CONSUMER SAFETY ACT OF 1972 THURSDAY, APRIL 20, 1972 U.S. SENATE, SUBCOMMITTEE ON EXECUTIVE REORGANIZATION AND GOVERNMENT RESEARCH, COMMITTEE ON GOVERNMENT OPERATIONS, Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 3302, New Senate Office Building, Senator Fred R. Harris (acting chairman of the subcommittee) presiding. Present: Senators Harris, Javits, and Percy. Also present: Robert Wager, staff director and general counsel; Mark E. Greenwold, assistant general counsel; Gerry Simons, special counsel; Stuart M. Statler, minority counsel; and Pamela J. Gell, chief clerk. Dennison Young, Jr., legislative counsel to Senator Javits, was also present. Senator HARRIS. The hearing will come to order. OPENING STATEMENT OF SENATOR HARRIS This morning we begin hearings on titles I and II of S. 3419, which was reported favorably by the Commerce Committee on March 24. The bill would create an independent Consumer Safety Agency, composed of the Food and Drug Administration and the Division of Biologics Standards in the Department of Health, Education, and Welfare. The new agency would also absorb the regulatory authority under 10 separate safety and efficacy laws. THREE KEY FINDINGS This legislation is the result of a 2-year study by the Product Safety Commission, which recommended the establishment of such on agency. Its recommendation was based on three key findings: 1. Every year 20 million Americans are injured in the home as a result of accidents involving consumer products. Of these, 110,000 are permanently disabled and 30,000 are killed. 2. The Federal role in product safety is fragmented, narrow, and weak. 3. Industry regulation and State laws cannot provide an enforceable, uniform standard for product safety. Our hearings will focus on the organization and plan of operation for the proposed new agency. The most basic question before us is whether FDA and DBS should be removed from HEW and estab lished as a separate agency in the executive branch. But beyond this, we want to know whether all product safety activities in the Federal Government should be combined in one agency and, if so, what additional transfers should be made. UNANSWERED QUESTIONS We will also closely examine the proposed administrative structure of the new agency. What problems would be created by the division of responsibility between the administration and the three commissioners? How will the independence of the agency be affected by the different conditions under which the administration and commissioners serve? Are four separate legal staffs necessary? These are some of the questions for which we will be seeking answers. Our first witness today is Mr. James Turner, author of "The Chemical Feast." Mr. Turner, we are pleased you are here. May I announce that we will have a brief recess at 11 o'clock because of a press conference in which I and others are involved. It will not last more than 30 minutes. We will take up again at 11:30 and at that time go directly on through the witness list planned for today until we finish. Senator Percy, the ranking minority member of the committee, also has an opening statement. (See exhibit 1, p. 44, for the text of S. 3419.) REMARKS OF SENATOR PERCY Senator PERCY. Thank you very much, indeed, Mr. Chairman. S. 3419 would create a new, independent agency within the Federal structure with undiluted responsibility for preventing consumers from being exposed to unsafe foods, drugs, devices, and other consumer products commonly found around the home. The measure would also consolidate within the new Agency various consumer product safety activities now being handled by a number of Government entities by transferring to an independent Consumer Safety Agency the present food, drug, cosmetic, vaccine, and product safety activities of HEW and other product safety functions of the Commerce Department and the FTC. S. 3419 would also repeal various existing consumer safety laws directed at particular products or specific hazards and replace them with a single omnibus product safety law capable of reaching any consumer product in the marketplace presenting an unreasonable risk of injury. Although our discussion of S. 3419, reported out of the Commerce Committee on March 24 by a vote of 17 to 1, will concentrate primarily on organizational issues, I want to reaffirm the underlying reasons why the Congress is and should be addressing itself to a regulatory plan of this nature. SAFE PRODUCTS The American consumer has a right to safe products for use in his home. The safety of a product begins in its design before it reaches the market, before it causes illness, injury, blindness, disfigurement, or death. Today we are faced with a number of unreasonable hazards in and around the home. In determining their unreasonableness, we can ill afford to sit by and await an epidemic of tragedies to verify that a hazard exists. Instead, it is the proper role of the Federal Government to stimulate American industry to reduce product risks by an omnibus legislative approach which will permit the Government, where necessary, to promulgate and enforce minimal standards of reasonableness in product design and manufacture. Currently, however, the folly of Federal regulation of consumer products is all to plain. Legislation in this area consists of a hodgepodge of unrelated statutes dealing with specific hazards in very narrow product categories. There is no general Federal authority to seize or ban consumer products which exhibit unreasonable risks nor to require such products to conform to minimum safety standards. And to the extent any Federal authority does exist, jurisdiction is commonly scattered amongst agencies or shared by as many as four different agencies. As the National Commission on Product Safety concluded: Federal product safety regulation is burdened by unnecessary procedural obstacles, circumscribed investigative powers, inadequate and ill-fitting sanctions, bureaucratic lassitude, timid administration, bargain-basement budgets, distorted priorities, and misdirected technical resources. All this in the face of 20 million Americans injured in the home each year in accidents involving consumer products, 110,000 of whom are permanently disabled and 30,000 killed. In terms of the national economy, the total cost each year of injuries from consumer products—excluding the automobile-may well exceed $5.5 billion. This includes financial cost to the injured victim, his family, close friends and relatives, but does not begin to take into account the trauma and pain that injury can produce. SOCIAL COSTS Moreover, there are social costs of injuries from consumer products which include, among other things: Untold millions