposition from businesses because it would make the recall agreements that product makers and others negotiate with the agency legally binding, among other issues.

And changes to the disclosure rule would ease the processes by which the agency implements a confidentiality provision in Section 6(b) of the Consumer Product Safety Act. The provision limits what the agency can reveal about specific product makers, such as whether investigations are underway.

But Wolfson said staff hasn’t taken up work on either of those rules recently, anyway. “At the staff level, it continues to be where it was previously. Staff is not currently working on either of those rules.”

“There have been public discussions of them among the chairman and the commissioners,” Wolfson said, referring at least to an Aug. 31 CPSC meeting.

At that meeting, Commissioner Robert Adler, a Democrat, startled his fellow panel members by expressing a willingness to compromise with Republican commissioners on changes to the regulations.

“I can circulate a proposal within weeks,” Adler said at the time. But there have not been any developments since then on a compromise, Wolfson said.

Wolfson said he would be involved at the staff level because he had authored the lead memo for the voluntary recall revisions. “And I can share with you that I and my colleagues have not worked on that rulemaking in quite a while,” he said.

Furniture Issues: Tipping, Flammability

The furniture industry is facing somewhat controversial CPSC measures in two areas: tip-overs, which pose a serious hazard to children, and the flammability standard, which has prompted concerns about long-term exposure to flame-retardant chemicals.

The commissioners included an early step in rulemaking on a mandatory standard to prevent furniture tip-overs as part of the FY 2017 Operating Plan, following an October CPSC report saying the current voluntary standards were inadequate and compliance with them was low.

The home furnishings trade group defended the existing voluntary standards at the time the report came out.

Furniture makers and the CPSC are now focusing on updating the voluntary industry standards, according to Counts. “We’re working very closely with CPSC staff on the furniture tip-over issue at the voluntary standards level,” Counts said.

The industry is “hoping we can address some of the concerns that were brought up in their recent briefing package,” he said. “I think you’ll see some changes there at the ASTM level in early 2017. So I’m not sure they’ll pursue any type of formal rulemaking, as a result of those efforts.”

Issues with moving away from chemicals while protecting consumers from fire dangers are more technical.

Some commissioners, including Kaye, want to eliminate flame-retardant chemicals. A California standard focuses on smoldering ignition and can be met without chemical use, Counts said.

But CPSC staff members don’t agree that the agency should adopt the California standard, because they’re concerned about open-flame ignition, according to Counts.

“We’ve certainly worked with different administrations over the years and commissioners come and go,” as do chairmen, Counts said. “We just think it’s important as an industry to get out in front of any safety issues.”

“Again, we’d like to primarily focus at the voluntary standard level, but there may be opportunities to get something mandated nationally that would eliminate state-by-state regulations,” he said. “And I think that’s somewhat of a concern on the flammability side as we see some states looking at the issue independently.”

“So we’re going to work with whatever commissioners are in place and hopefully have some positive impacts on the industry and our customers,” he said.

Weintraub also added a seemingly post-partisan thought.

“The American public has come to rely on the CPSC to be the safety net that protects them from unsafe products,” she said. “And Americans, of whatever party affiliation they have, expect that toys and consumer products won’t cause them harm.”

To contact the reporter on this story: Martina Barash at MBarash@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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