Honestly, I post stories like this anymore just for the historical record. After all this time, all the scandals, all the crimes, all the dissembling, all the callous indifference to human life and well-being, what’s shocking? Someday, when some revisionist tries to reimagine the first decade of this century, as Lord knows some have the 1980’s, I’ll have to go into these archives and pull this up. And re-read every last word to that revisionist. Aloud. And loud.
WASHINGTON, Sept. 1 — In March 2005, the Consumer Product Safety Commission called together the nation’s top safety experts to confront an alarming statistic: 44,000 children riding all terrain vehicles were injured the previous year, nearly 150 of them fatally.National associations of pediatricians, consumer advocates and emergency room doctors were urging the commission to ban sales of adult-size A.T.V.’s for use by children under 16 because the machines were too big and fast for young drivers to control. But when it came time to consider such a step, a staff member whose name did not appear on the meeting agenda unexpectedly weighed in.
“My own view is the situation is not necessarily deteriorating,” said John Gibson Mullan, the agency’s director of compliance and a former lawyer for the A.T.V. industry, according to a recording. The current system of warning labels and other voluntary safety standards was working, he said. “We would need to be very careful about making any changes.”
Robin L. Ingle, then the agency’s hazard statistician and A.T.V. injury expert, was dumbfounded. Her months of research did not support Mr. Mullan’s analysis. Yet she would not get to offer a rebuttal.
“He had hijacked the presentation,” Ms. Ingle said in an interview. “He was distorting the numbers in order to benefit industry and defeat the petition. It was almost like he still worked for them, not us.”
Under the Bush administration, which promised to ease what it viewed as costly rules that placed unnecessary burdens on businesses, industry-friendly officials have been installed at agencies that oversee the nation’s workplaces, food suppliers, environment and consumer goods.
Top officials at the Consumer Product Safety Commission say they have enhanced protections for the American public in recent years. But they have also blocked enforcement actions, weakened industry oversight rules and promoted voluntary compliance over safety mandates, according to interviews with current and former senior agency officials and consumer groups and a review of commission documents.
At a time when imports from China and other Asian countries surged, creating an ever greater oversight challenge, the Bush-appointed commissioners voiced few objections as the already tiny agency — now just 420 workers — was pared almost to the bone.
At the nation’s ports, the handful of agency inspectors are hard pressed to find dangerous cargo before it enters the country; instead, they rely on other federal agents, who mostly act as trademark enforcers, looking for counterfeit Nike sneakers or Duracell batteries.
At the agency’s cramped laboratory, a lone employee is charged with testing suspected defective toys from across the nation. At the nearby headquarters, safety initiatives have been stalled or dropped after dozens of jobs were eliminated in budget cutbacks.
Other workers quit in frustration. The head of the poison prevention unit, for example, resigned when efforts to require inexpensive child-resistant caps on hair care products that had burned toddlers were delayed so industry costs could be weighed against the potential benefit to children.
“Buyer beware — that is all I have to say,” Suzanne Barone, the poison prevention expert, who left in 2005, said.
Like a number of longtime former and current officials at the agency, she said she believes that it is failing to fulfill its mission. “There is only so much that the few people there can do,” she said. “So much damage has been done.”
Agency officials defend their record. “The commission is currently doing more to protect consumers than it has at any prior time in its history,” said Nancy A. Nord, the acting chairwoman. “Even more could be done with greater resources, but the media’s portrayal of a crippled and impotent agency, unable to deal with basic problems, is reckless and just plain wrong.”
Congress intended the agency to protect the public by working with the industry and others to establish voluntary standards. Ms. Nord and industry executives say that system is largely effective, in no small measure because it is in companies’ self-interest to avoid turning out products that cause harm. When hazards arise, Ms. Nord says, she is confident that the agency acts to deal with them appropriately.
For the first time in years, the commission has drawn sustained attention because of the headlines generated in recent months by the seemingly endless recalls of Chinese-made products: Thomas & Friends toy trains, Mattel Sesame Street toys, propane grills, high chairs, computer batteries, lawn trimmers, children’s jewelry and tool kits.
But the agency has hardly been a priority of the Bush administration. The commission’s shrinking budget is just $62 million this year, even though the agency regulates an industry that sells $1.4 trillion annually. The Food and Drug Administration, with a $2 billion budget, spends nearly twice as much monitoring the safety of animal feed and drugs than the Consumer Product Safety Commission spends to ensure the safety of products as diverse as toys, tools and televisions used every day by millions of Americans.