of dollars in unrealized income tax revenues from preventable death or disability; Public expenditures, $446 million, or 1.7 percent of all current expenditures for health care; Total hospital admissions, 2.1 percent, filling 18,782 beds for "acute" care-a number equal to the annual construction of such beds at a capital expenditure of $600 million; The equivalent of the full-time services of 2,000 daily practitioners, a number equal to one-fourth of the new physicians in 1970: A drop of $100 million in potential retail sales as 100,000 families each year suffer an unexpected reduction of $1,000 or more in their budgets. From my own experience in the business world, I think it is important to emphasize that the forces of competition, free enterprise, and profit motive are neither inherently conducive to nor inconsistent with consumer safety. But with the backing of Government, properly organized to do the job, these forces can be focused to reduce unreasonable product risks. An investment of this kind in the safety of consumer productsfrom rotary lawnmowers, to power tools, to plateglass panels, to unvented floor furnaces, to children's toys, and the rest-can be expected to produce an exceptional rate of return on the capital required. Such investment will also result in a more productive economy, an expanded market for consumer goods that can be relied upon, and, most important of all, a safer home environment for ourselves and our children. Mr. Chairman, when a member of the business community said to me the other day, "Why do we need a consumer safety agency; why do we need a consumer protection agency?" And I listed some of the things that just in the last months have come to our attention where there had been flagrant abuses of regulations and product safety measures that should have been installed by industry. This questioning businessman had literally nothing to say when I listed the catalog of abuses that had been found within the private sector, and certainly the country, and consumers of this country, are demanding that more surveillance be provided by the Government in this area. Thank you. Senator HARRIS. Thank you. Mr. Turner? TESTIMONY OF JAMES F. TURNER, AUTHOR OF "THE CHEMICAL FEAST" Mr. TURNER. Senator Harris and Senator Percy, I thank you for the invitation to appear here today. I have a prepared statement which has been made available to the committee and to those who desire to observe, and I would like to summarize for the committee what the high points of that statement are. Senator HARRIS. Very well. Without objection, the complete statement will be made a part of the record. (See exhibit 2, p. 112.) Mr. TURNER. Thank you. I am the author of "The Chemical Feast" which was the Nader report on the Food and Drug Administration which was begun in 1968. I am currently codirector of a group called Consumer Action for Improved Foods and Drugs which seeks to implement the recommendations that were contained in the Nader report. I am also a practicing attorney in the food and drug area in Washington and, as one of my clients, I have been representing a scientist in the Division of Biologics Standards over the last 18 months. It is from this background that I come forward to support S. 3419 and the Agency that it creates. THREE ESSENTIAL POINTS This Agency will make three major contributions to consumer protection. First, it consolidates many of the most important consumer protection programs in the Federal Government; second, it expands much of the activity that we consumers are now presented with by the Federal Government, and, third, it creates an independent agency. Each of these three points is essential to progress in consumer protection along the lines outlined in both of the opening statements. It should be pointed out initially that Secretary Richardson of HEW has strongly supported the concept of consolidation. He would like to consolidate the programs within HEW, however. But he has pointed out, "Centralizing these responsibilities will give Federal consumer protection efforts a single direction; that is, a more rational ordering of regulatory priorities than is now possible, as well as coordinated, and therefore enhanced, enforcement." The crucial question that this bill presents is whether or not the problems currently faced in the organized consumer protection activities in the Federal Government stem from the organization of those agencies rather than the personnel who administer those laws. It is my argument, in support of this bill, that the problems that the Federal Government faces in protecting consumers and in carrying out the mandate of Congress in consumer protection areas result directly from the way these organizations are currently placed in the Federal Government. Primarily, these institutions need to be a part of an independent agency. RESPONSIBILITY FOR REGULATORY PROGRAMS Secretary Richardson's arguments in support of consolidation is also a strong argument for the independence of the agency created by S. 3419. The official responsible for regulatory programs should himself have full authority to enforce the law and not with a supervisor. This authority cannot be achieved as long as the official is subordinate to anyone. As long as he is subordinate, his regulatory decisions are subject to review by individuals with competing policy orientations. Secretary Richardson places clear-cut responsibility for enforcement at the top of his list of requirements for any agency administering consumer safety regulations. This is a sound standard. Unfortunately, for the entire period that FDA has been within the province of a department of Government, currently the HEW, the Commissioner has not had clear-cut authority. From the time the Agency was created as a part of the Department of Agriculture until the present, Secretaries have found it necessary, because of public pressure, to intervene in decisions made by the regulatory agency. When the law required FDA to move against cranberries in 1960, HEW Secretary Arthur Flemming took responsibility for the action. When the law required action of one kind or another on DDT in fish, the antibiotic Panalba, and the artificial sweetener cyclamate, in the past 3 years, it was the Secretary of HEW and not the Commissioner of the FDA who made the decision. More recently, we have been presented with controversy between the Surgeon General of the United States and the Food and Drug Administration over the policies in the use of phosphate detergents. There is some suggestion by the public debate that the Government has changed its policy on these detergents. In fact, the regulatory agency, the FDA, has not changed its policy. |