WASHINGTON, D.C. – Unable to derail the consumer products database mandated by the 2008 Consumer Product Safety Improvement Act in Congress, one manufacturer has turned to the courts. Meanwhile, the Government Accounting Office’s first run at the publicly accessible complaints database shows that SaferProducts.gov works pretty much as advertised.

On October 17, “Company Doe” filed a motion in a U.S. District Court in Maryland to prevent the U.S. Consumer Product Safety Commission from publishing a report alleging that a product caused an injury to a child. According to news accounts, the report emanated not from the alleged victim or his caregivers, but from another government agency, which could range from federal to a local entity, such as a fire or health department. The unnamed manufacturer characterized the report as “baseless” and sought anonymity for all filings, arguing that revealing its identity was tantamount to publishing the report in the database. The CPSC has said that it would be filing a motion to unseal the claim, but declined to comment further.

The publicly accessible and searchable complaint database was a cornerstone of CPSIA, which was signed into law by President George W. Bush and passed with bi-partisan support and overwhelming majorities. (Only one representative and three senators voted against it.) Implementation, however, has been much less popular. Manufacturers, who have had near total control of the flow of public information since the CPSC was established in 1972, have fought it every step of the way. While consumers routinely file complaints against automakers in the National Highway Traffic Safety Administration’s Vehicle Owner Questionnaire database without controversy or discernible effect on the vehicle manufacturers, other industries that have enjoyed the privilege of shielding complaints about their products from public view have reacted with great alarm. They have complained endlessly that the database would publish inaccurate information about their products and serve as a breeding ground for lawsuits. The Commission’s two Republican appointees Anne Northup and Nancy Nord have taken up industry’s cause, voting against it.

Republicans now serving in Congress have re-thought the GOP’s support. Last summer freshman Rep. Mike Pompeo (R-KS) introduced a measure prohibiting funds for a publicly available and searchable consumer database, even though the CPSC had already invested $3 million to complete it. On the Senate side, Senator Rand Paul (R-KY) proposed a Senate amendment that would have eliminated the CPSC altogether. This session, Pompeo has re-introduced his bill, and the Republican-dominated U.S. House is likely to approve it again, predicts Rachel Weintraub, Consumer Federation of America’s Director of Product Safety and Senior Counsel. But, the rock-solid support of Senators Rockefeller (D-WV), Durbin (D-IL) and Pryor (D-AR) ensured the viability of the database last session, and Weintraub expects they will protect it in the future.

The impact of the lawsuit is harder to assess: “Certainly what the lawsuit shows is the extent to which certain entities will go to keep information from consumers,” Weintraub says.

The GAO’s analysis of SaferProducts.gov, also released this month, found little to criticize in the database’s first six months of operation. The GAO’s only conclusion and related recommendation was for the commission to better analyze each report for evidence of a product number or serial number.

The CPSC actually puts each complaint through one of the most rigorous vetting of any federal agency. It reviews each report to determine if the submitter has included all the required information. (Those that don’t meet the minimum criteria are saved for internal use.) The CPSC then transmits a copy to the manufacturer, importer, or private labeler, allowing the company the opportunity to comment. Qualifying reports and manufacturer comments are posted.

CPSIA requires, at a minimum, that the submitter include eight pieces of information, including a description of the consumer product sufficient to distinguish it as something regulated by the CPSC; the identity of the manufacturer or private labeler by name; a description of the harm related to use of that product; and contact information and consent to publish the complaint. Many reports of harm submitted to CPSC as of July 7, 2011, were missing information required for publication on the web site. The GAO’s analysis of CPSC data showed that as of July 7, 2011, 5,464 reports of harm were received; 2,084 (38 percent) contained the minimum; and 1,847 (34 percent) were published. Consumers submitted 97 percent (1,786) of the published reports. 61 percent (1,128) of submitters reported that the harm or risk of harm occurred to themselves or a family member; 72 percent of reports contained numeric identifiers, such as a serial number or product number.

The GAO criticized the agency for failing to adequately identify all reports in need of a serial number or photograph of the product, a new requirement that was signed into law on August 12:

“While the model and/or serial numbers remain optional information for the submitter to include, under the recent amendments to CPSIA, CPSC now must contact submitters who did not report a model number or serial number to attempt to obtain this information, or a photograph of the product, before sending the report of harm to the manufacturer for comment. Unless CPSC strengthens the analytic methods used to identify reports with missing model numbers or serial numbers, it will not be able to identify all reports that require the agency to contact the submitter for more product information because it currently does not track all reports of harm missing such information. To effectively implement the recent amendments to CPSIA, we recommend that CPSC enhance the analytic methods it uses to identify product information in a report of harm, such as by verifying whether the model field in its data contains a number (versus a text response, which would not meet the statutory requirement) or by searching for model numbers or serial numbers that may be listed in other fields.”

In a response from the Democratic majority, three commissioners Robert Adler, Inez Tenenbaum and Thomas Moore agreed with the GAO’s analysis and said that they were already working on ways to address the Accounting Office’s recommendation.

New Child Dummies for Booster Seat Testing Offer Advancement – and Raise Significant Questions

Acknowledging concerns about the biofidelity of the new HIII 6-year-old dummy, the National Highway Traffic Safety Administration issued a Final Rule on Sept. 9 allowing manufacturers of child restraint systems to test for FMVSS 213 compliance with either the Hybrid II 6-year-old dummy (H2-6C) or the advanced Hybrid III 6-year-old dummy (HIII-6C).

Touted by NHTSA as the state-of-the-art, more biofidelic child dummy, the HIII 6C also has increased instrumentation allowing for better assessment of impact responses such as neck moments and chest deflections not measured by the HII 6C. However, the new dummy is also designed differently than the HIII-6C – the neck and ribs are softer, and the thorax is stiffer, which can significantly alter the kinematics of the dummy during testing.