Ms. Nord acknowledges that the agency has to limit its focus; it investigates only 10 percent to 15 percent of the reported injuries or deaths linked to consumer goods; the number of such reports has grown in recent years. But she ticks off achievements: a record number of recalls — 471 products — last year. Increased fines for safety violations. A rise in reports from companies disclosing product safety problems. A new standard to prevent mattress fires, a leading killer, and more mandates under review than ever before.
Consumer advocates say the increased recalls and hazard reports make a different case: that too many flawed products are in the marketplace because the agency is not doing its job.
“Once there is a recall, it is too late,” said Rachel Weintraub, the director of product safety at the Consumer Federation of America. “Consumers are already exposed to the potential harm.”
New Chairman and New Era
Even one of the two current commissioners agrees that the agency is falling short, and warns that it is in peril.
Speaking to lawmakers earlier this year, Thomas H. Moore, that commissioner, said, “The commission can either continue to decline in staff, resources and stature to the point where it is no longer an effective force in consumer protection, or with the support of Congress, it can regain the important place in American society that it was originally designed to have.”
Mr. Moore, who was appointed by President Bill Clinton, has often found himself outvoted in recent years as he pushed for tougher standards or more aggressive enforcement. In his appearance before Congress, he argued that the need for government protection of consumers is greater than ever before.
“It is suggested in some circles that the modern, sophisticated marketplace of today can effectively regulate itself for product safety,” Mr. Moore said. But, he added, “competition and voluntary actions of today’s businessmen do not always suffice to safeguard the public interest.”
Mr. Bush began delivering on his deregulatory agenda soon after arriving in Washington. He named Harold D. Stratton, a former attorney general of New Mexico, to head the consumer protection agency. Created by Congress in 1972 in the fervor of Ralph Nader’s consumer movement, the agency was long seen as an irritant by manufacturers and business groups.
A conservative Republican and a Bush campaign volunteer, Mr. Stratton strongly objected when he was an attorney general to counterparts in other states bringing consumer protection cases, saying they were trying “to impose their own antibusiness, pro-government regulation views.” Later, he was co-founder of a nonprofit group, the Rio Grande Foundation, which says it promotes “individual freedom, limited government, and economic opportunity.”
Soon after becoming commission chairman in 2002, Mr. Stratton told the National Association of Manufacturers that he was determined to “break the barrier of fear” by assuring industry leaders — whose political action committees and executives had just donated millions of dollars to Mr. Bush’s campaign — that a consumer complaint would not automatically result in a product recall. The era of the “federal nanny,” as a Republican commissioner described the agency during the Clinton years, was over.
Many industry officials applaud the administration’s emphasis on encouraging voluntary compliance on safety issues. In a changing marketplace, they argue, mandatory standards would be cumbersome and damaging.
“It would take years to adopt them,” said Charles A. Samuels, a Washington lawyer who represents makers of home appliances.
In 2003, Mr. Stratton moved to reverse an enforcement action started two years earlier against the Daisy Manufacturing Company that sought to force it to remove 7.2 million air-powered BB guns from the market.
The guns were flawed, the agency staff had argued, because a BB could become lodged within the barrel even when the chamber appeared to be empty, a condition that agency research showed had caused at least 15 deaths and 171 serious injuries, most of them involving children.
Citing Daisy’s “precarious financial condition,” Mr. Stratton rejected the recall plan — and the court proceeding that is necessary any time the commission wants to force a company to accept a recall — saying, “I consider this administrative legal proceeding to be burdensome and inefficient.”
In an unusual step, he personally negotiated an agreement with the company to put a bigger warning label on its guns and spend $1.5 million on a safety education campaign. William B. Moran, the administrative law judge hearing the case, condemned Mr. Stratton’s alternative as toothless and said the deal would “create the risk that the public could perceive its decision as driven by its political makeup.” But the commission approved the settlement in a two-to-one vote in November 2003.
Several months later, Mr. Stratton appointed Mr. Mullan the agency’s general counsel. He came from Kirkland & Ellis, a Chicago law firm with a large office in Washington. Under Kenneth W. Starr, the independent counsel who investigated President Clinton, the firm’s Washington office became a magnet for members of the conservative Federalist Society and a hiring pool for the Bush administration.
Among the firm’s lobbying clients was the National Association of Manufacturers. Mr. Mullan had represented General Motors, which he helped defend against claims that fuel tanks on its pickup trucks were flawed and led to side-impact explosions. He also helped represent Polaris, a maker of A.T.V.’s, against consumer commission accusations that it failed to report safety defects in two of its vehicles that had resulted in hundreds of complaints and at least 25 injuries.
Roy Deppa, an engineer who retired last year, said it was a little odd at first to work with Mr. Mullan as a colleague.
