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JPMA Tells Commissioners Concerns about Application of Section 104

Tuesday, November 10, 2015   (0 Comments)
Posted by: Lauren Schoener-Gaynor
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The Juvenile Products Manufacturers Association (JPMA) November 3 told CPSC members of worry that agency staffers use their Section 104 leverage in a way that harms the voluntary standards process. JPMA Director of Regulatory and Legislative Affairs Mark Fellin said the situation mostly involves warning labels rather than mechanical issues. He asserted that CPSC staffers do not provide sufficient justification for their views on decisions like the wording, format or placement of warnings because they can get what they want via Section 104. This can create a why­ bother attitude among industry representatives, including some who have voiced it openly at standards ­making meetings, said Fellin, who participates in such sessions. 
A related concern, said JPMA Public Affairs and Strategic Communications Executive Julie Vallese, is whether staffers effectively are setting CPSC standards policy without direction from or votes by commissioners. On this point, Fellin alluded to the historical power of staffers' rulemaking recommendations: commissioners more often than not follow them, so there is a concern that staffers thus see Section 104 as a trump card to be used in voluntary standards negotiations. This is especially troubling, said the JPMA visitors, given that the demands often seem to be single staffers' unvetted and untested opinions that then work their way up to becoming influential recommendations. Also a worry is whether demands actually improve safety. 
Two examples come from the currently­ open Section 104 NPR for ASTM's F2167 bouncer standard (PSL, 10/5/15): 
CPSC's desire for that a seatback warning be specifically at the spot where a baby's face would be did not come with data to show why the placement is superior to what is in the standard now – placed on the seatback using a dummy to ensure visibility in an occupied seat. CPSC's spot is prime branding real estate, so manufacturers are hesitant to give it up without safety justification. 
CPSC's desire for the addition of the phrase "even if baby is sleeping" to directions to fit the harness snugly goes against the intended use of the products. Although misuse of bouncers for sleep is not only foreseeable but common, companies are worried about encouraging the practice by including the phrase. They believe "always" sufficiently covers all situations, including sleeping without mentioning it. There is further fear that the use of sleeping might open bouncers to the requirements of sleep products. 
The two also pointed to the comments on the Section 104 rulemaking for ASTM F2670 on infant bathtubs. The chairman of the responsible ASTM F15.20 subcommittee gave a detailed chronology of 2014 and 2015 activity and asserted (PSL, 11/2/15) that CPSC staffers poorly communicated their desire for changes before putting them into the NPR. Those changes now are under review by ASTM, raising questions about the timing of the NPR. 
JPMA received some pushback in the session with Commissioner Robert Adler although he and his staff did not reject the claims but promised to investigate. Adler accepted that while CPSCers' views might not come with empirical backup like data from focus groups or studies, neither might industry's. He wondered if this simply is a matter of differing expert opinions on what most likely is best. 
Commissioner Ann Marie Buerkle expressed sympathy for the concerns about the proper line between staff­level authority and commission policy making. She also noted an upcoming meeting with agency lab staff about labels and said she would seek more information at that session. 
Commissioner Joseph Mohorovic similarly expressed sympathy and further voiced concern about what he termed "regulatory bullying" as a broad problem that goes beyond CPSC. Discussion at his meeting also led to questions about how best to seek hearings on the current Section 104 NPRs that allow industry testimony, as opposed to just staff briefings, so that specific concerns can be addressed via in ­person discussion with the full commission present. 
PSL was unable to attend the meetings in Chairman Elliot Kaye's office later that day and in Commissioner Marietta Robinson's the next day. Vallese told PSL that a reason for raising the concerns to commissioners was past statements that it is better for industry to bring such issues directly to him and other commissioners for resolution or clarification than to let them fester without input. 
Other topics raised by Fellin and Vallese included: 
Years'­ old industry concerns still exist regarding heavy ­handed corrective ­action practices and the demise of the fast­ track process (PSL, 6/18/12). They pointed as illustrative to a recent letter from a company to commissioners regarding its experiences. PSL is seeking a copy from the company and via FoIA to report on the contents. 
NHTSA is in the early stages of planning a seminar on recall effectiveness, and they urged CPSC to hold a similar event to seek ideas and best practices from all stakeholders. Combining with NHTSA would be problematic, said Vallese, as the agencies have differing recall regulations. She emphasized that all stakeholders, not just industry, have a shared responsibility to seek better recalls. CPSC last held a series of recall­ effectiveness workshops 12 years ago (PSL, 5/19/03, 8/4/03, and 9/15/03). There is a perception among industry of a risk of retaliation for complaining about CPSC practices. Resulting silence might be behind beliefs that the concerns of industry outside Washington differ from those of its representation there. (CPSC does have an anti­ retaliation policy. Read it at


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