Outside testing entities, however, were not as impressed with the HIII-6C. TraumaLink test lab raised significant concerns with the performance of the dummy when their tests revealed extremely large neck elongation unlikely to be seen in children in real crashes, which resulted in high calculated injury values. TraumaLink suggested that this would predict a pattern of injuries not seen in the real world. They argued that the “softer neck” caused increased neck elongation and forward excursion resulting in higher Head Injury Criteria (HIC) from chin-to-chest contact and in some cases, head-to-knee contact.

SafetyBeltSafe concurred, documenting “unrealistic stretching and bending of this dummy’s neck while tightly restrained by a lap shoulder belt in a booster. The result was that the dummy’s face directly contacted the chest, generating an unrealistic and unacceptably high HIC.”

In fact, NHTSA’s Vehicle Research and Test Center (VRTC) tests with the dummy generated head excursion increases from 2 to 4.5 inches.

Researchers also expressed concern about the new HIII-6C dummies permanently flexed hips which don’t allow for a slouched position and may inhibit submarining in non-optimal booster designs.

The real question is whether the dummy differences are more or less like what occurs in the real world. It is clear from a variety of recent testing of child dummies in child restraints, booster seats and vehicle seat belts, that there are significant concerns with the ability of child dummies to predict child occupant kinematics. NHTSA states that these issues are still under investigation as research and development of the HIII-6C dummy continues, but until they are resolved, the manufacturers will have the option of using the dummy of their choice.

CPSC Addresses Table Saw Safety

This month, the U.S. Consumer Product Safety Commission issued an Advance Notice of Proposed Rulemaking to require performance standards for a system to reduce or prevent injuries from contact with the blade of a table saw. The Oct. 11 announcement, in response to a 2003 petition, requested comments about performance safety standards to address injury. The CPSC study documented more than 60,000 blade contact injuries annually at a cost of $2.63 billion dollars each year, in 2007 and 2008.

Standard safety devices on table saws come in two forms: blade guards and kickback prevention devices. Traditional blade guards, however, can hinder table saw use, leading users to remove them. Blade guards can jam the work piece, block the user’s view and poorly align the splitter and the blade. In addition, difficult cuts actually require removal of the guard.

The initial voluntary standard published in 1971 by Underwriters Laboratories (UL987 Stationary and Fixed Electric Tools) has been revised many times, but essentially requires a guard that consists of a hood a spreader and a kickback device. The guard must completely enclose the sides and top of the saw blade above the table and automatically adjust to the thickness of the work piece. Performance requirements were subsequently added, which required new table saws to have a permanent riving knife that was adjustable for all table saw operations. The CPSC is still concerned that the UL standard does not adequately address blade contact injuries or the potential for removal of the safety components from the saw. In its proposal, CPSC documents an innovative modular blade guard design, and a new blade contact detection and reaction system that stops and retracts below the table when it detects contact with skin.

The Occupational Safety and Health Administration (OSHA) also has a regulation on table saws in the workplace that requires a guarded hood, inspections and maintenance of wood working machinery. The OSHA standards are effective in the workplace, but CPSC determined that home use by consumers needed additional protection.

The Commission requested comments on whether it should issue a voluntary standard, a mandatory rule or a labeling requirement for warnings on the device. They specifically requested suggestions for potential requirements for such a standard and information on new technologies that make table saws safer.

CPSC Proposes Mandatory Standard for Child Play Yard – Many Manufacturers’ Ignore Voluntary Standard

The CPSC has issued a Notice of Proposed Rulemaking to regulate children’s play yards. A “play yard” is a framed enclosure that has a floor and mesh or fabric-sided panels, primarily intended to provide a play or sleeping environment for children, that can fold for storage or travel. They are intended for children who are less than 35 inches tall who cannot climb out of the product.

Of the 2.9 million play yards sold in the US each year, only about half of the manufacturers have certified them to the ASTM voluntary standard established by the Juvenile Products Manufacturers Association (ASTM F-406-11). This may explain the numerous injuries and fatalities associated with play yards. The CPSC’s Directorate for Epidemiology reported 2,128 incidents from early November 2007 until early April 2011, including 49 fatalities and 165 nonfatal injuries. These incidents include suffocation from soft or extra bedding, and contusions and lacerations caused by the collapse of the side rail or sides of the structure, broken or detached component parts, and sharp surfaces.

The current ASTM standard for play yards is the basis for the proposed rule. This voluntary standard restricts sharp points and protrusions, lead paint and flammable solids and establishes requirements for stability, side height, floor strength, side deflection and corner bracket strength. The ASTM standard also contains requirements to protect children from entrapment and mattress displacement, and requirements that eliminate the risk that the outside rails collapse in a v-shape or result in a scissoring effect.

The new CPSC standard would incorporate the ASTM standard with a few changes intended to reduce the potential for improper testing, specifically related to the floor strength test and the corner bracket test.

WASHINGTON, D.C. – As the government ran on the fumes of a continuing budget resolution, and as the House Republicans and the Senate Democrats continued wrangling, the U.S. Consumer Product Safety Commission completed its soft launch of the new publicly accessible and searchable consumer product complaint database.

The SaferProducts.gov database is now live and available for consumers to use.  CPSC spokesman Scott Wolfson said that no technical glitches have surfaced so far. In an earlier test – from late January to early March – manufacturers found only 13 complaints out of 1,500 to be materially inaccurate.

“CPSC staff put a lot of hard work into building this database and it is a good resource for families to have open access to potentially lifesaving information,” Wolfson said.

“We stayed on budget and we launched this database for consumers on time.”

