Can the CPSC Save Christmas?

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With supply shortages and product safety plaguing this holiday season, legislators and advocates turn to the CPSC.

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Parents across the United States rely on regulation and industry standards to keep their children’s toys safe. Recent supply chain troubles and toy safety issues, however, are drawing attention to potential safety shortcomings in some toys.

Consumer advocates and legislators are looking to the U.S. Consumer Product Safety Commission (CPSC) for solutions, but the small independent agency may lack the tools necessary to protect consumers fully.

In 2020, toy-related incidents involving children resulted in nearly 150,000 injuries that required emergency department visits and nine deaths. The CPSC reports that most of the deaths were associated with choking on small parts of toys.

Button batteries—small batteries often found in TV remotes, light-up shoes, and watches—are under particular scrutiny following the death of 18-month-old Reese Hamsmith, who died after swallowing a button battery.

In one recent recall, a flashlight containing button batteries was labeled an ingestion and choking hazard. A children’s foundation distributed this toy to hospitals, which resulted in one child requiring surgery to remove a swallowed battery.

Reese’s Law, introduced by U.S. Senators Marsha Blackburn (R-Tenn.) and Richard Blumenthal (D-Conn.), would task the CPSC with creating regulations to prevent further button battery-related injury or death.

The CPSC has historically relied on close collaboration with the manufacturing industry to allow the small agency to regulate the thousands of consumer products under its purview. Reese’s Law, for example would allow the CPSC to adopt existing voluntary industry standards into law.

With new Biden appointees, the CPSC seems poised to step up its enforcement. The agency recently sued Amazon because it lacks the power to force recalls without going to court. In another matter, the CPSC also used public pressure to convince Peloton to issue a recall after a child died following a treadmill accident.

Despite these recent actions targeting Amazon and Peloton, the CPSC faces several roadblocks that leave consumers vulnerable and weaken the agency, according to consumer safety advocates.

The CPSC usually has five commissioners. Currently, only four commissioners—two Democrats and two Republicans—are in office as the remaining Democratic nominee awaits confirmation hearings. Congress has been slow to confirm appointees, causing last-minute changes to the agency’s annual plan. The CPSC has not had a full commission since 2019.

In addition, consumer advocates say that the CPSC is hobbled by a unique statutory provision—section 6(b) of the Consumer Product Safety Act—that prohibits the CPSC from informing the public of safety concerns before ensuring that the information is fair and accurate. Advocates argue Section 6(b) permits companies to hide safety hazards and causes consumer confusion.

In recent years, Democratic CPSC commissioners have repeatedly asked Congress for the removal of Section 6(b), with one commissioner claiming that “people die because of Section 6(b),” and another arguing that no other federal agency has an equivalent to Section 6(b).

Recently, U.S. Senator Richard Blumenthal (D-Conn,) and U.S. Representatives Jan Schakowsky (D-Ill.) and Bobby L. Rush (D-Ill.) introduced legislation to eliminate Section 6(b) entirely.

Manufacturing industry groups defend Section 6(b) as a critical balancing tool that improves consumer safety by encouraging voluntary disclosure, fostering the collaborative relationship that the CPSC has encouraged, and preventing the CPSC from spreading misinformation.

Supply chain issues and online retailers introduce yet another danger to consumer safety that the CPSC must confront. Consumer advocates claim that consumers are more likely to fall for counterfeit products when shopping online and that counterfeit toys may be made using dangerous chemicals or with small parts that create choking hazards.

The counterfeit toy problem may be magnified by the CPSC’s decision in 2020 to withdraw port inspectors due to COVID-19 exposure concerns, even as online shopping boomed. Although inspectors have now returned to ports, the CPSC has been criticized for failing to address the potential impact of counterfeit goods entering the United States.

The CPSC recently issued a warning to consumers that counterfeit producers may take advantage of toy shortages to sell dangerous products to frantic consumers. Senator Blumenthal has linked the possible dangers of counterfeit goods with Section 6(b), arguing that this provision prevents the CPSC from warning consumers about dangerous counterfeit goods.

Overcoming these challenges may be vital for the CPSC’s effectiveness as an agency and for ensuring consumer safety, both during the holidays and beyond. Early signs point to the possibility of a more aggressive watchdog emerging under President Biden, but consumer advocates continue to push legislators to enable CPSC to foster a safer market for toys and other consumer goods.