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How the CPSC May Recover from Shutdown

The U.S. Consumer Product Safety Commission (CPSC) has been reopened for a week – possibly a third of the window between government shutdowns – and things seem to be quickly returning to normal. The agency has released messaging campaigns on both generator safety and TV anchoring, taking advantage of bitterly cold weather and what football fans hope will be a bitterly contested Super Bowl. But behind this appearance of normalcy, a key remaining question is how the agency will approach what must be a significant backlog of product reports.

In Fiscal Year 2017 (which saw no shutdown days), the CPSC fielded more than 76,000 calls and about 5,000 emails from consumers through its hotline service. The www.saferproducts.gov  database adds another thousand or so reports each year. Also in FY 17, the CPSC saw 531 reports from companies under Section 15 of the Consumer Product Safety Act, which requires manufacturers and retailers to report information reasonably supporting the conclusion that hazard is associated with their products.

The CPSC’s core mission is to look through these tens of thousands of data points to determine which merit action. It’s a big job at the best of times (and a shutdown is hardly the best of times), resulting in a month-long queue of reports staffers must deal with before they can tackle the ones that are coming in now.

How Will the Agency Catch Up?

The simple answer is that, like all dedicated public servants, CPSC staff will lean in and get the job done. The more nuanced answer is that the agency will likely have to adjust the lenses through which it views reports.

The dormant month may have rendered some of the reports moot. Many products are highly seasonal; some have innately short lives that may have already been expended; others may have already been pulled from the market by companies who chose to act rather than to wait for the CPSC’s return. Even if some of these might have merited action before the shutdown, the agency may be left with a fait accompli that doesn’t justify expending scarce resources.

The scarcest resource is staff time. However efficient they are, CPSC staffers can only look at a certain number of reports in a given day. Bandwidth may expand some in the exuberance of being back at work, but it can’t move much and can’t sustain a push indefinitely. With the stack of shutdown reports on top of whatever was left undone as funding ran out plus what is coming in now, the only way to get back on pace may be to narrow the field more quickly, to decide earlier in the process which issues are and aren’t worth further work.

Another resource – and perhaps the most difficult to quantify – is the public’s attention span for recalls. Experts throughout the product safety community have talked about “recall fatigue,” the idea that consumers have a finite amount of energy they are willing to devote to recalls. There is already concern that the CPSC’s one-a-day drumbeat contributes to this fatigue. A “catch-up” flurry risks not only drowning those recalls in a sea of their own noise but further exhausting consumers’ motivation. The CPSC may lean more heavily on other remedies, such as directing companies to correct future production but leaving the present market untouched. Companies with pending or imminent reports should consult with experienced CPSC counsel to discuss whether this approach is a viable option.

All of these calculations are complicated by the risk of another shutdown. Until it can be assured that it will be open past February 15, the CPSC may have to decide to maximize the time it has. The best option may be for the agency to act on the most serious potential hazards that it faces now and leave the more modest risks for later, realizing that the further passage of time and further stack-up will mean forgoing action on even more of those.

Whatever choices it makes, there is no doubt the CPSC faces a tough task in digging itself out from a month of unopened mail.

© 2019 Schiff Hardin LLP

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About this Author

Mike Gentine, Schiff Hardin, Product liability lawyer
Counsel

With experience spanning federal government, private practice, and in-house roles, Mike advises clients on legal and regulatory matters particularly in the area of consumer goods and product safety.

Mike has held multiple positions at the U.S. Consumer Product Safety Commission (CPSC). He served as senior counsel for the Office of CPSC Commissioner Joseph P. Mohorovic from 2014-2017, where he advised on various policy, enforcement, and ethics issues. He led several efforts to reform rules and regulations, including an initiative to reduce the paperwork burden on CPSC-regulated...

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