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The Public Isn’t Buying What the CPSC Is Selling

By former CPSC Commissioner Nancy Nord

The U.S. Consumer Product Safety Commission (CPSC) may want to help people sleep better at night, but their actions are more likely to keep people up or give them nightmares.  This past week the CPSC re-announced a recall of portable, adult bed handles because the original announcement garnered such a low response rate—under one percent.  That action and the original recall – done in May, 2014—illustrate how the agency sometimes overuses and misuses the recall system.

Here’s the background.  In May of 2014, the CPSC announced its original recall of portable adult bed handles used to assist people getting in and out of bed.  According to the agency release, these bed handles could shift and create a gap with the mattress; three individuals in adult care facilities became entrapped and died in the gap between the mattress and the handle.  To remedy 113,000 bed handles manufactured between 1994 and 2007, the agency proposed that those who have the bed handles should contact the company to get a set of straps (and 3 pages of instructions) to hold the handles in place.  And, yes, did I mention that they also get a sticker to put on the handle to remind them to use the straps?

The agency has taken a business-as-usual, cookie-cutter approach to a problem that clearly needs more creative thinking to solve.  Bed handles and rails have traditionally been used in health care settings but that is not always true and the products are now available well beyond medical supply stores. The home health care and adult care industries have traditionally not been ones that have had to deal with the CPSC. And while greater availability of products in the general marketplace makes for greater responsibility on the part of providers, safety regulators also have a role to play in reaching out to those it newly seeks to regulate.

The CPSC and the FDA have been consulting on jurisdictional issues.  These products were traditionally used in hospitals and health care facilities, and therefore, were subject to the jurisdiction of the FDA but as people start using them in their homes they become “consumer products” and subject to the jurisdiction of the CPSC. Efforts to craft a safety standard for this product to assure they stay in place and do not create a gap between the handle and the mattress have been going on for over two years, so writing a standard apparently is not necessarily an easy undertaking. 

In the meantime, efforts to encourage an industry safety campaign to educate caregivers – perhaps even giving out safety straps where needed – could go a long way to addressing the risks the agency has identified. But until now, the agency has been absent on that front. An educational program would reach more caregivers and consumers who purchased these handles over the past twenty years in a more effective way than the 2014 press release and the re-announcement.  Yet, the CPSC is wedded to the notion that only a recall and press release will suffice, in spite of evidence to the contrary. [CPSC Commission Adler and I will be on a program before the home health care industry next month addressing enforcement issues in the industry.]

The recall is trying to reach products that are quite old.  The newest bed handles subject to the recall have been in the market for at least eight years and who knows how many are still being used.  The remedy that is proposed also appears to be somewhat hard to accomplish and that may also explain why so few people have responded. The statute states that a recall remedy shall be a “repair,” a “replacement,” or a “refund;” it does not say a “jerry-rig.”  Yet, that is what this feels like.

The CPSC has overused the recall device to the point that even when the agency yells, often people don’t listen.  It has underused its ability to take on and encourage safety campaigns that could help it leverage its resources and broaden its reach.  That is too bad.

Nancy Nord joined OFW Law after completing an eight-year term as a Commissioner on the U.S. Consumer Product Safety Commission, serving from 2005 through 2013.  Ms. Nord was Acting Chairman of the CPSC from July 2006 until June 2009.

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