As part of the perfect world some believe possible, the eradication of consumer products that have any potential to cause harm seems a wonderful and justifiable goal. As with police, prosecutors and courts, the theory sounds wonderful; who wants little Johnny to scrap his knee and endure pain again?
Walter Olson at Overlawyered has made a cottage industry out of explaining the insanity of trying to create this perfect world, of believing that government can somehow manage to get the system right this time where it has failed so many times before.
It’s not that we shouldn’t want to protect children from serious harm, though only a fool would believe that we can create a harm-free world short of putting every child in a bubble. Some risk is actually useful, and teaches children how to navigate a world as they mature, but the tragedy of a dead child is something no one wants to face.
The problem with the Consumer Product Safety Consumer Improvement Act of 2008 is that the government can’t contain the collateral damage to the very businesses that enrich and facilitate the better aspects our lives. Nancy Lord, Commissioner of the Consumer Products Safety Commissions concedes the point :
Several years ago, a child died after being carried in the company’s product. The agency did an in-depth investigation of the incident but did not find a causal link or a reason to take further action and so notified the company. In 2010, the company was re-contacted by a representative of the agency who stated that we were reinvestigating all infant deaths in slings. According to the business owner, the CPSC representative told her that a recall of her product was likely but we needed to do an investigation first.
In the meantime, she was told to immediately stop sale of the product until the investigation was completed. In response, the company pulled down its website (it being primarily a web-based business) and immediately stopped sale of all its sling products. A date was scheduled for a CPSC representative to come to the company to observe the destruction of the company’s product but the agency backed off until the recall became official. Weeks went by with no further word from the agency. The website remained shut down. The company finally received an email stating that no recall would, in fact, be done. The time between the initial contact and the email closing the investigation was approximately 8 months.
The time frame, 8 months, is lightning fast in the context of government. It’s like some perverse variation on the bible, where a minutes becomes a day, and a day becomes a year. You know, how government employees work “very hard,” yet never seem to get anything done within a time frame that anyone else, in any other job, would considering anything remotely resembling timely. But it’s close enough for government work.
So what happened?
Because this was a very small internet-based business with one type of product, it was not able to last with no sales through the prolonged investigation and was forced to close. The employees lost their jobs and the company owner was forced to default on an SBA loan which she had obtained to expand her business.
The business death penalty. I realize that business is evil to many, though small business is not so evil. I’m as inclined to hate the way business deal with consumers as much as the next guy. But I also realize that without them, I’m back to farming the north forty and sleeping on straw mats. We hate them for being scum, and need them because they’re are scum. This is no homage to business, but a realistic recognition that putting them to death makes our own problems worse.
Yet the CPSC put this business to death, not because it deserved it but by attrition. Lord talks about the lessons learned.
This incident raises a number of important issues. For example, if we have not determined that a product contains a defect or is a substantial product hazard, are we justified in recalling it, based only on the fact that it is associated with a death or serious injury? When is it appropriate to “require” a stop sale during an investigation? Obviously, the answers to these questions need to be made on the basis of the facts in each individual case. As the circumstances of this case demonstrate, an across-the-board inflexible rule does not make the most sense.
It’s always nice to ask questions, but whoever said that knowing the question was halfway to finding a solution was wrong. It’s 3% tops. Given that focus of the CPSC on safety (which would explain why the word appears in its name), the presumption will always be to shut business down, take no risk, let no child be harmed until their work it done. Oh yeah, and let the agency suffer no embarrassment for making the wrong call. Safety first.
The only people who care about the business are the people who own or work for the business. We all care about children. We all feel the horror of a tragedy. To those who endure no loss from the excesses of government safety, exactly like the excesses of security, the government should take no chances. We are only too happy to take no risks when it’s someone else who suffers for our caution.
This incident also illustrates the need for the agency, once it opens an investigation, to manage that investigation to conclusion in an efficient manner.
This is where Nancy Lord proves, conclusively, that she does her job well. She has kept every option for her agency open, while giving the appearance of recognizing that her agency’s delay and mishandling destroyed a business and harmed the lives of those who relied on that business. Innocent lives harmed for nothing because the government couldn’t manage to do its job in an “efficient manner.”
Efficient, of course, doesn’t mean what most people think it does. It’s not prompt. It’s not effective. It is good enough to make the doer satisfied that he could not have done it better, quicker, more whatever. It does not mean that it accomplished the task correctly within a required time frame so that it didn’t leave a trail of dead bodies in its wake.
Lord’s concession that the CPSC failed isn’t a promise that they won’t put another business to death, but rather an admission that the process of doing its job is the death penalty. Eight months is too long for a business to be dormant and survive? What about two months? What about two weeks? Call a business out for being a danger to children and see how well it thrives afterward. There’s very little room to move here, but the duty of the CPSC and existence of an innocent business under scrutiny are incompatible. Something has to give, and it’s not going to be government.
Granted, business has done more than its share to justify scrutiny. Greed is a powerful motivator. So then have we, as nobody should need a warning label telling people not to touch a whirling buzzsaw with their tongue. And if they did, chances are good that they couldn’t read the label anyway. Our belief that we should be entitled to do whatever strikes as convenient at any given moment, with someone else to blame for our own moments of shocking stupidity, is no better than the corporation that manufactures the shiny death trap.
But the government solution, replacing sound judgment with misguided trust in the government to create our perfectly safe and secure world, won’t work either. It doesn’t work with security. It doesn’t work with safety. It just plain doesn’t work. We can stop buying crap from companies that sell needlessly dangerous products. We can stop sticking our tongues against whirling buzzsaws. We can stop expecting government to get it right when they have never been capable of doing so before.
Our beautiful babies will skin their knees. Some miscreant will mug an old lady for a fix. There will never be a world that’s perfectly safe and secure for all. And our lives will be better for it.