The completion of the database marks another implementation milestone in the Consumer Product Safety Improvement Act. In August 2008, President George W. Bush signed into law the Consumer Product Safety Improvement Act. It was the most extensive overhaul of consumer protection regulations since the U.S. Consumer Product Safety Commission was established in 1972. Even more remarkably, the bill was overwhelmingly bi-partisan and pro-consumer. It won the House of Representatives by a 424-1 vote and the Senate, 89-3.

At the time, the public was reeling from a spate of high-profile recalls of China-made products, from lead-tainted toys and toothpaste, to contaminated dog food and pharmaceuticals. With a record 448 recalls in 2007, there was a stampede on Capital Hill to expand regulation of children’s products and to toughen its oversight of imported products. The CPSIA gave the CPSC more recall authority, money and staff and reduced industry’s influence by banning the CPSC from accepting industry gifts, by raising civil penalties against violators and by taking away manufacturers’ control of negative information about their products.

Manufacturers have been gunning for the legislation ever since. With the Year of the Recall four years distant, and a Republican majority in the House, freshman Rep. Mike Pompeo (R-KS) decided to smother the CPSC database by choking off its appropriation. As part of a House budget bill to cut $61 billion in this year’s spending, Pompeo introduced a measure prohibiting funds for a publicly available and searchable consumer database, even though the CPSC had already invested $3 million to complete it. Not to be outdone, newly-minted Senator Rand Paul (R-KY) proposed Senate Amendment, SA 199 to defund the entire agency.

Industry has ceaselessly complained that the consumer product safety database would be a font of misinformation and a breeding ground for product liability lawsuits. Their ire is rooted in the 30-year stranglehold industry had on complaints to the CPSC. Section 6B of the Consumer Product Safety Act imposed the most stringent public information policy of any government agency upon the commission. Manufacturers controlled what negative information the CPSC could disclose, requiring it to gain prior approval of a manufacturer before public release. Manufacturers could prevent the release of any information it deemed “inaccurate,” and could sue the agency to prevent the release of such information – effectively hobbling the CPSC’s ability to warn the public.

The new database took that control from manufacturers, and they have been trying to get it back. On the eve of a vote on the Final Rule, Commissioners Anne Northup and Nancy Nord, the Republican appointees, proposed an alternative version that would have sharply curtailed who could report, and erected other barriers to reporting alleged defects. The unchanged Final Rule passed in December by a 3-2 vote along party lines.

In November, Safety Research & Strategies President Sean Kane provided testimony to CPSC and technical advice, based on its extensive experience with the National Highway Traffic Safety Administration’s (NHTSA) Vehicle Owner Questionnaire (VOQ) database and its own Vehicle Safety Information Resource Center (VSIRC). The database will contain reports of harm; manufacturer comments on those reports; recall information and any additional information the commission feels is in the public interest.

The reporting mechanism is open to just about any member of the public who would have knowledge of an alleged product-based injury or death – including health professionals, lawyers, public safety officials and child care providers. The reporting scenario asks the submitter for information about the harm, the product and the victim. It also asks for contact information, a description and date of the incident, the category of submitter, the type of incident, information about the victim and his or injuries and a description of the product.

Incomplete incident reports will not make it into the public database, including those that do not contain an identifiable consumer product, manufacturer or private labeler, a description of the harm; intrusive photographs, medical records without consent and reports by minors without a parent or guardian’s consent.

“The CPSC is committed to carefully reviewing each claim and making sure that all of the requirements are met,” Wolfson said. “Not all of the reports that come in through the website will qualify to go up onto the database.  We need reports to be accurate and safety-based, and we at CPSC need to make sure the right company is being notified.”

Manufacturers still have some recourse to correct and respond to reports or shield certain information from public view. Manufacturers may request, and the commission may grant, confidential treatment of portions of a report. The commission is also obligated to pull or correct materially inaccurate complaints and delete duplicative within seven business days of determining an inaccuracy. More than 1500 companies have signed up to receive e-mail notifications if a consumer mentions their company in a report, Wolfson said.

Last week, the public could lodge a new complaint in the database, but could not search for them. There is a 15-day lag time between the submission of a report and its appearance in the database, to allow the CPSC up to five business days to review the report, and to allow the manufacturer or private labeler 10 days to respond to the complaint. Consumers will be able to use the complaint search function starting in early April.

“Our database is different than other federal databases,” Wolfson said.  “There are protections in place for businesses and we are educating consumers on the importance of reporting accurate information to CPSC.”

BOSTON, MASS – In September, Massachusetts passed the toughest ATV law in the nation, becoming the first state to ban All-Terrain Vehicle use for children 14 years and younger. In October, researchers for the Johns Hopkins Bloomberg School of Public Health announced the results of a study showing that ATVs were responsible for significant and rising hospitalizations of children 18 and younger.

In nearly 40 years of recreational use in the U.S., ATVs have been injuring and killing children. Thirty years of government intervention have managed to lessen the mayhem, but not stop it. Today, with a ban on three-wheeled ATVs in place and some mandatory standards, the CPSC, bolstered by the Consumer Product Safety Improvement Act (CPSIA), is still contemplating changes to further protect children.

“We are absolutely concerned for the safety of children,” says CPSC spokesman Scott Wolfson. “We continue to see a staggering number of deaths and injuries that are related to young riders being on or driving adult-sized models.”

Dr. Peter Masiakos, a Mass General emergency room surgeon who led the fight for “Sean’s Law,” treated 8-year-old Sean Kearney when he was transported to the hospital by helicopter after an ATV crash. Masiakos says the problem goes much deeper.

“We started with the premise that nothing has worked so far,” he says. “Despite the preaching of the industry, we know that people don’t train and we know that people don’t wear helmets and we know people don’t use safety equipment. The one thing we know for sure is that the outcomes are worse. The number of injuries has gone up and the number of deaths has gone up.”

