Five conclusions from NBC News’ year-long investigation into deadly consumer products

By | December 23, 2023

The federal agency charged with protecting the public from dangerous products often knows about dangerous and deadly items for years before taking action.

The Consumer Product Safety Commission, which oversees about 15,000 types of products, is constrained by a system that slowly identifies deaths and limits the federal government’s power over manufacturers, NBC News revealed in a yearlong investigation into the agency.

Manufacturers say limits on the CPSC’s authority are necessary guardrails that protect against government overreach and help promote the development of industry-led voluntary safety standards that are more effective than federal regulations.

But the limitations facing the U.S. consumer product safety system also mean that it could take years or even decades for safety requirements to be implemented.

As that process continues, some of the most vulnerable Americans continue to die from products that both regulators and manufacturers know are dangerous, reporters found: Dozens of babies have died on infant loungers and nursing pillows, and hundreds of toddlers and young children have died. accidentally strangled by the cords of blinds, curtains and awnings.

Here are five lessons from NBC News’ reporting:

1) Mortality reporting is lagging behind

To justify a new rule or a recall of a dangerous product, the CPSC needs evidence that the product poses a risk to consumers — often based on data that is incomplete and can be delayed for years, experts told NBC News.

Death investigations are generally the responsibility of state and local authorities, who do not always describe the role a consumer product may have played in fatal incidents or identify the manufacturer or model of the product. The CPSC has a program that allows medical examiners and coroners to report deaths quickly and directly to the agency, but participation is voluntary and submissions may be incomplete.

This leaves the CPSC dependent on outside sources such as news clips, reports from consumers, health professionals and local officials, and death certificates that are months or even years behind schedule. Under federal law, manufacturers are required to notify the CPSC when they receive information that a product may pose “an unreasonable risk of serious injury or death,” but companies are not always compliant. The CPSC also conducts its own in-depth investigations into some deaths, which are time and labor intensive.

Such obstacles could ultimately delay federal action as well as information reaching the public about dangerous products, NBC News found.

To compile its own count of deaths related to nursing pads and recliners, NBC News used incident data from two CPSC databases, Clearinghouse and SaferProducts.gov. This data is often incomplete and limited, so reporters also relied on hundreds of public records requests and dozens of interviews with family members and attorneys, among others.

The CPSC periodically updates its own counts of product-related injuries and deaths based on new information that comes in long after the fact. In an investigation published this week, NBC News found that at least 440 children ages 8 and younger were accidentally strangled to death by window covering cords between 1973 and 2022, according to a review of CPSC reports and data obtained through a public records request.

Shortly after NBC News published its story, the CPSC published new data showing that there had been more deaths in recent years than the agency had previously reported. At least 16 more children were strangled to death by window cords, bringing the total death toll to at least 456, according to the new data.

2) Federal regulators can wait for a “body count” before taking action

The delay in reporting to the CPSC could have a major impact because the agency may wait to pursue a new safety rule or product recall until it has evidence of people dying or being seriously injured. In practice, that could mean more people will be harmed before officials decide to intervene, said Elliot Kaye, a Democrat who chaired the CPSC from 2014 to 2017 and expressed frustration with that mentality.

“There has to be a count before we can act,” he said in a recent interview. “And then that is often not enough – because there are so many obstacles to overcome.”

Even once the CPSC decides there is sufficient evidence to take action against a product, the agency often begins by singling out one manufacturer at a time, rather than immediately addressing the entire class of products.

For example, in September 2021, the CPSC and The Boppy Company announced a recall of millions of cushion-like infant loungers following the deaths of eight infants – the first time the federal government acknowledged deaths linked to the product. But soon after, the CPSC postponed a broader plan to regulate recliners and other baby cushions.

Yet years earlier, babies had died in incidents involving loungers from other manufacturers. In May, NBC News reported that at least 25 deaths had occurred since 2015, mostly due to infants choking or suffocating after being placed on the pillows against manufacturer’s instructions. Infant lounge chairs sold by at least four other manufacturers were involved in the deaths reported by NBC News.

