testing, retooling, or related expenditures necessitated by safety improvements.

TECHNICAL AID

BY GOVERNMENT

WE RECOMMEND, upon enactment of a comprehensive Consumer Product Safety Act, that a method be developed whereby technical experts from any Federal agency, other than those with responsibility for evaluating the adequacy of industry standards and testing programs, would be authorized to participate in voluntary safety standards activities.

Often nongovernmental programs for the development of safety standards are deprived of counsel from consumers, who do not have the time, financial resources, or technical expertise to contribute. Many Government employees do have the necessary expert technical knowledge. But participation could impair their objectivity where their duties involve investigating or evaluating the adequacy of standards so developed. Loss of that objectivity would, in turn, deprive the Federal Government of its only means of independently determining appropriate public safety levels.

However, if the Congress chooses to enact a comprehensive Consumer Product Safety Act, centralizing independence and responsibility for consumer safety in an agency such as we recommend and if Federal employees with responsibility for investigating or evaluating private standards and programs do not participate in such advisory programs, continuing objectivity could be assured.

When the occasion warrants a contribution of the time and competence of Federal personnel, their participation might then give consumers a more effective voice in private safety programs. An Executive order authorizing such participation would resolve the doubts of agency heads who refrain from supporting private safety programs to avoid possible conflicts of interests.

APPLIED RESEARCH

WE RECOMMEND that the Consumer Product Safety Commission include a laboratory facility to conduct safety research, to cooperate with other Federal agencies in supporting safety research, and to develop technical information for use by manufacturers and standardmaking groups.

A laboratory facility is essential if staff scientists and engineers are to keep current with developments in science and technology, through the process of con

ducting their own research in product safety. The laboratory will also serve as a resource for exchanging technical information.

Many manufacturers, lacking resources for widescale research and development, cannot incorporate in products what they do not have or know. Federal support of developmental research and distribution of technical safety information can be expected to upgrade the general level of safety in consumer products, to foster vigorous competition, and to give every possible assistance to small producers.

Information, including trade secrets, essential to alleviating undue risks should be ruled in the public domain for this purpose, subject to fair compensation. When manufacturers lack such information, safety standards may unduly burden them. When standards committees are without such data, the product of their efforts is necessarily incomplete.

FEDERAL PURCHASES

WE RECOMMEND that the Federal Government, through its purchasing and insuring agents, utilize its market influence by looking to established safety standards and, wherever practicable, new safety designs in selecting products for use, and that Federal agencies provide both manufacturers and consumers with acquired information about hazards in consumer products.

Federal purchases of consumer products by the General Services Administration alone exceed one-half billion dollars annually. Federal purchasing and insuring agents may overlook established safety considerations for consumer products, to the consequent distress of Federal employees and expense of taxpayers. With the establishment of a Federal authority to develop safety standards for consumer products, it will be even more important that they be observed in Federal purchasing.

Furthermore, Federal purchasing power could appropriately be used to stimulate the design and production of products which exceed minimum safety standards. The Consumer Product Safety Commission can recommend products suitable for such purchase in its annual reports to Congress.

Contracts for Federal offices and hospitals, federally insured and dependents' housing, should similarly be revised to observe Federal safety standards applicable to materials and fixtures.

Purchasing agents acquire information or have access to data which guide specifications for bids from manufacturers. Agencies could alert consumers to products which they know fail to meet safety standards. Release of such information can be expected to stimulate manufacturers to eliminate publicized hazards.

PRIVATE ACTIONS

BY CONSUMERS

WE RECOMMEND that injured consumers be permitted to file claims for treble damages, as well as class actions, in the district courts of the United States against manufacturers who knowingly or willfully violate Federal consumer product safety standards.

Under the antitrust laws and related Federal procedures, claimants may file either individual or class suits in behalf of all parties injured by illegal restraints of trade. The principle applies with equal force and logic to persons injured through a manufacturer's intentional disregard of a Federal product safety standard. Inadvertent error would not give rise to treble damage relief.

At present, because of the high cost of marshaling technical evidence, it is not practical for consumers to press claims against a manufacturer unless the damages are substantial. The use of class actions can be expected to improve this situation, at least where intentional conduct caused the injury. Similarly, some manufacturers may find it less expensive to defend damage claims, even those with merit, than to arrange for the prospective elimination of the source of injury. Allowing injured consumers to sue for three times their damages should tend to ameliorate this condition.

Even the prospect of class suits and treble damages is likely to encourage manufacturers to market products that are not unreasonably dangerous to life and health. Such statutory redress will add powerful private support to public safety programs.

FAIR COMPENSATION
FOR INJURY

WE RECOMMEND that the doctrine of strict tort liability be applied uniformly in State and Federal courts to enable a consumer injured by a product in defective condition to obtain fair compensation, and that State legislatures modify obsolete statutory provisions which unduly impinge on the consumer's right of redress for injury.

