The petition filed in this matter is, in my opinion, directed toward a very worthy goal, which I believe is shared by all members of the U.S. Consumer Product Safety Commission ("Commission"). This goal is the improvement of the effectiveness of the Commission's recall process under the Consumer Product Safety Act (CPSA). The Commission is engaged in a comprehensive effort to evaluate its recall process and, based upon the results of this evaluation, make improvements which will enhance its effectiveness.
The petition in this proceeding does not cover or embrace the broad perspective of the Commission's desire to comprehensively examine all potential areas to improve recall effectiveness1. Further, I do not believe the petition is specific enough to meet the requirements of Section 9(c) of the CPSA, 15 U.S.C. �58(c), to support an Advanced Notice of Proposed Rule Making at this time. Fortunately, the procedure sought to be invoked by the petition is not necessary for the Commission to achieve its goal of moving toward better recall effectiveness. The Commission and staff will consider product registration cards along with all other ideas and proposals in its project to significantly improve the effectiveness of the Commission's recall process. The goal of the project, as more fully explained below, is to find something that actually works.
I voted to deny this petition after having considered several factors including the Commission's authority under the CPSA to promulgate such a rule, the broad and indefinite scope of the petition, the likely costs associated with product registration cards, the potential effectiveness of the proposed rule on recalls, and the need to consider product registration cards within the broader context of recall effectiveness.
I will address a number of the issues in this matter which I consider most important and most helpful to our project on recall effectiveness.
The Commission's Authority
The CFA petition raises the question of whether the Commission has the authority under Section 16(b) of the CPSA, 15 U.S.C. �65(b), to require the type of record keeping requested in the petition. The Commission has never promulgated a rule providing for such a requirement, nor has any court ruled on the question. Without specifically deciding this issue in this matter, I assume the Commission does have this authority under the CPSA for purposes of my vote in this matter.
The Scope of the Petition
The petition before the Commission requests that "all manufacturers (or distributors, retailers, or importers) of products intended for children" be required to provide a product registration card. If interpreted broadly, such a rule would encompass a wide variety of products from giveaway toys from fast food restaurants to children's clothing, bedding, art supplies, and toys, which are generally manufactured for children. It might also encompass products that may be used by both children and adults, such as televisions, computers, radios, furniture, kitchen products, and practically any other product. Also, "children" is not defined in the petition.
The many types of products encompassed by the petition have significantly differing useful product lives. Some will last for years; others will be thrown away after their first use. Other products, such as cribs, may be passed from person to person, or given to a thrift store, and the original owner will not know who possesses the product. A one-size-fits-all rule as contemplated by the petition to cover such a broad scope of products is not practicable. A more targeted approach directed to products to be affected could have been more helpful in our effort to find meaningful ways to increase product recall effectiveness. I do not believe the indefinite and overly broad scope of the petition, which the petitioner admits needs considerable study and revision, to be helpful in moving the Commission toward that goal.
The Cost of the Petition Proposal
The Commission Economic Analysis staff provided estimates regarding the costs of certain aspects of the product registration card proposal. However, a more comprehensive analysis would be required under the provisions of the CPSA to promulgate such a rule. Our staff will conduct such an analysis in their study. We should look to find methods of improving recall effectiveness by using resources in a manner which would provide the greatest benefits to consumers.
Improving Recall Effectiveness
I also believe more research is required to better understand consumer activity and whether consumers would return the proposed project registration cards. The evidence presented at the briefing meeting in this matter was not sufficient or comprehensive enough to be persuasive. In general, I am inclined toward the staff's argument that the rate of return on product registration cards will likely be a function of a balance in the consumer's mind among a variety of factors, including time, convenience, effort, and perception of risk. Our staff will be directed to collect all of the data possible on this issue.
I also have serious concerns regarding the petitioner's request to maintain the data for such long periods, considering our mobile society, varying product lifecycles, and other factors which could negate the usefulness of the data. It is clear to me that a 20-year record keeping requirement is too long for many products, particularly products that have a very short useful product life. Further, I agree that the value of the information will diminish with each year. It seems to me that a record keeping period of the effective life of the product or x-number of years, whichever is shorter, would be the correct concept. I cannot see the logic of keeping records which are kept for the purpose of recalling products many years after the products have been used up and discarded.
While the product registration card studies considered by staff and commenters are helpful, they do not provide near the justification necessary to support a rule as broad as that requested by the petitioner without further data.
The Commission's Existing Recall Effectiveness Efforts
The petition comes before the Commission during ongoing comprehensive research on the issue of Recall Effectiveness. Recall effectiveness is a priority for this Commission. We are dedicating significant resources and staff time in an effort to better understand consumer activity, best practices, and ultimately, how the Commission could improve the recall process to improve effectiveness. The Commission's concerted effort includes a comprehensive literature search, and this spring, the Commission will convene a recall effectiveness roundtable that will include CPSC staff, consumer advocates, members of industry, marketing professionals, social scientists, as well as members of academia2. In addition, we are examining how recall effectiveness should be measured, and what measures, or combination of measures, will achieve maximum results.
1I note in this regard that it is the Commission staff's recommendation that we not move forward and grant the petition, but rather that we defer it. This indicates the staff does not believe we need to move forward in this proceeding to further our goal of improving recall effectiveness, and the Commission clearly has the power to move forward with an Advanced Notice of Proposed Rule Making on its own motion at the proper time.
2The Recall Effectiveness Roundtable is tentatively scheduled for May 15, 2003.