3) Critics say the CPSC is stymied by federal law

Even when the CPSC decides that a product is so dangerous that federal regulators must intervene, the agency is constrained by laws designed to limit its ability to act on its own.

A federal provision known as Section 6(b) requires the CPSC to consult with manufacturers before releasing information about specific products, even if officials consider the items so dangerous that the agency wants to issue a public warning or pursue a recall. No other federal health or safety agency is similarly limited.

Industry leaders say Section 6(b) – created under the Reagan administration – is a necessary safety net. The measure protects against “the release of incomplete or inaccurate information that causes unnecessary concern and confusion,” Lisa Trofe, executive director of the Juvenile Products Manufacturers Association, said in a statement.

But some Democratic lawmakers and CPSC commissioners are now calling for its repeal, blaming the provision for delaying public warnings about deadly products like baby loungers and treadmills.

“It’s an aberration — it’s an isolated example of industry putting pressure on an agency,” Sen. Richard Blumenthal, D-Conn., said earlier this year. Along with Rep. Jan Schakowsky, D-Ill., Blumenthal has introduced legislation to repeal Section 6(b), but progress remains to be made.

4) CPSC must demonstrate that current standards are inadequate

Another Reagan-era provision gives manufacturers a way to sidestep mandatory safety rules: instead, they can create a voluntary standard.

Voluntary standards are created outside the federal government through a process that can be faster than federal regulations. While the effort is a joint effort, typically involving the CPSC and consumer interests, it is often led or heavily influenced by manufacturers.

If a voluntary standard exists for a product, the CPSC must first determine whether it is effective and widely adopted by manufacturers before the agency can establish mandatory safety requirements.

That could contribute to delays in federal action and make regulators more cautious about pushing for mandatory requirements, current and former CPSC commissioners said. In some cases, regulators will have to wait decades before moving forward with federal rules for common household products, even as young children continue to suffer horrific deaths, NBC News found.

For example, the window coverings industry has regularly updated its voluntary standard for shades, shades and drawstring curtains for years, improving safety in collaboration with the CPSC. But the CPSC ultimately determined that the voluntary standard did not do enough to protect children and issued the first mandatory rules in 2022 — nearly 37 years after the first public warning about the danger.

The industry immediately challenged one of the two new rules, aimed at custom window coverings, saying it was based on faulty analysis and would have disastrous financial consequences for some manufacturers. A federal court agreed that the CPSC had not followed proper procedures and struck down the rule this fall, although the other CPSC rule, targeting ready-made window coverings, remains in effect.

The Window Covering Manufacturers Association, the group that sued the CPSC, said in a recent statement to NBC News that deaths are now “extremely rare” in the U.S. thanks to the industry’s voluntary standard.

The CPSC — which says about nine children a year still strangle themselves to death on window cords — plans to propose a new mandatory rule next year.

5) Deaths can lead to action, but it takes time

Despite the regulatory barriers it faces, the CPSC has increased its push for mandatory regulations and unilateral warnings about product hazards.

“While reporting delays and regulatory requirements can sometimes significantly lengthen the rule-writing process, the agency is committed to using all its authority to protect consumers,” the CPSC said in a statement.

In some cases, the CPSC’s action was prompted by reporting, moves by lawmakers and pressure from grieving parents.

This summer, NBC News reported that at least 162 babies under one year old had died in incidents involving nursing pillows since 2007, but there were no federal safety regulations for the popular baby product. The babies typically died of suffocation or suffocation after being placed to sleep on the pillows, which is contrary to the manufacturer’s instructions.

The months-long investigation revealed a significantly higher number of deaths linked to nursing pillows than the CPSC had publicly disclosed. To compile and confirm the death count, NBC News relied on autopsies, death certificates, police reports and Child Welfare and Health Department data obtained through Freedom of Information Act requests.

NBC News took a similar approach last spring in its investigation into child loungers, which also revealed more deaths than the CPSC had previously disclosed.

The CPSC recently began pursuing the first mandatory federal safety rules for nursing pillows and infant loungers, which will require significant design changes to both products with the goal of making them safer. The proposals are now undergoing a lengthy regulatory process before they are finalized, and could take years to come into effect.

This article was originally published on NBCNews.com

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