A Precautionary Tale

by Dan Marshall

Published March 26, 2009 @ 01:14PM PT

While eating a peanut butter sandwich the other day, I started thinking about the larger political context of the CPSIA. Why did Congress, in cooperation with a consortium of consumer groups, create such a sweeping law that forces every manufacturer of a children's product to prove it is safe before it can be sold? Certainly, there might have been better solutions available such as increased funding and greater powers to the CPSC to enable them to better identify and remove substandard products.

The answer is that a larger movement has been at work here which goes beyond problems with Thomas the Tank Engine.  That movement is an idea known as the precautionary principle, which has been struggling to take root in government for a decade and a half.

The precautionary principle is a simple idea.  Before humans or the environment are exposed to a new chemical or technology like Tris fire retardant or nanontechnology, the manufacturer would first have to prove that the new chemical or technology would not cause harm. Once you get past the difficulty of proving a negative, the precautionary principle seems like a reasonable approach in many ways, especially where the possible harm might be global in scale.  The precautionary principle is already at work regulating new drugs at the FDA, new airplanes at the FAA, new nuclear power plants at the DOE, etc. Many would argue that it should also be applied to issues like global warming,genetically modified organisms, or industrial chemicals.

But, instead of applying the precautionary principle to any of these issues of global importance, Congress decided to ride the wave of public outrage over toy recalls and apply it to bicycles, booties, books, and rubber balls courtesy of the CPSIA. The devastation caused by such a sledgehammer approach to a problem caused by a few errant cans of paint is just beginning to be quantified.  Estimates by the CPSC now range in the billions of dollars.

But what liberal folks, environmentalists, and consumer advocates need to realize is that the myriad problems with the CPSIA are not only destroying thousands of small businesses, but are also severly undermining the entire concept of the precautionary principle.

Already, the CPSIA is being used as an example to avoid in future legislation.  Jeff Stier of the centrist group the American Council on Science and Health writes,

"Today, the food industry is exactly where the toy and other childrens' products companies were two years ago. And it is not a pretty place. Just because there's a problem, doesn't mean a big overhaul will do the job. And if the problem is big and highly visible the solution doesn't need to be equally large. Situations like this require us to be cautious against the same unintended consequences that came about as a result of the CPSIA."

The example of the CPSIA has also been used to argue against re-writing the Toxic Substances Control Act, most notably by CPSIA reform activist Rick Woldenberg. Even this year's legislative effort to ban BPA from baby bottles lacks the sweeping testing requirements that last year's bill contained.  Clearly, Congress has learned from its mistakes.

It may be true that the precautionary principle has a place in federal regulation, but the CPSIA serves to demonstrate that it should be very carefully applied, and certainly not to subjects which are so inherently low-risk as children's products.  Until it is fixed, the CPSIA will serve as a glaring example of an over-reaching extension of the precautionary principle and will undermine the entire concept.

Democrats everywhere--hear my voice. It's time to fix the CPSIA and move on.