JHU’s Center for Injury Research and Policy documented this rising tide of injury by examining hospitalizations for ATV injuries from 1997-2006. The researchers found an alarming 150 percent increase in children under the age of 18, with the most dramatic increases in the South and Midwest, among 15-17-year-olds. Boys are still the most likely victims of an ATV mishap, but the study also charted a big jump – 260 percent – in ATV-related hospitalizations for girls, ages 15-17. The study is expected to be published in December’s issue of the Journal of Trauma. In a press release announcing the study’s results, Stephen M. Bowman, PhD, MHA, and assistant professor with the Center and the report’s lead author, speculated that a mismatch between the rider and the machine was behind the data.

“All-Terrain Vehicles are inherently dangerous to children,” Bowman said. “While manufacturers are required to label vehicles with engine sizes greater than 90cc as inappropriate for children younger than sixteen, our data indicate that a growing number of children are receiving serious injuries due to ATV use, suggesting that parents are unaware of these recommendations or are choosing to ignore them.”

Co-author Mary E. Aitken, a professor of pediatrics at Arkansas Children’s Hospital, issued a call to action to the CPSC:

“Clearly, too many children are being injured on these vehicles. Given the dramatic increases in hospitalization that we report, a renewed effort by the public health community, the ATV industry and the CPSC to address this problem is warranted,” she said.

The CPSC has long done battle with the industry and a vocal group of ATV enthusiasts who object to government restrictions on their use. In 1988, the CPSC and the ATV industry signed a 10-year consent decree to reduce injury risks. Among the provisions were free training for riders, warning labels, a public education campaign and a ban on three-wheeled ATVs. After the decree expired, some manufacturers voluntarily continued these practices; others did not. While other researchers have looked at injuries and deaths in the immediate aftermath of the decree expiration, the JHU study is the first to look at the long-term effects.

The CPSC, meanwhile, continues to tally the damage each year. Its most recent report, issued in January 2010, noted that between 1982-2008 9,633 deaths occurred. ATV deaths increased in 2006, 2007 and 2008 – which had the highest single year death toll of 461. Children accounted for a significant percentage of the total: 2,588 decedents (27 percent) were younger than 16 years of age and 1,102 (11 percent) were under 12.

“We want parents to think about the consequences of going from a youth model with a speed limited to 15-30 mph, and a model weight of 200-250 pounds, to jumping on the father’s ATV that weights 500 pounds and goes 50 mph,” Wolfson said. “The consequences are deadly.”

During the years that the consent decree was in place, ATV-related injuries and deaths dropped, but as soon as the decree expired, the rates began climbing again. The CPSC counts a smaller subset of youthful riders – placing the dividing line between child and adult riders at age 16 to correlate with the current youth model age ranges. Therefore, the commission does not record the same rate of injury increases as did the researchers from Johns Hopkins University. The CPSC annual reports show that the percentage of ATV-related injuries and death dropped to 28 percent of the total reported injuries in 2008. But children still represent a sizeable portion of the annual total of injuries and deaths.

Today, some older three-wheeled ATVs may still be in use, but nearly all are four-wheeled vehicles. In 2006, the commission had begun a rulemaking on ATVs, but before it could be completed, the CPSIA directed the CPSC to make ATV voluntary safety standards mandatory and prohibited the sale of three-wheeled ATVs. The mandatory standard became effective in April 2009.

The CPSC is still reviewing the range of youth models, and determining whether the mandatory standards are adequate. Wolfson said that the current generation of youth models might not be sized appropriately for today’s youth.

“You can have a situation where a 14-year-old ATV rider is put on an adult model because it looked right,” Wolfson said. “We are trying to work with new rules that would create more youth models reflective of the size of those riders, yet, we still control maximum speed and limit the weight of the ATV.”

The CPSC wants the industry to resume offering free training nationwide, and they are considering requiring adult purchasers to sign a document warning that placing youthful riders on adult-sized machines could result in death. Finally, the CPSC is consulting with the National Highway Traffic Safety Administration to determine if stability standards should be established.

Masiakos says that tinkering with the vehicle or adding training is simply not sufficient to compensate for the developmental deficits inherent in child riders. Children under 16 years of age don’t have the judgment and skills to handle a 250-pound motorized vehicle that can travel more than 30 mph, as many youth models do.

The Massachusetts law, championed by the Massachusetts Prevent Injuries Now Network (Mass PINN), was inspired by a 2005 measure adopted by the Nova Scotia legislature. It banned children under 14 from riding ATVs anywhere except on a closed course, with parental supervision and the presence of a person with advanced first-aid training standing by. Nova Scotia adopted the ban after a crash that killed three teenage girls. Masiakos says that the ban reduced the child ATV injury rate by 50 percent in one year.

“I’m passionate about it, because I experience the injuries and they are preventable,” he says. “Parents don’t understand the risks involved. They are marketed as a recreational item, not as a motorized vehicle,” he said. “But it’s misguided to think they are safe and think they can be made safer by changing the throttle, the engine displacement and changing the weight.”

WASHINGTON, DC — The U.S. Consumer Product Safety Commission has moved forward with its mandate to create a publicly accessible consumer products complaints database by posting a proposed rulemaking outlining the details of the new system.

The database is a requirement under the Consumer Product Safety Improvement Act of 2008 (CPSIA) and it represents a marked change in consumer access to information about defective and troubled products. Since 1972, manufacturers have been the gatekeepers of information released by the CPSC. Under Section 6B of the Consumer Product Safety Act, manufacturers can remove any data it deems “inaccurate” and even allows a manufacturer to sue to prevent the release of such information.

The database corrects this imbalance, allowing consumers to access information about any product or substance the CPSC regulates in a searchable format, without the manufacturer filtering the complaints.

“The consumer complaint database is incredibly important for consumers to have more information about products they own or seeking to purchase,” says Rachel Weintraub, Consumer Federation of America’s Director of Product Safety. “The Commission has done an impressive job and the result is a robust database.”

