On October 14, the Government Accountability Office (GAO) published a report entitled “Consumer Product Safety Commission: Challenges and Options for Responding to New and Emerging Risks.”  The report analyzes the timeliness of the Consumer Product Safety Commission’s (CPSC) response to “new and emerging” safety risks from new or existing consumer products.  It is based upon a review of current product safety laws and regulations, related literature and studies, timeliness related to the regulation of specific consumer products, and interviews with CPSC officials, including current and former Commissioners, industry representatives, consumer groups and other subject-matter and legal experts.

According to the report, although the CPSC uses a multifaceted approach to reduce the risk of injury to consumers from immediate and future problems, the CPSC faces hurdles and challenges in responding timely to emerging risks because “the CPSC was established to respond to risks after products have been introduced into the market.”  The report concludes that the timeliness of the agency’s response to new and emerging risks is affected by factors such as:

• compliance actions that can involve prolonged litigation in response to hazardous products;

• the agency’s reliance on voluntary standards in certain circumstances;

• lengthy rulemaking procedures;

• restrictions on information sharing; and

• the agency’s limited resources.

Although the report makes no formal recommendations, it sets forth and evaluates four possible options to improve the agency’s response time to these new and emerging risks.  These proposals include:

1. Expanding Preventive Approaches through Regulation.  This option focuses on preventing hazardous products from entering the market in the first place.  Under this approach, a product would generally not be allowed on the market unless sufficient evidence could be presented to demonstrate that it safe (such as through pre-market approval).  However, a majority of those interviewed for the report did not believe it would be wise to implement such an approach.

2. Expediting Mandatory Standard Rulemaking Authority.  This option would allow the CPSC to follow the rulemaking procedures of the Administrative Procedure Act (APA) rather than those set forth in the Consumer Product Safety Act (CPSA).  The report notes that the APA procedures lack the cost-benefit analysis requirements specified in the CPSA.  Opinions varied as to whether this approach would inhibit industry’s access to CPSC and due process as provided by the CPSA.

3. Enhancing CPSC’s Authorities to Address Unsafe Imports. Some of those interviewed supported increasing the CPSC’s import surveillance authority at the ports of entry as a means of identifying product safety risks.  However, others thought this would add an undue cost burden to industry and believe that that new and emerging product risks are simply not identified at ports of entry.

4. Improving the Agency’s Ability to Analyze Data.  Most of those interviewed agreed that additional resources would allow the agency to hire more staff with expertise in technical areas such as toxicology, public health, epidemiology, and engineering.  This could improve the agency’s ability to timely analyze large quantities of data to identify potential product risks.

The utility of the GAO report is somewhat limited.  The report simply assumes and asserts, but does not conclusively demonstrate, that the CPSC has a problem responding to new and emerging product safety hazards.  The report also assumes, without demonstrating, that this alleged inability is because the product safety laws administered by the CPSC require due process and the consideration of relevant factors, including consensus standards, the mainstay of the global and U.S. product safety regimes.  Nevertheless, it will be interesting to see if and how the CPSC, and Congress, respond to this latest GAO report.