“It is like having someone you fought against what you are trying to do then come to your side,” he said.
Not long after Mr. Mullan arrived, he became the agency’s director of compliance. It is one of the safety commission’s highest-profile posts, with oversight of all investigations and enforcement actions.
In that role, he argued against a ban on sales of A.T.V.’s for use by children, and a staff report concurred. Adults could still buy the machines and permit children to ride them, Mr. Mullan said, and the agency did not have enough staff to enforce the mandate. Agreeing, the commission rejected a ban.
Mr. Mullan said he is permitted to participate in agency debates over A.T.V. rules or even enforcement matters related to Polaris, his former client, as long as he was not involved in that specific matter when he represented the company.
“The ethical rules are pretty clear on this,” he said in an interview. “And I think I have been far beyond reproach on these issues.”
Once in his new post, Mr. Mullan helped narrow the requirements for reporting safety defects to the commission, a move long sought by manufacturers. Companies are obligated to notify the agency within 24 hours if they learn that their products could pose a substantial threat to the public. Seeking to better balance industry interests with safeguards for consumers, the commission, with Mr. Mullan’s support, adopted new rules.
Companies would no longer be required to report a product if the risk of injury was considered obvious or predictable, or if misuse played a role. They could also weigh whether the product was no longer in wide use or had not been sold for many years.
Consumer advocates, the nation’s fire marshals and even some former agency employees had objected to the change, citing flawed baby cribs as an example of when a manufacturer improperly blamed misuse or improper assembly for several deaths. The new rules, they said, would let companies hide evidence about such defects.
“I find these proposed revisions not only unnecessary, but potentially dangerous for consumers,” wrote Catherine E. Downs, a former senior official at the agency. “Many in management positions at C.P.S.C. have lost their contact with the consuming public who they intended to serve.”
Agency officials, including Mr. Mullan, rejected those claims, saying all they were doing was clarifying the rules, not relaxing them.
Other agency officials, including Ms. Barone, the project manager for poison prevention, and Art McDonald, the director of the hazard and injury data section, found that priorities had shifted. A database of burns caused by consumer products was closed. And agency officials stopped asking for regular briefings on emerging product hazards, Mr. McDonald said. “There was just a lack of interest,” said Mr. McDonald, who retired in 2004.
Ms. Barone and her staff, after noticing a rise in reported injuries from the active ingredient found in certain powerful hair relaxers, started an effort to require that they be packaged with child-resistant caps.
Unlike other mandates, new rules in involving poison prevention could be set by the agency without conducting a cost-benefit study, according to federal law. But Ms. Barone was told that the economic analysis was being pushed by the White House Office of Management and Budget, agency documents show.
“We are talking one to two cents per package here for something that we know is toxic,” said Ms. Barone, who now works for the F.D.A. “The other option is just to wait for more children to get hurt. It is just kind of sad.”
Enter the Chinese
The cranes that hover like a swarm of giant praying mantises over the piers at the Long Beach, Calif., port are concrete evidence of how global trade has transformed the safety commission’s task in keeping American consumers safe.
The towering cranes lift container after container of goods from China, which sends more products through the neighboring Los Angeles and Long Beach ports than to any others in the United States. In just the last decade, imports of Chinese consumer products nationwide have surged to $246 billion from $62 billion, according to agency statistics. Nearly 20 percent of the consumer products for sale in the country today are Chinese-made, compared to 5 percent in 1997.
And some of them may be dangerous. By law, the commission can mandate safety standards only after voluntary measures have failed. Chinese officials and factory owners have said, however, that they do not feel compelled to meet the voluntary standards.
“Time and again, through the translators, they made clear they did not understand this concept,” said Nick Marchica, an engineer and former agency senior aide. “What they told us was, ‘As far as we are concerned, voluntary means we don’t have to.’ ”
Mr. Marchica said some Chinese products, like electrical extension cords or children’s jewelry, frequently violate the standards. But the consumer agency is handicapped in finding those goods or blocking them from reaching American buyers. The commission has no inspectors at factories overseas. And at ports in the United States, the agency is overwhelmed.
In Los Angeles area ports, through which 15 million truck-size containers move a year, a single agency inspector, working two or three days a week, spot-checks incoming shipments. Agency officials would not permit the inspector to speak with a reporter, but colleagues said her assignment was all but hopeless. “It is completely ineffective,” one agency official said.
Beyond examining only a sliver of the imports, the inspector has few tools in the field to detect problems. The F.D.A., for example, is trying out new equipment at some ports to automatically check if lead is present in food or drugs under inspection. The consumer agency, though, has no such devices in the field. Even if problems turn up, agency inspectors also frequently do not have clear legal authority to seize noncompliant products that violate voluntary standards.
