U.S. Senator Jerry Moran (R-Kan.), chairman of the Consumer Protection, Product Safety, Insurance, and Data Security Subcommittee, will convene a hearing entitled "Consumer Product Safety and the Recall Process” on Thursday, October 8th at 10:00 a.m.
The hearing marks the subcommittee's second oversight hearing focused on the Consumer Product Safety Commission (CPSC) following a general oversight hearing held in June. Witnesses are expected to provide testimony on recalls issued by the CPSC and the Commission’s partnerships with industry designed to increase its market surveillance capabilities and remove potentially harmful products from the marketplace as quickly as possible.
• The Honorable Elliot Kaye, Chairman, Consumer Product Safety Commission
• The Honorable Ann Marie Buerkle, Commissioner, Consumer Product Safety Commission
• Mr. Frederick Locker, Partner, Locker Greenberg & Brainin LLP, on behalf of the National Association of Manufacturers
• Mr. Jonathan Gold, Vice President, National Retail Federation
• Ms. Cheryl Falvey, Partner, Crowell & Moring (former CPSC General Counsel)
• Ms. Nancy Cowles, Executive Director, Kids In Danger
Thursday, October 8, 2015
Consumer Protection, Product Safety, Insurance, and Data Security Subcommittee Hearing entitled "Consumer Product Safety and the Recall Process”
This hearing will take place in Senate Russell Office Building, Room 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.
For reporters interested in reserving a seat, please contact the press gallery:
• Periodical Press Gallery – 202-224-0265
• Radio/Television Gallery – 202-224-6421
• Press Photographers Gallery – 202-224-6548
• Daily Press Gallery – 202-224-0241
Individuals with disabilities who require an auxiliary aid or service, including closed captioning service for the webcast hearing, should contact Stephanie Gamache at 202-224-5511 at least three business days in advance of the hearing date.
Chairman Jerry Moran
"This hearing is the Subcommittee’s second of this Congress as it relates to oversight of the Consumer Product Safety Commission, and I am pleased to welcome back both CPSC Chairman Elliot Kaye and Commissioner Ann Marie Buerkle for our first panel today. Later on, we will be joined by a second panel of experts who are intimately involved in the consumer protection community and particularly the issues before us today. "Product safety is not a Republican or Democrat issue – it something we all care about. This hearing will focus on CPSC recalls, the Commission’s efforts to spot emerging hazards and remove potentially dangerous products from the marketplace quickly. Specifically, I look forward to discussing the Retailer Reporting Program, a voluntary program through which participating retailers submit weekly and product-specific incident reports to the Commission. We will also discuss the Commission’s proposed rule on Voluntary Remedial Actions and Guidelines for Voluntary Recall Notices – commonly known as the “Voluntary Recall Rule.” We will also discuss how that proposed rule may impact the longstanding Fast Track Product Recall Program. "CPSC has a long history of success in its mission to keep Americans safe. The Commission’s track record, specifically on consumer product recalls has been marked by innovative thought and engagement with the relevant stakeholders. A prime example of this “out-of-the box” thinking was the creation of the Commission’s Fast Track program in the 1990s, where it instituted alternative recall procedures to work closely with companies to expedite the recall process. The result of this program was to allow for an open exchange of critical information between the Commission and the recalling company and to create needed flexibility to remove potentially-harmful products from shelves more quickly. Ultimately, it was American consumers and their families who benefited. The Ford Foundation and Harvard University named CPSC the winner of the Innovations in American Government Award for its work on this program, and it has received high marks from consumer groups and industry stakeholders alike. "CPSC adopted a similarly innovative approach to its market surveillance and emerging hazards identification activities when it instituted the Retailer Reporting Program more than a decade ago. This program created incentives for participating retailers to hand over detailed and product-specific incident reports to the Commission in exchange for recognition by the Commission that participation in this program satisfied statutory reporting obligations. This recognition was a true benefit to participating companies, as it provided a measure of certainty on how to meet these obligations. In exchange, the Commission gained access to a trove of near real-time data about consumer product trends in the marketplace.
"Recent Commission activity, however, indicates a potential shift with respect to CPSC’s tact on these matters. With respect to Fast Track, recent attempts to advance the proposed voluntary recall rule have drawn overwhelming bipartisan concern that the proposal would unnecessarily delay the recall process. Last year, Senators Casey and Toomey sent a letter to then-Acting Chairman Adler stating that the proposed changes, “seem to jeopardize the efficacy of the existing process, which could increase the risk of harm to consumers.” "In a letter dated May 30, 2014, former CPSC Chairwoman Ann Brown – a Democrat – voiced similar concerns. Chairwoman Brown described the Fast Track program as “hugely successful” resulting in recalls being “announced faster [and] better protecting consumers from injury.” She believed this proposed rule would undermine the Fast Track program, removing incentives for firms to participate in the first place. I ask unanimous consent that these letter be entered into the record.
"Despite these concerns, the voluntary recall rule is explicitly included in the Commission’s FY 2016 Rulemaking agenda and Operating Plan, released just a few weeks ago. This rule would require that the terms of a corrective action plan, once entered into, be legally binding upon the manufacturer and would prohibit them from disclaiming the presence of a product hazard. Previously, the Chairman has indicated that this rule is not a priority for the agency, so I am anxious to hear from the Commissioners what prompted its inclusion on the FY 2016 Rulemaking agenda and discuss the merits of the rule as it pertains to the fundamental objective of the Commission and this Subcommittee: ensuring consumer safety. "The Commission’s current Retailer Reporting Program allows participant firms to report, on a voluntary basis, timely, detailed and product-specific information. The Chairman has often said that he believes the Commission to be a “data-driven agency.” At the same time, some on the Commission have expressed concerns about CPSC’s ability to handle large volumes of product safety data and to make sophisticated safety inferences from this reporting. This summer, CPSC staff went so far as to inform RRP participants that the Commission would no longer consider RRP submissions to satisfy the Commission’s statutory reporting requirements, and that it would no longer accord confidentiality to these reports. The program remains a pilot program, despite having been initiated nearly a decade ago, and there is growing consternation among program participants who want clear guidance from the Commission on its intentions with respect to the RRP.
"It is intuitive that this data could be used to identify trends on emerging product safety hazards and thus the program clearly has the potential to improve consumer safety and save lives. But if the program is not functioning properly and generating positive results – if there is not a clear benefit to the Commission and to program participants – then we ought to have a serious discussion on how to improve it because it’s the Consumers who will ultimately benefit.
"As the Commission weighs its decision, it will be useful to hear directly from Commissioners and other stakeholders today about the CPSC’s data analytics capabilities, and how it can best leverage existing resources, including cooperative partnerships with the private sector, to make critical safety inferences from retailer data.
"Before I turn this over to Ranking Member Senator Blumenthal, I want to reiterate that we all share the common goal of protecting consumers, and on these issues I have mentioned there is a clear and reasonable oversight role for this Subcommittee to provide toward that end. Thank you to all of our witnesses for being here today, I look forward to your testimony and having another productive conversation about protecting the safety of Americans."
Witness Panel 1
The Honorable Elliot KayeChairmanConsumer Product Safety Commission
The Honorable Ann Marie BuerkleCommissionerConsumer Product Safety Commission
Witness Panel 2
Mr. Frederick LockerLocker Greenberg & Brainin LLPon behalf of the National Association of Manufacturers
Mr. Jonathan GoldVice PresidentNational Retail Federation
Ms. Cheryl FalveyPartnerCrowell & Moring (former CPSC General Counsel)
Ms. Nancy CowlesExecutive DirectorKids in Danger