The process began in September, when the CPSC submitted a detailed implementation plan to Congress. The commission followed up with a public hearing two months later that drew comments and presentations from consumer advocates, industry trade groups and researchers. Safety Research & Strategies was among the organizations that testified, offering the benefit of its lengthy experience with NHTSA’s complaints database and its own Vehicle Safety Information and Resource Center (VSIRC) database of complaints, recalls, investigations and crash / compliance tests. In January, the CPSC held a two-day workshop to discuss the fine points of implementation, including data analysis and reporting; reports of harm; manufacturer notification and response and manufacturers’ biggest bone of contention: materially inaccurate information.

In April, the commission voted 3-2 to initiate the rulemaking process. The votes fell along party lines, with Democrats Inez Tenenbaum, Bob Adler and Thomas Moore approving the measure and Republicans Nancy Nord and Anne Northup in opposition.

The Republicans, carrying spears for the manufacturing associations, offered 20 amendments designed to water down the bill, only to have the majority turn them aside. In a statement explaining her vote, Northup pretty well encapsulated all of the manufacturers’ worst fears in this scenario:

“Imagine that early one morning a man wearing slippers and a bathrobe props a frost-covered Louisville ladder against the gutter of his house and starts climbing up to retrieve the family cat. Holding his morning cup of coffee and nursing a severely sprained ankle from the previous night out dancing, he slips off the ladder when he reaches for the cat and tumbles to the ground unharmed. Scenes like this involving all varieties of consumer products play out across the country every day, but they do not represent an epidemic of defective products. Yet, combining such scenarios with the proposed database rule the Commission has now passed, these ordinary incidents will become the basis for confusion and possibly mischief via unreliable and unverifiable reports of harm. Under the proposed rule, the nosy neighbor next door could submit a report of harm to the national database indicating that an Acme ladder caused a man to fall and break his ankle. Such a well-intended but inaccurate report—wrong manufacturer, wrong injury information, lots of missing context—would not help consumers differentiate properly between safe products and unsafe ones.”

As bad as that sounds, some commenters envisioned much worse – web-based automated robots “spamming the database with bogus information.”

Weintraub says that the doomsday fantasies sketched by some industry advocates may reflect a dim view of consumers, but not necessarily reality.

“Above all everyone wants accurate information. It’s only useful for consumers if the information is accurate. Everyone shares that goal. The question is: how do we get there? There’s no evidence this would happen or will happen. People are busy. Consumers don’t want to submit wrong or misleading information and there are checks in place. Of course consumers are going to make minor mistakes, but that can be overcome with supplemental information.”

The proposal comes firmly down on the side of inclusiveness, despite manufacturers’ attempts to either restrict who can report a product complaint, or create a complicated report process. For example, the commission proposes that except for information collected through hospital emergency room data and death certificates, all reports of harm would be submitted on the same incident report form and would be added to the database – including anonymous sources, but only those reports that have the minimum amount of required information will be included in the public database.

The new regulation would address the issue of accuracy by requiring reporters to check a box on the form indicating that they certify that their incident report to be true and accurate to the best of their knowledge. The website would not permit the report to be submitted until this box is checked.

Wayne Morris, vice president of the American Home Appliances Manufacturers says that AHAM’s members are concerned about the accuracy and value of information in the CPSC public incident database.

“If it is properly constructed and maintained, it could be a useful tool to all,” he added.

The proposal also gives manufacturers the opportunity to respond directly to complaints; to request that inaccurate information be removed from the database or to request confidentiality.

“We do not know at this time how many incident reports the manufacturers will respond to.  It is important to manufacturers to have the means to make a comment and time necessary to do the investigation to ensure accuracy,” Morris said.  “Under the proposed rule, manufacturers have a limited amount of time to respond and may not, within that window, have the ability to fully investigate the incident. It serves no useful purpose to have consumers make buying decisions on products based on inaccurate information.  We believe the Commission staff is working diligently to find ways to accomplish all of this within the context of the CPSIA law.”

Commissioner Bob Adler sees nothing but winners – for consumers, manufacturers and researchers, who will have much more useful information available to them. In a statement, Adler also said that the CPSC will benefit:

“The Commission regulates over 15,000 product categories – with just over 500 employees. The reality is that we cannot be everywhere all the time, and we cannot respond to every complaint, no matter how justified,” Adler said. “I believe this database will increase the agency’s ability to accomplish our mission of protecting consumers by allowing any interested party to have access to much of the same data that we do – permitting all of those interested in consumer safety to assist us in assessing unreasonable risks of injury, evaluating the comparative safety of products, and in the long run helping us to prevent product-related deaths, illnesses and injuries. In other words, this database will be a benefit to the greater good of consumer safety.”

The CPSC is accepting comments on the proposed rulemaking through July 23.

Washington, D.C. – The U.S. Consumer Product Safety Commission has leveled the second largest fine against a lead paint violator and prohibited the company from selling children’s toys and products in the U.S. until it creates a comprehensive safety plan.

In early March, Daiso Seattle LLC, of Seattle, Wash. and Daiso California LLC, of Hayward, Calif. agreed to pay $2.05 million in civil penalties, after the CPSC alleged that Daiso violated the Consumer Product Safety Act (CPSA) by distributing children’s products with high lead paint and phthalate concentrations and toys with small parts for children under three years of age, without proper warning labels. Under the consent decree, Daiso agreed to a take a number of steps to ensure product safety in the future.

Daiso’s fine was just a hair under the highest penalty ever levied against a manufacturer by the CPSC for violating the old limits on lead paint in children’s products. In June, Mattel/Fisher Price agreed to pay a $2.35 million penalty. In total, the agency has imposed nearly $8 million in civil fines. Under these settlements, manufacturers are allowed to deny the CPSC allegations that they knowingly violated a 30-year-old law limiting the lead content in paint to .06 percent in paints and surface coatings. Nonetheless, advocates say that the settlements send a strong message to industry about the CPSC’s newfound intolerance for companies that import products that harm children.

