By David Michaels
Gretchen Morgenson, the terrific New York Times reporter, has a disturbing piece that describes how the toothless Consumer Products Safety Commission (CPSC) has little ability to force hazardous consumer products of the shelves of toy stores.
The focus of her report is on super powerful miniature toy magnets. They are candy colored and easily eaten by small children. Morgensonâs article is a powerful case for new legislation that gives the CPSC some real power. It is also another piece of evidence documenting how law suits serve as the de facto regulatory system, since our public health agencies donât have adequate tools to force better corporate behavior.
William Finley was almost 4 years old when his grandmother gave him a Magnetix building set for Christmas in 2004. Its colorful, tiny plastic rods, with powerful micro-magnets at each end that gripped shiny ball bearings, made the set a cool construction toy.
A few months later, some of the miniature magnets fell out of their plastic casings. William swallowed them and became seriously ill, according to documents filed in the United States District Court for the Eastern District of California.
He eventually underwent surgery to remove the magnets and mend his intestines: the magnets are so strong that if more than one is swallowed, they do not pass through a childâs digestive system. Instead, they rip through tissue as the magnetic forces draw them together in an tight clump, doctors say.
William Finley wasnât the only child who swallowed these magnets, of course.
The Dec. 8, 2006, edition of the Morbidity and Mortality Weekly Report, a government publication read by health care professionals, analyzed 20 cases of magnet ingestion injury. The analysis found that patients ranged in age from 10 months to 11 and a half years. Diagnoses in three-quarters of the cases included bowel perforations. One in five patients contracted peritonitis after swallowing magnets. The mean hospital stay for these children was 8.7 days.
Among the 20 cases surveyed in the government report, two children swallowed 15 magnets each; the other 18 patients swallowed one to nine. A child in Italy swallowed 60.
In this case, the CPSC actually tried to so something but was stymied by a company that appears to have had little concern for the young children of their customers. As Morgenson points out
It is a disturbingly familiar story. A hot new technology produced cheaply in China creates a highly profitable product for its maker. But if problems arise with the goods, the companies selling them can impede understaffed consumer protection regulators who are hamstrung in their efforts to get the products off the shelves.MEGA Brands, which buys its magnets in China, looks to be just such a company, according to records that the United States Consumer Products Safety Commission provided to Congressional investigators examining problems with magnet toys. Even as the companyâs products were the subject of two voluntary recalls prompted by the commission â one in March 2006 and another on April 17 this year â MEGA Brands delayed answering the governmentâs requests for information, was uncooperative with the commission and violated the terms of one of the recalls, the records show.
Problematic or improperly labeled toys also remained on sale at major retailers well after they were supposed to have been off the shelves.
The CPSC has never been a strong agency; it can mandate product recalls but, especially under the Bush Administration, prefers to negotiate with manufacturers. Under strong leadership, willing to publicly challenge uncooperative manufacturers, the agency could get better results than it does now.
Charged with protecting consumers from faulty or dangerous products, the commission has jurisdiction over 15,000 consumer goods. But its $63 million budget and 420 employees pale in comparison with the size of the industries whose goods it oversees.
By law, the commission has limited powers. While it can force products to be recalled, it typically prefers voluntary recalls because it believes that this course of action gets dangerous products off of store shelves faster. The agency can announce a recall only through a news release that it negotiates with the company involved.
What is going on now is that manufacturers know the CPSC has to negotiate, and is generally unwilling to make a public stink. The manufacturers can delay the process, or even, it seems, simply ignore or lie to the agency.
Documents provided by the Consumer Product Safety Commission to Congressional investigators, however, show that MEGA Brands was uncooperative throughout the recall process.
During March, for example, when the commission first asked the company to participate in a voluntary recall, MEGA Brands refused twice. It said that any problem with magnets in its toys was a so-called small-parts issue and that the sets were properly labeled with warnings that they contained pieces inappropriate for children under 3. (The recommended minimum age has since been changed to 6.)
As the safety commission pushed the company to conduct a voluntary recall, MEGA Brands submitted an incomplete injury report and was uncooperative in providing information to regulators, the documents show.
In April, after the recall was in effect, commission auditors said they found faulty Magnetix products in stores. Over the summer, commission officials requested information about consumer complaints and injury data from MEGA Brands. The C.P.S.C. records show that the company missed multiple deadlines for handing over the data. Frustrated, the commission issued a subpoena for the materials in early November. MEGA Brands was given 20 days to respond, but missed that deadline, according to the documents.
Finally, on Dec. 1, the company submitted the data. It contained stunning news: Beginning in 2004, the company or Rose Art had received 1,500 consumer reports of magnets coming loose from their casings.
Meanwhile, according to Morgenson, the manufacturer has reported paying $13.5 million in law suits, with several additional suits still not settled.
Lawsuits are too late, of course. They work but it would be better for everyone if the kids didnât get injured in the first place. But will the CPSC attempt to force faster recalls so the dangerous products are off the shelves before they injure kids, whose parents then sue? Not likely until after January 2009.
The evidence is that the Bush Administration thinks the CPSC works just fine now, or perhaps is not adequately sympathetic to manufacturers. After all, in March, President Bush nominated Michael Baroody to chair the CPSC. Baroody was the current executive vice president of the National Association of Manufacturers, a trade group whose mission includes "shaping a legislative and regulatory environment" on behalf of manufacturers. Baroodyâs nomination died after it was revealed that NAM gave him a $150,000 severance package.
David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.
I wonder when Americans will get fed up with a Republican government that protects its clients and disregards the public good. I recently revisited Herbert Spencer and was astonished that his worst philosophy hadn't been repudiated. Instead it endures in this Republican regime. Notably the dangerous notion that regulation of every kind is bad for us; that ill people, for instance, are entitled to go to incompetent physicians if they like, and if they discover that a surgeon has maimed them or an internist has poisoned their child, they have the perfect right not to visit him again. In this system, the one being protected isn't the consumer. What happened to government for the people?
Spencer's (and Norquists, and Bush's) "Survival of the Fittest" should be rewritten as "Survival of the Richest" because in a marketplace where the dangerous product is set alongside the safe, the safe practicioner, the safe product, will migrate upwards out of the reach of the ordinary consumer. And in a regulatory system run by the regulated corporation, the public will be less protected than the corporations themselves. Another example of what I call "The Rule Of Accumulated Advantage."