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LESSONS OF FEDERAL LAW: ANALYSIS OF REGULATORY
Informal Versus Formal
Seizure, Injunction, and Recall
Statements of Commissioners Ray and Margolius
(1) What is the measure of exposure of American
consumers to unreasonable product hazards? (2) Which specific categories of products were found
to present such hazards? (3) To what extent does self-regulation by industry
afford adequate protection against such hazards? (4) To what extent do Federal, State, local authori
ties, and (5) to what extent does the common law protect the
consumer against such hazards?
Within the following categories of products, we found a number of makes, models, or types harboring unreasonable hazards to the American consumer: architectural glass, color television sets, fireworks, floor furnaces, glass bottles, high-rise bicycles, hot-water vaporizers, household chemicals, infant furniture, ladders, power tools, protective headgear, rotary lawnmow. ers, toys, unvented gas heaters, and wringer washers. Not all products in each category are unreasonably hazardous. Still other categories which may harbor unreasonable hazards were not investigated in sufficient depth by
Our answers to these questions in summary are as follows:
*We use the term "consumer products" (instead of "household products" as referred to in our enabling law) because that term best describes our statutory mandate and most products which are not now subject to adequate Federal safety regulation. Consumer products include all retail products used by consumers in or around the household, except foods, drugs, cosmetics, motor vehicles, insecticides, firearms, cigarettes, radiological hazards, and certain flammable fabrics.
us to warrant a specific finding that unreasonable hazards exist.
As related to product safety, self-regulation by trade associations and standards groups, drawing upon the resources of professional associations and independent testing laboratories, is legally unenforceable and patently inadequate.
Competitive forces may require management to subordinate safety factors to cost considerations, styling, and other marketing imperatives.
There is a dearth of factors motivating producers toward safety. Only a few of the largest manufacturers have coherent, articulated safety engineering programs. Manufacturers' efforts to obtain data on injuries and on the costs and benefits of design changes that will reduce unreasonable hazards can be charitably described as sketchy and sporadic.
Industry activities to develop safety standards can provide an important forum for marshaling the technical competence necessary for this work, but their voluntary nature inherently inhibits the development of optimal standards.
The consensus principle, which is at the heart of all voluntary standards making, is not effective for elevating safety standards. It permits the least responsible segment of an industry to retard progress in reducing hazards.
The measure of voluntary consumer protection provided by the certification programs of independent laboratories is substantial, but is theoretically flawed by the laboratory's economic dependence on the goodwill of the manufacturer even if the laboratory is nonprofit.
The protection afforded by various seals of approval is no better than the technical competence, product-testing protocols, and independence of the certifier. When an industry association awards the seal, or when it is awarded in return for paid advertising, the seal may convey a deceptive implication of third-party independence. Consumers appear to attribute to such endorsements a significance beyond their specific meaning.
Protection by Law
Consumers assume that the Federal Government exercises broad regulatory authority in the interest of their safety. And yet the short answer to this question is that Federal authority to curb hazards in consumer products is virtually nonexistent.
Federal product safety legislation consists of a series of isolated acts treating specific hazards in narrow
product categories. No Government agency possesses general authority to ban products which harbor unreasonable risks or to require that consumer products conform to minimum safety standards.
Such limited Federal authority as does exist is scattered among many agencies. Jurisdiction over a single category of products may be shared by as many as four different departments or agencies. Moreover, where it exists, Federal product safety regulation is burdened by unnecessary procedural obstacles, circumscribed investigative powers, inadequate and ill-fitting sanctions, bureaucratic lassitude, timid administration, bargain-basement budgets, distorted priorities, and misdirected technical resources.
Nevertheless, where there is adequate authority and administrative support, Federal safety standards programs have demonstrated a capacity for substantially upgrading industry safety practices.
The Federal Government operates no injury data center charged with responsibility for the systematic collection, evaluation, and dissemination of data related to product safety. It has no early-warning system to alert responsible officials in business and Government of suspected areas of latent product risk. Data on the number and nature of injuries from consumer products remain far from satisfactory, despite several revealing probes in the data collection field conducted by us.
Federal law now provides no machinery to enjoin a manufacturer from marketing consumer products that are unreasonably dangerous. There is no way to compel the recall of such products for repair or replacement.
No Federal law provides meaningful criminal penalties for manufacturers who knowingly or willfully market consumer products that create an unreasonable danger to life and health.
No Federal agency has authority to order studies or hearings to determine the presence of an unreasonable hazard in most consumer products; to order the development of standards or to issue regulations to reduce the hazard; to enforce such orders; to evaluate safety standards, tests, and standards-making procedures; to monitor compliance with safety standards; to accredit independent laboratories to check compliance; to require that information on product safety be collected and freely exchanged; to support voluntary or State programs to reduce product hazards; or to conduct programs of training and research in product safety.
State and Local Law
Our studies of State and local laws show a hodgepodge of tragedy-inspired responses to challenges that cannot be met by restricted geographical entities. Local prohibitions against sale of hazardous items cannot be enforced against the retailer across the city