“I feel there’s a renewed commitment to safety in these actions,” says Nancy Cowles, executive director of the advocacy group, Kids In Danger. “It won’t be a slap on the wrist – you won’t be able to ignore the requirements. You are actually going to have to pay fines. That injunction (against Daiso), they’ve never done that before. That’s an interesting part of the whole package.”

Under the consent agreement, Daiso must complete a number of steps before the CPSC will allow the company to resume selling children’s products. The company must conduct a product audit to determine which merchandise requires testing and certification; establish and implement product safety testing; retain an independent product safety coordinator; a third-party testing entity and toxicologist and/or an accredited testing laboratory; create guidance manuals for managers and employees on how to comply with product safety requirements; and establish recall procedures. Finally, the company has to demonstrate to the commission that it understands its safety obligations and is in compliance with all federal laws.

Since June, the CPSC announced that it had levied fines of more than $3.1 million against 13 children’s product manufacturers, importers and sellers to settle the federal lead paint ban. The settlements covered toys, children’s metal jewelry, children’s pens, metal water bottles, pencil pouches, sunglasses and children’s Halloween pails and baskets recalled in 2007 and 2008 that also violated the 1978 limits on lead in children’s products.

The companies are: RC2 Target Corp. of Minneapolis, Minn., $600,000; OKK Trading, of Commerce, Calif. $665,000; Schylling Associates Inc., of Rowley, Mass., $200,000; Excelligence Learning Corp. of Monterey, CA, $25,000; Cardinal Distributing Co. Inc., of Baltimore, Md., $100,000; Dollar General Corp., of Goodlettsville, Tenn., $100,000; Family Dollar Stores Inc., of Matthews, N.C., $75,000; Hobby Lobby Stores Inc., of Oklahoma City, Okla., $50,000; First Learning Company Ltd., of Hong Kong, $50,000; Michaels Stores Inc., of Irving, Texas, $45,000; A&A Global Industries Inc., of Cockeysville, Md., $40,000; Raymond Geddes & Co, of Baltimore, Md., $40,000; and Downeast Concepts Inc., of Yarmouth, Maine, $30,000.

These settlements reflect violations under the more lenient lead limits dictated by a 32-year-old regulation. Under the Consumer Product Safety Improvement Act of 2008, products sold to children must be manufactured under more stringent guidelines. In August, the allowable amount of lead in surface coatings of children’s products dropped to .009 percent. The commission has not yet enforced the new, tougher, lead limits under the CPSIA; the lead testing provision is currently under a stay, designed to provide temporary relief to manufacturers while they gear up to adhere to the new regulations.

Rachel Weintraub, Director of Product Safety and Senior Counsel at Consumer Federation of America, called it “the dawning of a new CPSC.” She praised the commission not only for holding companies responsible for complying with the law, but for “creatively” imposing sanctions such as the injunction against Daiso.

Weintraub also pointed out that the CPSC recently broke with past practice, issuing a general warning to the public about the dangers of baby slings about two weeks before manufacturer Infantino LLC recalled more than 1 million baby slings. Infantino announced the recall on March 24, after three infant deaths were reported. The U.S. CPSC issued a general warning on March 12, “advising parents and caregivers to be cautious when using infant slings for babies younger than four months of age, based on a survey of incident reports from the past 20 years and open investigations into at least 14 deaths associated with sling-style infant carriers, including three in 2009.”

“The recall wasn’t ready to be announced, but they wanted to warn the public about baby slings, and that is not something that we have seen for a long time – using their ability to communicate hazards to the public,” Weintraub said.

WASHINGTON – When the Consumer Product Safety Improvement Act was signed into law last August, proponents characterized it as the most significant upgrade to the U.S. Consumer Product Safety Commission’s powers since the agency was established in 1972. But, according to a new report, the implementation of these sweeping changes “is not going well.”

The April report, compiled by the Congressional Research Service, describes an agency overwhelmed with multiple statutory deadlines,” and a business community beset by confusion over the new lead limits for products intended for children 12 and under. Small businesses, and consignment and thrift stores have had the toughest time understanding how the law applies to their older inventory, but other industries have also been paralyzed. The report noted that despite the CPSC’s attempts to clarify the new regulations, fear of incurring costly penalties for violating the CPSIA, or of enforcement actions by state attorneys general, or liability lawsuits are stifling sales of older merchandise.

Alarmed by a record 448 recalls last year, Congress passed the Consumer Product Safety Improvement Act this summer. It requires the CPSC to expand its regulation of children’s products and to toughen its oversight of imported products. It also gave the CPSC more recall authority, more money and staff – raising the funding from $80 million in 2008 to $136 million in 2014 and increasing fulltime staffing from 420 to 500. With these tools, CPSC was expected to improve children’s product safety, import safety, enforcement and administrative procedures. Instead, the agency finds itself besieged by industry requests to delay implementation and unable to claim absolute authority over its decisions to create a more orderly transition to the new rules.

The broadest and most troublesome provisions ban paint and children’s products that contain more than a minimal amount of lead or phthalates (a plasticizer added to polyvinyl chloride [PVC] to make it more flexible) and expanded the definition of children’s products to include all goods that are primarily intended for those under the age of 12.

The ATV industry, for example, is grappling with the Commission’s recent decision to allow them to sell older models of youth ATVs that exceed the strict lead limits. The Commission’s only two members granted a two-year stay of enforcement, to give companies time to unload their inventory. The industry had argued for relief, saying that the lead in the non-compliant models is necessary for durability and to prevent corrosion and that it is found in components that children are unlikely to come in contact with.

