Federal (dis)services: skipping product inspections and shielding corporations from legal accountability

cpsctoypolice-300x158As rough holidays rumble into Americans’ lives, federal lawmakers and regulators seem to be going out of their way to be of disservice to constituents — by quietly skipping crucial inspections of imported toys and other consumer goods or noisily promoting corporate legal immunity while blocking pandemic relief for tens of millions of jobless workers and others desperate for help.

Let’s start with the peril that untold numbers of tiny tots and others may be subject to, due to little-publicized decisions by the Consumer Product Safety Commission (CPSC). As USA Today reported:

“The federal safety inspectors who protect kids from dangerous and deadly toys were not standing guard for nearly six months while this year’s holiday gifts entered the U.S. by the shipload.  Princess palaces and playhouses, water guns and tricycles landed on store shelves and front doorsteps without the usual security checks for lead, chemicals or choking hazards. Government leaders had secretly sent home the nation’s toy police. The Consumer Product Safety Commission pulled its inspectors from ports around the country in mid-March because of the threat of Covid-19. Leaders of the federal agency made the decision in private, without a warning to consumers or full disclosure to Congress, then continued the shutdown at the ports and a government testing laboratory until September, USA TODAY has found. That included spring and summer months that were their inspectors’ busiest last year.”

Now, common sense, decency, and a sense of caution for federal employees might have been good reasons to yank CPSC inspectors back to remote employ — for a time. At the same time, though, outdoor port facilities did not stop their heavy duties. The newspaper reported that “Big-name national retailers and distribution companies have imported tens of thousands of shipments during the pandemic.” And let’s recall that the federal Centers for Disease Control and Prevention by May had shifted its guidelines about the risks of coronavirus transmission due to contacts with surfaces and goods (such as groceries).

Absent the consumer goods inspectors, what occurred? As USA Today found:

“The CPSC watchdogs are supposed to intercept bad toys and other household products before they reach the market … [But] The CPSC did not flag a single toy at the ports between June and July for poisonous lead levels, one of the most frequent violations, internal records show. In August, port inspectors reported their total monthly activity amounted to 47 screenings for all hazards – less than 2% of a typical month before the pandemic hit. As of this month, the records show inspectors still were not working in five of the 18 ports they normally patrol, including major commerce hubs in Chicago, New York and Savannah, Georgia. As companies funneled more goods into the country’s busiest ports every week, the CPSC failed to disclose how few violations it was catching. After January, it stopped posting that information online, a list updated this week only after requests from USA Today. Records and internal documents show that even after returning to the ports and reopening its testing laboratory, the CPSC still has identified fewer safety violations than usual for serious threats. Violations that saw a dramatic drop-off this September compared to last include toys with small parts, which can choke toddlers, and children’s products with hazardous levels of chemical phthalates.”

Seeking safer holiday gifts, especially for kids

Grownups may wish to police kids’ gift with greater vigor this season. They may wish to beware of dangers that shoddy and risky products can pose for youngsters, sending almost a quarter-million kids to hospital emergency rooms for treatment of toy-related harms and, sadly, a dozen or so deaths annually. Be wary of toys or their parts that can pose choking hazards. And though boys, especially, beg to start early to become mobile, scooters, tricycles, and even bicycles cause a chunk of toy-related collisions and other mishaps that send kids to ERs.

Consumer safety officials warn that parents may rue their buck-saving plans if cheaper toys they buy from shady or overseas sellers turn out to be unsafe or poor quality. Adults also need to scrutinize batteries and magnets that are big parts of many products for kids these days. Batteries can overheat, burn, and explode, while magnets get detached and become hazards when ingested.

Even with sensible and heightened precautions, however, consumers may be vulnerable to greater product risks this year, because, as USA Today reported:

 “Parents cannot be expected to find problems the government has missed. Lead paint on a child’s toy is not visible. Parents are not equipped to run fire resistance testing on youth pajamas. And they should be able to trust that products on store shelves marketed for children younger than three years will not choke them. Should consumers notice any problems, experts say to immediately report them to a CPSC website where such complaints are publicly posted: saferproducts.gov.”

Major retailers insist they run their own, separate safety and quality assurance programs — though USA Today reported that many familiar, giant outlets, with huge product volumes, also struggle with problem goods. The consumer agency says it will increase its monitoring and will push for recalls if it detects issues with toys or other goods. That, safety advocates say, may occur too late, especially if youngsters or others suffer harms from risky products that slipped into the country, sans inspection. By the way, hazardous products abound and they can be tougher to get rid of than a bad penny.

GOP obeisance to corporations

So, let’s also talk about the stubborn and harmful conduct of the Republican-controlled U.S. Senate, led by Majority Leader Mitch McConnell. The powerful Kentuckian has stymied efforts for months now to help Americans slammed by the Covid-19 pandemic and its concurrent economic mess. McConnell has been frank: He will allow consideration of coronavirus-related assistance plans, only if lawmakers also grant corporations and health providers sweeping legal immunity from potential pandemic liability lawsuits. His federal shields would come atop those already granted, meaning that only cases potentially involving the most extreme wrongdoing could be pursued in the civil justice system.

While he also has pressed ahead in getting partisan and too often poorly qualified judicial candidates confirmed to the federal bench, McConnell and his GOP colleagues have ignored the dire circumstances in which millions of Americans struggle. As the year ends, an array of pandemic relief programs, including unemployment assistance and protections against eviction, expire. And in the meantime, the economy is sliding and the rolls of the jobless and hungry spike.

McConnell and pals have been unmoved, though he has offered a gambit, with a shorter-term liability shield for companies, in exchange for a pandemic relief package that is shrunken and short.

Wow.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them by defective and dangerous products. Sadly, in an ugly and unacceptable 2020, the pandemic has amply shown why we’ll also need to add to the ways that the public can be injured to include rotten action and inaction by federal policy makers and regulators.

Keep it simple and safe

Pediatricians earlier have offered wise counsel about holiday gift giving for kids, which now may provide them sadly needed protection, as I have noted before. The kid specialists have said this:

Look for simple, tried-and-true toys. Items like dolls, cars, blocks, crayons, and easy games may be more beneficial to youngsters than blinking, whirring, flashing, e-gizmos, says the American Academy of Pediatrics, a group representing more than 60,000 doctors who care for kids. The group said in a detailed policy guidance that youngsters need to learn to be social and to stretch their imaginations. Toys that are basic, sturdy, and safe help them do this more so than expensive, complex products.”

Lawmakers in Washington also could take a lesson about keeping things simple: Your constituents need help, and they should get the priority over your sucking up to wealthy corporations, right? Judges and juries, senators may need reminding, can be deep, smart, and thoughtful. No matter how political partisans may try to run down plaintiff attorneys (like me), it is a hard, cold fact that lawyers pursuing liability cases related to the pandemic will also need to deal with the lived experiences of judges and juries. Translation: They know the difficulties the world has endured, and they will take this in account when hearing cases, likely making the Majority Leader’s fears of a lawsuit-award avalanche as fictional as the Grinch.

What is real is the misery that afflicts all too many Americans due to the pandemic. They need help and support. The health system needs funding, including for states to carry out what will be a giant coronavirus vaccination program. We’ve got a lot of work to do and we need the obstructionists to get out of the way.

Photo credit: CPSC ‘toy police’ at work, as shown in earlier, agency video
Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm
Contact Information