In New York harbor, a safety commission inspector rarely shows up, said two customs officers who check imports to see if they comply with trade laws. Asked recently when he last saw a commission inspector, Ted Fronckowiak, a customs supervisor, responded: “It was around December.”
Agents from Customs and Border Protection do what they can to help. But that usually means simply looking for counterfeit products, instead of goods that might not comply with safety standards. And when products are headed for major retailers, like KB Toys, the agents usually figure they are safe. “We sort of assume they are tending to business,” said Mr. Fronckowiak.
Agency officials blame the small staff for the shortage of inspectors. Back in the 1970s, the safety commission had nearly 1,000 employees, which meant workers in field offices could regularly perform spot checks of factories, warehouses and stores and investigate injuries or accidents, said Martin B. Bennett, an inspector in the New York field office from 1973 until 2002.
“We could handle a lot of products. We could cover the landscape,” he said.
During the Reagan administration, the work force was slashed nearly in half. Under Mr. Bush, it has reached a low of about 420, a 12.5 percent cut since 2002.
Today, 81 field inspectors work out of their homes, compared with a network of field offices with 133 employees in 2002. While agency records show that they have increased the number of on-site investigations into reported deaths or injuries, in 2006 it took much longer — weeks or even months — to determine whether certain products were at fault and to recommend corrective action. The records also show that compliance investigations — to determine if products on the market meet standards — dropped 45 percent from 2003 to 2006.
Mr. Moore, the commissioner appointed by Mr. Clinton, told Congress in March that it would take years to recover from the loss of employees with expertise in toys, fire-related hazards, drowning prevention and chemical risks, among others.
A senior agency official was more blunt. “It is a complete disaster,” said the official, one of nearly a dozen who spoke anonymously because the agency had instructed employees not to talk to reporters. “There is just no other word for it.”
At the agency’s product testing lab, which operates out of a former missile defense radar station in Gaithersburg, Md., the impact of the tight budgets is apparent.
One lab worker used a magnifying glass and a mechanical stop watch to help conduct a fabric flammability experiment — the same equipment she has used for three decades. The toy laboratory, down the hall, is an office so cramped that the only space dedicated to a drop test to see if toys will break into small pieces and cause a choking hazard is the spare space behind the office door. “This is the toy lab for all of America — for all of the United States government!” said Robert L. Hundemer, the one agency employee who routinely tests toys, as he held up his arms in the air. “We do what we can.”
Spurred by the recalls of flawed Chinese-made products, Democrats in Congress, consumer advocates and even industry groups are demanding that the commission be given more power and money to do its job.
Congress has begun by adopting budgets that allow for modest funding increases for the agency next year. The Bush administration proposed more cuts, which would have forced the agency’s staff to shrink still more.
Mr. Stratton stepped down last year to take a job as a product safety lawyer in Washington law firm and the president has yet to replace him. In March, Mr. Bush nominated Michael E. Baroody, but he withdrew after lawmakers attacked his record as a longtime lobbyist for the National Association of Manufacturers. The vacancy has prevented any action on proposed regulations or mandatory recalls. The agency, for example, found a Chinese-made A.T.V. unsafe but could not take it off the market.
Eager for action, several environmental and business groups are pushing for new mandatory standards. The Sierra Club, backed by toymakers, is seeking a ban on lead in children’s jewelry, which the agency has agreed to consider.
And cigarette lighter manufacturers, finding themselves at a competitive disadvantage to Chinese companies that ignore the voluntary standard, are seeking safety rules for lighters. The consumer commission, though, has declined so far to move ahead, saying the 90 injuries and 10 deaths linked to fires caused by defective lighters were not enough to justify the mandate.
Ms. Nord, the acting chairwoman who was appointed in 2005 after working as a lobbyist for Eastman Kodak, has come up with her own reform plan. She wants to gradually increase the cap on civil penalties for violating agency rules to $10 million from $1.8 million. She also wants to give inspectors power to seize or block entry to some unsafe imports at ports.
The agency is also negotiating with toy makers and officials in China to try to ensure that many more products meet United States standards. They would be inspected overseas by independent testing companies, and the costs would be borne by manufacturers or importers.
Patrick MacRoy, the director of the Chicago Health Department’s lead poisoning prevention program, said any move to strengthen the consumer product agency would be welcome. To date, he said, it has lagged state and local health authorities in the effort to remove lead-tainted children’s products from the marketplace.
“It requires a coordinated national response to make sure dangerous products stay off the shelves,” he said. “To date, we haven’t seen that.”