Modern technology and mass marketing have superseded the economy that molded legal conventions a century ago. These conventions, which still bind many court decisions and legal codes, were formed when young industry needed protection against harassment. Today, however, the consumer is relatively defenseless against defective products while the manufacturer is better able to correct defects and defend against claims of injury.

Widespread adoption of the theory of strict tort liability, as set forth by the Restatement (Second) Torts and expanded by judicial interpretation, would avoid for the consumer some of the traditionally troublesome aspects of the law, such as contributory negligence, due care, and privity. His burden of proof is eased somewhat he must show that his injuries resulted from a product which was defective when it left the seller's control. The defect may be in the design, the construction, or the inadequacy of accompanying warnings and instructions.

Other inequities affecting a consumer's right to redress are perpetuated by specific legislative enactments in the States regarding jurisdiction, ceilings on recovery, small claims actions, and certain other matters. The Uniform Commercial Code, adopted by 49 States, incorporates several outdated rules pertaining to privity, disclaimers, requirements of notice to the manufacturer, and statutes of limitations.

Since recovery by the consumer of fair compensation should not be made to depend on formal differences in the theory under which a suit is brought, these legislative provisions should be made consistent with strict tort liability.

STATE AND LOCAL PARTICIPATION

WE RECOMMEND that the Consumer Product Safety Commission have authority to support States and localities in product safety activities or projects in surveillance, injury reporting, hazard reduction, research, and training.

In the belief that responsibility is borne best when shared, that authority is most respected when decentralized, and that participation is most enthusiastic when broad-based, we hope to see States and localities develop qualified personnel and agencies to assist in reducing product risks. The quantity of consumer products and their diversity are beyond the ability of a single national authority to comprehend: it is far better to have supplementary authorities concerned with product safety, provided their standards of performance and safety are consistent with Federal efforts and requirements.

As States and municipalities traditionally have served to adapt national programs to unusual local conditions, they have also been a source of original and innovative techniques and ideas in legislation and public administration. They provide an indispensable channel and source for the feedback of information about product safety and the effect of safety regulations.

Given guidance and financial support, States, counties, and municipalities offer a Federal agency an ideal laboratory for testing methods and policies as well as a critical supplementary force to check for compliance with consumer product safety standards.

FEDERAL PREEMPTION

WE RECOMMEND that a mandatory Federal safety standard for a consumer product preempt any State or local standard, with appropriate provision for exemption where clear and compelling conditions in the State make it necessary.

States seldom impose safety standards for consumer products. Where requirements apply to product safety, these vary considerably. For this reason, many manufacturers cannot produce for a national market except by designing different models for individual States. Ultimately, consumers pay the wasteful cost of several models being produced where one would do.

With a provision for exemption of State regulations that do not unduly burden interstate commerce, national safety standards for unreasonably hazardous consumer products can be expected to enhance protection for the public and conserve time, money, effort, and resources. At the same time, the possibility of exemptions will leave States free to develop innovative safety methods and to satisfy unusual local needs.

IMPORTED PRODUCTS

WE RECOMMEND that consumer products imported for sale into the United States be denied entry if they violate Federal consumer product safety standards or regulations or are deemed to be unreasonably hazardous. As a condition of entry for imported products, foreign manufacturers should designate a responsible agent in this country and should be amenable to inspection on the same basis as domestic manufacturers.

The voluntary safety standards of responsible American manufacturers may not be observed consistently by manufacturers of imported products. Control of imported products should be at port of entry, where inspections can be more effectively conducted than at

retail establishments. To preclude injury to American buyers of foreign goods, imports should comply with appropriate Federal safety standards and be subject to approval by an accredited laboratory on the same terms as domestic goods, where ordered by the Consumer Product Safety Commission.

Consumers who suffer physical harm from imported goods frequently are without recourse against the manufacturers. Accordingly, importers must have a designated financial agent in the United States to respond in damages for injuries associated with defective products they bring into the country.

WORLD RESPONSIBILITY

WE RECOMMEND that the Government of the United States close the gap in legislative authority which now exists between this Nation and other industrial countries of the world and resolve to eliminate the needless waste of life and other valued resources caused by unsafe consumer products. We further recommend that this Nation lend support to international safety standards development and that it prohibit the export of hazardous products to other countries.

Many industrial nations with which we competeJapan, the United Kingdom, Canada, West Germany, and Sweden-are committed by legislation to national product safety programs more comprehensive than that of the United States.

Private international safety standards, long neglected, are important to American consumers. Such standards could improve the safety of imports, prevent unfair international competition, and influence domestic safety standards. Government support is warranted provided Federal authorities oversee the protection of consumer interests and observance of fair procedures.

