Using poor science and stale data to support flawed policy

In 2008, after lead-contaminated toys and other products from China wound up on American store shelves and forced product recalls, Congress rushed to pass legislation intended to protect Americans, giving the Consumer Product Safety Commission — a small and relatively unknown federal agency– sweeping new regulatory authority. 

Now, nearly seven years after that scare, it is increasingly clear that the new powers hastily granted to the CPSC in a period of panic and confusion have led to costly regulatory burdens with questionable real benefits to consumers.  In part, this is because the agency I formerly headed is increasingly assuming regulatory authority over matters that it is ill-equipped to manage and which prevent the agency from concentrating on actual product hazards.  

{mosads}A current example is the continuing debate over phthalates, a class of chemicals used in hundreds of consumer products – from medical devices to children’s toys – to increase the flexibility of plastics contained in these products. 

Late last year, the agency proposed to ban permanently the use of certain phthalates in toys and childcare articles. No one would argue against protecting our children. But the problem is that CPSC based its proposed ban on incomplete and obsolete data and failed to take account of substitutes, which have been less studied and which could prove to be of greater risk than the phthalates they replace.

The proposed ban is based on the work of the ad-hoc advisory panel that Congress directed the agency to establish to study the safety of phthalates and phthalate alternatives. For reasons that are unclear, the panel refused to use the last 10 years of chemical exposure data from the Centers for Disease Control. That data represents the most up-to-date information and reflects market changes that have led to decreasing phthalates exposure.  

In addition to using stale data, which skewed its exposure findings, the panel used what it described as a “novel” scientific approach to recommend banning certain phthalates.  It assessed the cumulative impacts from exposure to phthalates in certain products and found that high exposure (again, based on 10-year-old data) to one already-banned phthalate was the main risk factor.  Strangely, the panel then recommended banning another phthalate, which it noted was scientifically safe, solely due to its de minimis contribution to the cumulative risk assessment.   

Beyond concern over the CPSC issuing a regulation based on poor science and old data, this small agency, which focuses primarily on physical and mechanical hazards (think choking hazards in toys and electrical fires in appliances), was hastily thrust into this new role and is now being used as a political pawn in a much broader debate now raging over how to regulate chemicals in the U.S.  If speculative risk is to be the standard, as it is in the CPSC’s proposed ban, then there is no end to what the anti-chemical movement may get the CPSC to ban without any solid causal evidence of consumer exposure or harm.    

As the current majority commissioners themselves acknowledged during the Commission’s 3-2 party-line vote to propose the phthalates ban, the CPSC certainly does not have the financial resources to regulate long-term chemical hazards, to say nothing of its very questionable statutory authority.  This is the mission of other agencies, notably the EPA and FDA.  These are the agencies that should be investigating the health effects of phthalates and taking appropriate regulatory action. 

Unfortunately, the headlines of “dangerous chemicals in toys” are too salacious, and the political expediency of sending the CPSC into the minefield of the chemical oversight debate too attractive.  Such a result dangerously takes away from the agency’s critical mission of protecting consumers from unsafe products. 

Nord is a former commissioner (2005-13) and acting chairman (2006-09) of the Consumer Product Safety Commission. Her blog on safety issues, “Conversations with Consumers,” is at nancynord.net.