They had pleaded for time to design and test models that would contain less lead, but many are reluctant to accept the agency’s response as definitive. Trade organizations fear that the stay does not shield them sufficiently from liability lawsuits or other state and federal actions and are now looking for Congress to amend the law.

The act empowers state attorneys general to enforce the CPSIA, meaning they could ignore the commission’s stay and prosecute a retailer for violating the law. The CPSC has no authority over attorneys general to require that they honor any of the commission’s exemptions or temporary suspensions.

Republican Chairman Nancy Nord famously lobbied against most of the provisions of the act, such as those that would expand the agency’s staff and budget. She also objected to the ban on lead in children’s products, calling it impractical, and asked congress to strike the portion of the bill allowing attorneys general to prosecute violators. In attempting to mediate between panicked industries and fast-moving deadlines, Nord has repeatedly told trade groups that the CPSC cannot amend the act and has complained about its prescriptive nature.

In January, the Motorcycle Industry Council also sought a temporary final rule to exclude a class of materials found in motorcycles so that those products would not be in violation of the CPSIA. But the CPSC’s General Counsel responded that the agency did not have the authority, under the act, to grant it. “Currently, dealers around the nation say they have taken roughly $100 million worth of child-sized bikes off showroom floors. Dealers fear stiff fines for selling non-compliant products— various components (including battery terminals and tire stems) exceed the new lead limits,” the report said.

Other manufacturing organizations also got a glass-half-full response to their requests for relief. A group led by the National Association of Manufacturers (NAM) petitioned the agency to delay the February 10 effective date and issue compliance guidance. Instead the commission offered “limited relief” from enforcement of testing and certifications for one year for manufacturers and importers of regulated products, including products intended for children. But the NAM coalition protested that the enforcement stay only confused the issue, because the enforcement stay did not exempt them from complying with the CPSIA requirements, and still left manufacturers open to prosecution.

The agency also tried to better explain the duties and responsibilities of re-sellers of children’s products and ended up sowing more confusion. The January Guidance Intended for Resellers of Children’s Products Thrift and Consignment Stores attempted to emphasize that the commission’s enforcement priority was manufacturers and reiterated that the CPSIA does not require resellers to test their children’s products for compliance on lead limits. But the agency also said: “However, resellers cannot sell children’s products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.”

In the meantime, several members of Congress, including Congressman John D. Dingell, chairman emeritus of the House Committee on Energy and Commerce Chairmen and Senators John D Rockefeller and Mark L. Pryor,and Representatives Henry A. Waxman and Bobby L. Rush, the Subcommittee Chairmen of the Senate and House committees responsible for overseeing the CPSC have attempted to sort it out, sending letters to the agency demanding that it act quickly to dispel the confusion and address the implementation issues. The latter four also wrote to President Obama blaming Nord for mishandling the CPSIA and strongly suggesting new leadership was needed. Despite this, says the congressional report, “it is still far from clear whether the problem is with the CPSIA itself or with the manner in which the CPSC is administering it. And, by the same token, it is uncertain whether the agency could resolve many of the issues itself, or if it is wholly a matter for Congress to decide.”

President Barack Obama’s choice to replace Nord, Inez Moore Tenenbaum, will inherit these problems if the Senate confirms her nomination. The former South Carolina education superintendent is likely to have more allies on the commission. Under the CPSIA, the body will expand to five members. Obama has also nominated Robert Adler, a professor legal studies at the University of North Carolina, an advisor to former commission members and a member of Consumers Union’s board of directors, to serve on the CPSC.

VINALHAVEN, ME – The U.S. Consumer Product Safety Commission has opened a probe in December 2008 into the strangulation death of a two-year-old who became entangled in the mesh netting of his crib tent.

Noah Thompson of Harvard, Mass., was strangled when his head got stuck between the mattress and mesh covering that was placed over his portable crib. His parents, Marc Thompson and Lisa Rosen, told state police that they had used the netting to prevent their son from climbing out of the crib.

This incident was one of at least 10 involving crib tents or canopies in which a child was entangled in the mesh, the dome inverted, or the child managed to tear a hole in the canopy entrapping the child. Some of these incidents have been reported to the U.S. Consumer Product Safety Commission, some have appeared on parenting message boards. At least two incidents have resulted in a child death.

News reports did not mention the product implicated in Thompson’s death by name, and the CPSC, which launched an immediate investigation, is prohibited from releasing the brand name until its investigation is complete. There appear to be only a handful of crib tent manufacturers worldwide, including one in India and another in Australia. One of the attractions in warm weather countries is the protection from insects they offer children. In the U.S., the Massachusetts-based Tots-In-Mind Inc., appears to be the only manufacturer of crib tents.

Tots-In-Mind’s Cozy Crib Tent and Crib Tent II are domed canopies that fit over fiberglass cross rails arching over the top rail of a crib; the mesh sides extend down inside the slatted crib sides. Tots-In-Mind advertises these products as protection against crib falls and intrusions ranging from pets to insects to other unwanted objects. Sold at major retailers, such as Walmart, Baby Express and Burlington Coat Factory, the Cozy Crib Tent and Crib Tent II offer parents “peace of mind,” and assurances from the manufacturer that it is “safety tested.”

But the Cozy Crib Tent and Crib Tent II have been a source of worry and tragedy for some parents who relied on the company’s promises. On October 5, 2007, Nicholas Blanco, 2, of Ashburn, VA, suffered permanent and devastating injuries when he became entrapped and strangled by a Cozy Crib Tent.

On the message board, www.eopinions.com, one poster claimed that a Cozy Crib Tent caused her child’s death: “the Company won’t even so much as validate my complaint regarding my son’s death. This product WAS a death trap plain and simple. I got it to help keep my very active climbing toddler safe. What it ended up doing is costing him his life. He ripped apart the netting and strangled in this. So please I beg you don’t use this. Co-sleep, put your child’s crib in your room, sleep on your child’s floor ANYTHING but use this.”

