Commissioner Nancy A. Nord of the United States Consumer Product Safety Commission (CPSC) says “it’s time to discard the precautionary principle at the CPSC,” referring to work underway as mandated by Congress and the Consumer Product Safety Improvement Act of 2008.
Currently, the CPSC appears to be making decisions to limit or ban a substance based on suspicions that it might be harmful, rather than on firm scientific evidence of risk of adverse effects to health or the environment.
This might sound reasonable on the surface, but in reality, Nord says, decisions and regulations based on considerable scientific uncertainty are “needlessly stringent” and “can be costly and lead to unwelcome consequences.”
Nord claims the adoption of the precautionary principle at CPSC is a departure from the historical practice of “looking at risk and exposure to assess a risk’s reasonableness before adopting safety standards or banning products.”
The chemical industry has reaffirmed its historical commitment to precautionary approaches to health, safety and environmental protection which result in prudent and responsible action in the face of uncertainty. And we agree that extreme interpretations of the precautionary principle would result in unsound approaches to risk assessment and risk management.
Dr. Becker is a board-certified toxicologist and senior director of ACC Regulatory & Technical Affairs.
Time to Discard the Precautionary Principle at the CPSC
Unfortunately, the precautionary principle is alive and well at the Consumer Product Safety Commission (CPSC). Traditionally disfavored by American regulators, the precautionary principle holds that activities or substances suspected of causing harm to the public—even when evidence of harm is lacking—should be limited or banned until safety can be demonstrated. This posture is easy for politicians or regulators to explain to the public, but needlessly stringent regulation can be costly and lead to unwelcome consequences. And the CPSC’s mission is to protect the public from unreasonable risks, not all risks. The Commission’s recent use of the precautionary principle departs from its historic practice of looking at risk and exposure to assess a risk’s reasonableness before adopting safety standards or banning products.
Our past practice of careful risk analysis was laid aside for key actions after Congress passed the Consumer Product Safety Improvement Act of 2008 (CPSIA). A prime example is the Commission’s lead regulation, where the precautionary principle drove out balanced decision making. It remains to be seen whether the Commission will continue down this road as it regulates other chemicals. We will have the opportunity to debate the right approach when the Commission considers phthalate regulation later this year.
While lead exposure can cause serious health problems for children, the mere presence of lead in a product without an exposure route does not present the same risk. But in the CPSIA, Congress adopted the precautionary principle by legislating a cap on lead content in children’s products regardless of any risk of lead exposure.
Congress imposed the cap in three stages. In the first two stages, the cap was set automatically—at 600 parts per million (ppm), then 300 ppm—leaving no leeway for the Commission. In the last stage, Congress imposed a 100 ppm cap unless the Commission determined that the cap was not technologically feasible. To put this in context, a 100 ppm cap means that a product is 99.99% lead free; products that met the 300 ppm cap were already 99.97% lead free. In other words, we were regulating for trace amounts.
It was here that we could have considered risk, exposure, and costs. The agency’s scientists told us that substantial health benefits had already been achieved and that any additional health benefit from further restriction of lead content would be minimal at the very best. And, based on a limited economic analysis, we learned that the lower cap would create significant costs. The Commission’s economics team estimated cost increases likely to come from the cap, but these costs were not seriously considered by the Commission. It was argued that there was no known safe level of lead, an argument that ignored exposure data and insisted that opponents of the excessively stringent lead cap do the impossible by proving a negative.
A few examples demonstrate how prohibitive these costs can be. Recycled plastics and metals in children’s products will have to be abandoned for virgin plastics and metals, raising costs by up to 100%. This is not because these recycled materials have excessive amounts of lead, but because it is impossible to get consistent test results showing compliance. Similarly, heavy redesign and component costs drove a quarter of children’s bike makers to stop selling youth bikes even though there has never been any suggestion that riding a bike exposes a child to lead poisoning. Recognizing the unworkability of the 100 ppm lead cap and after the Commission had acted, Congress exempted bicycles components from the 100 ppm cap three years after enacting the CPSIA.