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Consumer laws should protect children, not companies

March 13, 2020
Op-ed

It’s time to end the virtual gag order on the Consumer Product Safety Commission

In the medical world, potential side effects are often an expected trade-off for the prescription drugs that help many of us lead healthy lives. Consumers are able to weigh these risks because pharmaceutical companies are required to disclose them.

When it comes to the products we use every day, we don’t expect a list of side effects, but we do assume a safety guarantee. That’s unfortunately not the case for some of the products we bring into our homes, like inclined infant sleepers. For years, groups like the American Academy of Pediatrics have warned of an undisclosed danger that comes with using seemingly safe products such as rockers and swings: suffocation. Between January 2005 and June 2019, there were at least 73 infant deaths tied to these products.

However, Consumer Reports found last year that specifics related to the companies and associated products remained a secret because of a little-known section of the Consumer Product Safety Act. 

Section 6(b) of the1972 law was intended to ensure accurate information is released to the public regarding safety concerns about the products we buy and to provide companies a chance to respond. However, by requiring regulators to seek manufacturer approval to tie one of their products to an injury, health hazard or even a death, Section 6(b) has undoubtedly had a chilling effect on the Consumer Product Safety Commission, or CPSC, and in our view, has turned the well-meaning statute into a virtual gag order on the agency.

From toddlers’ toys to electronics to all-terrain vehicles, Section 6(b) often prevents the CPSC from properly alerting the public about potential hazards in many products that this law covers in a timely manner. 

The agency’s 2017 chief Freedom of Information Act officer report makes clear these seemingly straightforward procedures can be overwhelming, concluding, “CPSC cannot post or otherwise make publicly available information subject to 6(b) without following time-consuming and cumbersome procedures.” And when the nation’s product safety commission finally makes it through the legal obstacle course, a lawsuit may be waiting. For instance, after four children choked on squeeze toys, the CPSC attempted to issue a press release, warning the public when the manufacturer, Danara International, refused to fix the problem. Despite the clear notification and efforts to negotiate, the company sued, delaying the warning and wasting precious time as well as significant agency resources.

The risks associated with dangerous and toxic products aren’t plastered across our TV screens, and oftentimes, there is no evidence of the danger at all. But that doesn’t mean the threats aren’t there. Keeping parents, doctors and consumers in the dark about potentially hazardous products doesn’t keep us or our children safe, which is why we must work to ensure safety regulators can publicly release such information in a timely manner, before it is too late.

We’ve already seen the danger that comes from silence. For years, parents swore by inclined sleep products, like the Fisher-Price Rock ’n Play and Kids2 rocking sleeper, and laid their babies down for naps without worry. And can you blame them? Before these sleepers were recalled last year over infant deaths, there were no warnings from regulators, and parents had no reason to believe they were unsafe. In fact, marketing specifically emphasized these products’ ability to help babies sleep. The terrible truth was that reports had been coming in for years, tying dozens of infant suffocation deaths to inclined sleepers.

Fortunately, thanks to a disclosure of inclined sleep product injury data from the CPSC to Consumer Reports, concerned parents, consumer advocates and pediatricians were finally able to demand a recall. The CPSC has since proposed a rule that would altogether ban these harmful sleeper products, and the recently introduced SHARE Information Act would permanently lift 6(b)’s virtual gag order, allowing the CPSC to warn the public in a timely manner when products injure or kill Americans. 

When a parent loses a child to a dangerous product, they may blame themselves, without knowing that the same product has inflicted the same heartbreak on countless other families. Their misplaced guilt and grief may also lead them to not take any action to hold the manufacturer accountable. Keeping product injury data public is an essential step in guaranteeing safer products, faster recalls, healthier consumers and parental peace of mind.

When it comes to deaths and injuries caused by consumer products, manufacturers and regulators are weighing those risks behind closed doors and deciding for the public whether the danger is great enough. It’s time to return the decision-making power back to consumers, where it belongs.