Federal consumer product safety standards should apply to exports as well as to products for domestic sale. To indicate our concern for, and to promote the wellbeing of consumers in all nations with which we deal, the export of goods that do not meet such standards should be prohibited unless waiver is obtained from a responsible official of the country of destination. In good conscience, we must extend to all the protection we expect at home.

During its two-year life, the Commission, under the direction of Chairman Elkind, has had every possible opportunity for free and open discussion to state our individual viewpoints on any issue. As a result we reached substantial agreement on many issues which has resulted in a constructive report which is productive and should provide a broad basis for discussion and the development of a program for better product safety. We are all agreed that there is a real need for the development of safer products. The immediate question is the best approach to achieve that objective.

I would like to outline briefly some of my views for the consideration of those who may wish to follow this work with appropriate action.

The report reflects that consumers are exposed to excessive risks in the home, and that these risks are primarily the fault of manufacturers and can be substantially reduced by a new program of writing safety standards. I feel that there are additional facets to the problem.

Of the over twenty million injuries that occur each year in the home, we found that such items as stairs, floors, windows, doors and outside structures rate high in regard to accident involvement....

The National Health Survey indicates falls account for about one third of all accidents....

Sport and recreation equipment are involved in over four million injuries to youngsters....

Knives commonly used in the home are a major cause of accidents.

It is important that we do not mislead by implying that a large part of household accidents can be eliminated by writing new programs for product safety standards.

It is my considered opinion that government presence is necessary for development of safer consumer products, but not for the primary reasons generated in our report. Government presence is necessary for these specific purposes:

Injuries can occur when products are designed to good standards but are poorly made.

Injuries can occur when products are designed to good standards and are well made if they are poorly maintained or serviced.

Injuries can occur if products are designed to good standards, are carefully made, and properly serviced if they are improperly used.

While studying injury problems, it is difficult to maintain perspective when the tragedy of a terrible personal injury is revealed. The facts, however, are simply that we do not know enough about the basic causes of household injuries. We must know more.

The primary uses of accurate information as to injury causation are: (a) to inform product developers of the hazards that are inherent in existing methods of product development, and by this identification establish goals for the creative response that they can then make. (b) to inform consumers of the hazards involved in the use of products so they can make more effective choices and safer usage of products. (c) to trigger the development of standards where adequate response is not made on an individual basis to eliminate identified hazards, and (d) to permit prompt resolution of emergency situations involving hazardous products which only the government can do. All of these are proper functions of government which will provide flexibility and incentive to industry.

When standards are required better standards will result if the best talents in government and industry are used.

For a good number of years competent and dedicated technical people have been developing consumer product safety standards on a voluntary basis. Working through various technical societies and standards making organizations, they have done a remarkable job of decreasing household injuries.

As an illustration, Americans, 200 million of them, are exposed to billions of electrical systems-from switches to toasters-every day. Yet electrical accidents, directly related to products made to poor standards are almost non-existent.

These are some fundamental weaknesses that can be eliminated by government presence. If there has been a weakness in the voluntary system, historically, it is that voluntary standards development must properly

take place under the restraint of the antitrust laws. Government presence is required in the public interest. The presence of government working with standards making groups should lead to broader participation by industry and more effective results. If a fully cooperative mechanism were in being (a Consumer Product Safety Commission) the technical resources of the government could be oriented more strongly to assist private voluntary standards development, and at the same time there would be greater incentive for the private sector to contribute resources for the development of information for standards that the government might promulgate.

Access to the national marketplace unfettered by the parochial limitations of State and local regulations is undoubtedly one of the major incentives that can be provided for the development of safe products. We recommend this through the exercise of the Federal government's power of preemption. Since many of the injuries, however, relate to structures and materials it would appear that this power should extend further than to standards made mandatory by government regulation.

Most international safety standards are developed by private, non-governmental international organizations with the American National Standards Institute responsible for representing the U.S. interest. Nevertheless, the Federal government has a major concern in assuring that internationally developed safety standards are favorable to U.S. trade policy as well as other aspects. The incentives to a particular industry to provide adequate U.S. representation seldom match the interests of the nation as a whole. It seems clear that the Federal government must be increasingly concerned with assuring that U.S. interests are adequately represented.

In summary the conclusion of the Commission that there is a need for Federal presence in the area of product safety is sound, but I believe that the proposals I suggest are desirable in realizing our objectives.

The acceptability and use of a voluntary standard depends upon its intrinsic merit and upon the trust in the organization promulgating the standard which rests in the organization's objectivity and freedom from the pressures of special interests.

At the same time confidence in Government standards, whether mandatory or for procurement or procedural purposes, depends upon trust in the competence of those promulgating the standards and their freedom from political bias. These essential trusts can be enhanced on both sides if there is knowledge that the standards from each sector evolve through effective cooperation with the other.