Other mothers have appealed to parents on web-based message boards to avoid the Cozy Crib Tent, based on near-misses:

“Please check your Crib Tent if you have one. Dallas has the Original Crib Tent on her sleigh crib. I put her down for a nap as her ears were hurting her. The ends of the crib tent were loose. She was fighting going down for a nap and was playing in the crib. The end of the flap got caught around her neck when the Velcro straps and the ties got caught on each other. She tried to get out of it but it was too tightly wound around her neck and body. God only knows what would of happened if I finally hadn’t decided to go in there to see why she wouldn’t go to sleep. The Crib Tent is coming off and going in the trash. Please check your crib tent and make sure it is properly installed. Dallas is fine now. I on the other hand am a basket case at the moment,” wrote Susan Hodges of Breauxbridge, Louisiana.

“I bought this because my son is a Houdini of the toddler world and was forever climbing out of his crib. The tent worked for a while until he figured out how to unzip it from the inside. We used a big safety pin to secure the zipper on the outside of the tent where he couldn’t reach it. Then he ripped the short end of it apart. I sewed it back together. The final straw was when I was reading a book at his nap time and heard him making weird noises in his room. He had pulled apart the long backside of the tent where there’s a channel for a long plastic reinforcing stick. His neck had become trapped between the plastic stick in it’s channel and the side of his crib when he stuck his head through the opening he had made. I have called Tots In Mind about this, and this product is still on the shelf being sold to the public,” wrote another poster.

Crib tents are among the esoterica of parenting aids in the modern age that are sold under the regulatory radar. While full-sized and non-standard size cribs are subject to mandatory requirements governing the hardware, adjustable rails, mattress size, decorative cut-outs, construction and finishing and presence of lead, crib tents are subject to no government regulations. Tots-In-Mind is a member of the Juvenile Products Manufacturers Association, which awards some member’s products a “safety certification.” But this is a voluntary program and the standards and testing procedures associated with it are not transparent to the public. The Cozy Crib Tent and Crib Tent II are not JPMA certified; nor are there any standards governing its structural integrity. The company’s claims of safety testing can not be measured against any objective criteria.

“Where federal standards fail, you have ASTM standards, but crib tents are not even on the radar screen,” says Donald Mays, Consumers Union’s Senior Director of Product Safety and Technical Public Policy. “And right now there are such big problems with cribs, play yards and portable cribs. Millions have been recalled because of defects.”

The Consumer Product Safety Improvement Act of 2008 will do little to remedy the lack of standards for crib tents. The act requires the establishment of standards and certificates of compliance for durable juvenile products that fall into 12 categories: cribs; toddler beds; high chairs, booster chairs, and hook-on chairs; bath seats; gates and other enclosures for confining a child; play yards; stationary activity centers; infant carriers; strollers; walkers; swings; and bassinets and cradles. Crib tents appear to fall outside the new law’s purview.

Mesh Designs a Longstanding Suffocation Hazard

But at least one key element of the Cozy Crib Tent and the Crib Tent II – the mesh covering – has been implicated as a suffocation hazard in other crib products. The CPSC has been periodically recalling cribs with mesh siding for at least 35 years. In 1983, the agency issued an unusual “urgent appeal” for consumers to heed safety recalls, based on 10 infant deaths in mesh-sided cribs and playpens since 1973.

Over a six-day span in May 1983, the CPSC learned of two infant deaths in mesh-sided playpens. The infants had “apparently rolled into the mesh pocket formed when one side of the playpen was not in a fully raised position,” the agency said. This followed a nationwide alert in March 1983, alerting consumers that drop side mesh playpens and portable mesh cribs, used with a side left down, can pose a severe safety hazard to infants.

In those 10 years, the CPSC was aware of four deaths involving mesh-sided playpens and six deaths and two non-fatal accidents involving mesh-sided cribs since. “Seven of the incidents involved children six weeks old or less who were left in the playpen or crib with one of the two drop sides in the down position. After falling off the end of the mattress pad, the infant’s head or chest was compressed between the floor board and the mesh side so the child was unable to continue breathing,” the agency warned.

In 1987, Shelcore, Inc., of South Plainfield, New Jersey, recalled its Crib Soft Playground, an activity center for use in cribs and playpens, after a 14-month-old trapped his head between a loosely tied toy and the mesh on a playpen and strangled to death. The agency noted that the instructions do not advise consumers about proper string tightness or against use in a

mesh-sided crib or mesh-sided playpen. When strings are not tied tightly or become loosened with use, the agency warned, the string between the toy and the crib may present a potential strangulation hazard if a child were to become entrapped between the toy and the crib or playpen side.

In 2007, the CPSC issued a second recall notice for mesh-sided cribs sold through a Puerto Rican company, B&B Stores. As in the first notice, issued in 1997, the CPSC warned that the mattress pad compresses, a gap can occur between the side panels and the bed frame, and the snaps can separate from the frame, presenting suffocation hazards. In addition, the side rails can bend, presenting an entrapment hazard.

Although a CPSC spokesman, in responding to the death of Noah Thompson, noted that many manufacturers had abandoned mesh designs in their crib products, some still incorporate mesh into their designs and mesh continues to pose a suffocation hazard.

Last year, Playkids U.S.A. of Brooklyn, N.Y. was forced to recall about 2,000 convertible cribs, because the mesh sides of the convertible crib expand, creating a gap between the mattress and the side through which an infant can slip. This crib had been implicated in the August 31 death of a 5-month-old child who became entrapped between the mattress and the stationary side rail of the convertible crib and suffocated.

Consumers Union advises parents against putting anything other than a child in a crib – including crib bumpers, stuffed animals, pillows, comforters and other add-ons. “The best crib is a naked crib,” says Mays.