Federal Government Regulates First, Then Rationalizes Later Print
By Timothy H. Lee
Thursday, February 12 2015
What was the CPSC attempting to hide, and why did it so fear the sunlight of public scrutiny?

By now, Americans are all too familiar with the rogue character of executive branch agencies under the Obama Administration. 

Already this year, we've witnessed Obama's Federal Communications Commission (FCC) move toward reclassification as a "public utility" an Internet that had transformed human existence precisely due to the federal government's light-touch regulatory approach dating back to the Clinton Administration. 

Similarly, we've witnessed such extreme lawlessness from other agencies like the Environmental Protection Agency (EPA) and National Labor Relations Board (NLRB) that the United States Supreme Court has issued an unprecedented string of unanimous decisions overturning those agencies' actions. 

Now, add to that list the Consumer Product Safety Commission (CPSC). 

The same government agency that once considered saving Americans from killer Christmas lights is at it once again. 

Specifically, the CPSC voted late last year to proceed with draft rulemaking that would ban from some products a class of chemicals called phthalates.

Phthalates are a common everyday substance used in a variety of products to make them more pliable and durable. Accordingly, this is simply another attempt by an administrative agency to penalize a wide swath of American consumers on behalf of a narrow, activist special interest. 

Among other flaws, the decision by CPSC to regulate those substances rested upon the basis of outdated data and opaque reasoning, rather than sound science and straightforward common sense.  In fact, the decision was so objectionable that one of the Commission’s very own came out publicly against it. 

Proof of the CPSC’s faulty work is obvious.  The report on which the CPSC apparently hopes to issue a final rule did not use the newest data available, even though they possessed every opportunity to do so.  In fact, the report failed to take into account four years of data that was available before the final report was published and the recommendations were made. 

That isn't an intelligent move from an agency that claims be “data and science-driven.”

In addition to the outdated, obsolete data on which the CPSC relies, the circumstances under which the report was written also raise several red flags.  For instance, the peer review used by the agency was not open to the public, and the CPSC declined to subject the information to any public comment period prior to announcing their rulemaking, thereby denying consumers and health advocates a chance to analyze the data before making its decision. 

What was the CPSC attempting to hide, and why did it so fear the sunlight of public scrutiny? 

Moreover, as recent history demonstrates, the agency's haste to ban everyday, familiar chemicals in favor of unknown alternatives can leave the public at risk in a variety of ways.  The circumstances surrounding BPA provide just one example.  In a rush to remove that widely studied and well understood chemical, many manufacturers switched to BPS, which is now being linked by some to abnormal neuron growth and hyperactivity.  In similar fashion regarding the CPSC’s action on certain phthalates, the scientists writing the report admitted to not possessing sufficient exposure data on the alternatives they were instructed to review, leaving the door wide open for their use.

For an agency whose decision-making process has been described in the past as “regulate first and explain why later,” all of this amounts to a disturbing development in the CPSC scheme to announce such an impactful ruling.  Even more disturbing is the fact that the CPSC effort is based on a secret process and incomplete data, which in turn creates the risk of doing more harm than good.

As Americans, we deserve more from our government regulators. 

Fortunately, there is something that we can do.  The CPSC is accepting public comments until March 16.  We therefore encourage everyone to take a brief moment to leave a comment and take a stand against this gross example of government overregulation. 

The Obama tenure has clearly been one characterized by executive branch lawlessness and overreach.  But we remain empowered to do something about it.