The Product Safety Commission Hit An Iceberg And Lost Its Way

Andrew F. Quinlan | President, Center for Freedom and Prosperity

Far too often it seems like the federal government runs on autopilot. Federal regulatory inertia ensures that the bureaucratic state, thanks to its unmanageable size and vast powers, tends to resist political change. This is especially true for “independent” agencies like the Consumer Product Safety Commission (CPSC) that are subject to little if any meaningful oversight.

In recent years, the CPSC has become increasingly aggressive. Not content simply to monitor for defective products, the Democratic controlled agency under Barack Obama targeted products that otherwise worked just fine if their misuse, or use by someone under the intended age, could conceivably result in any danger whatsoever.

The agency also proved willing to ignore procedure and engage in vindictive and punitive campaigns against those who questioned its actions.

Consider the case of BuckyBalls, small, spherical magnets intended for use by adults that can also be harmful when swallowed.

Needless to say, you probably shouldn’t swallow magnets. More importantly, you shouldn’t leave them around to be swallowed by young children who don’t know any better.

Citing a few examples of children ingesting magnets and suffering internal damage, the CPSC declared that the warning labels it had previously worked with the company to establish were not enough. The product had to be eradicated.

Despite being relatively low-risk, with just 22 reported incidents of ingested Buckyballs between March 2009 through October 2011, or one for every 100,000 sets sold, the CPSC initiated a recall in 2012. Their lawyers made the ridiculous argument that the labels, which the CPSC had previously approved, were defective because they were only placed on the box the magnets came in, rather than the magnets themselves. And since that was clearly impossible, they asked for the makers of Buckyballs to stop selling their only product.

Before the company could even respond, the CPSC started an underhanded campaign to destroy the company’s distribution network by contacting retailers with vague letters that strongly implied the potential for future enforcement actions. And when Craig Zucker, the creator of Buckyballs, fought back with a humorous PR campaign, the CPSC took the unprecedented step of trying to financially ruin him by naming him personally in its $57 million lawsuit to pay for the desired recall.

For daring to speak back to his bureaucratic overlords, Zucker was expected to pay the administrative costs for destroying his company. He eventually settled with the CPSC, but for a tiny fraction of their demands, just to end the inquisition. But it was far too late for Buckyballs, and the CPSC officially banned the product and all like it entirely from the marketplace.

Yet you can still buy similar magnets from several other companies these days. That’s because the U.S. Court of Appeals for the 10th Circuit threw out the ban on the basis that CPSC stacked its shoddy cost-benefit analysis to reach a desired conclusion.

The magnet overreach is, sadly, not an isolated incident. More recently, the commission has targeted BOB jogging strollers for use of a quick release front wheel that makes for easy storing, such as in a trunk. Like Buckyballs, the product works fine and is not dangerous if used properly. But improper use, such as by pushing the stroller without the wheel fully latched, could possibly, maybe, under some circumstances potentially harm a child.

Even worse is the agency’s attempt to ban certain flame-retardant chemicals, often used in mattresses or furniture, based on faulty claims from environmental activists and despite the EPA already monitoring their use. The Democratic political-appointees overrode the judgment of their own CPSC staff to undertake a first-of-its-kind ban on an entire class of chemicals, which also just happen to be necessary to pass a federally mandated open flame test.

Frustration with these sorts of disproportionate regulatory jihads are partly why voters chose to elect a political outsider in 2016. Whether one agrees with him or not, the way our system works, President Trump should now be able to reshape the leadership of executive agencies to better align them with the vision that won the last election. Yet Senate Democrats have used every procedural trick to slow the process of approving new appointments as much as possible.

In the case of the CPSC, the result is a rogue agency that is still operating well beyond its intended limits.

Acting Chairman Ann Marie Buerkle has been attacked by the Democratic majority on the commission for daring to suggest the agency should prioritize fact-based rulemaking over emotion. The fact that Buerkle is still the lone Republican on the commission more than a year into Trump’s term is emblematic of a broader regulatory problem.

An absence of new leadership is leaving agencies free to continue their Obama-era overreaches well after Obama has left office. This is not how our system is supposed to work. Moreover, these agencies are doing serious damage to American businesses and the economy, all while ignoring their responsibilities to fairly weigh the costs and benefits of proposed regulations without bias.

Andrew F. Quinlan is co-founder and president of the Center for Freedom and Prosperity.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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