Trump Pick to Head Consumer Safety Board Is Seen as Too Close to Industries


Ann Marie Buerkle, a commissioner at the federal agency charged with protecting consumers from hazardous toys and products, has seldom voted for a mandatory recall, a maximum fine or a tougher safety standard.

In more than four years on the Consumer Product Safety Commission, Ms. Buerkle has opposed limiting dangerous carbon monoxide emissions in portable generators; resisted requiring safety technology on table saws; and disagreed with the other Republican commissioner on the five-member board by rejecting fines against companies that delayed reporting hazards to the agency, as required by law.

As President Trump’s nominee to head the agency, she is drawing criticism for her positions. Like some Trump administration officials, Ms. Buerkle is an unabashed supporter of voluntary regulations, and believes that collaboration with manufacturers, rather than levying fines or imposing recalls, is the fastest way to get dangerous products off the market. “My top goal, of course, is safety,” said Ms. Buerkle, the agency’s acting chairwoman, in an interview.

But she elaborated that in her view, the agency had become too emotionally reactive under the Obama administration. “The agency is supposed to be data-driven and science-driven,” she said. “It’s not supposed to be emotional.”

The 66-year-old former nurse, lawyer and member of Congress is likely to be confirmed soon by the Republican-controlled Senate, but her record has spurred opposition from Democrats and some consumer advocates. The Senate will also vote on another Trump nominee for the agency, Dana Baiocco, who has long worked as a lawyer defending companies against liability claims.

The emergence of Ms. Buerkle, Ms. Baiocco, and the newly appointed general counsel, Patricia Hanz, in leadership roles represents a major shift in the tiny agency, which had in recent years taken a tougher stance against companies manufacturing toxic toys, flammable pajamas, exploding batteries and other household hazards.

Consumer groups are raising concerns about potential conflicts as officials and board members join from industries under agency scrutiny or leave to work in them. Another commissioner, Joseph Mohorovic, left to join a law firm that represents the portable generator industry, which is fighting restrictions on their products.

Ms. Buerkle defended her philosophy of seeking cooperation with companies. “Not only do I think consensus standards are more effective, easier to change and to implement, but it’s also what Congress had directed us to do in the statutes,” she said.

The law does direct the commission to seek voluntary standards or recalls unless they would not sufficiently protect the public, or would not be followed.

Determining when voluntary agreements are insufficient is at the crux of the agency’s mission, and highlights competing interests.

“Ann Marie Buerkle’s record shows she is not the right person to chair the C.P.S.C.,” said Pamela Gilbert, a lawyer who was executive director of the agency from 1995 to 2001. “All too often, she follows the industry’s wishes at the expense of consumer safety. She opposes meaningful penalties when companies flout the law and she refuses to support regulations that prevent injuries and save lives.”

Senator John Thune, Republican of South Dakota, and chairman of the Committee on Commerce, Science and Transportation, which vets nominees to the commission, said both Ms. Buerkle and Ms. Baiocco had outstanding credentials.

“As most recalls are voluntary, their experiences as lawyers — and for Ms. Buerkle also as a former nurse and member of Congress — are invaluable for expeditiously addressing consumer safety issues,” Mr. Thune said.

The agency’s jurisdiction is vast, with oversight of more than 15,000 types of products, from children’s clothing and toys to lawn mowers and all-terrain vehicles. In recent years, this portfolio has stretched to include nanotechnology, toxic chemicals and magnetic balls.

In 2008 and 2011 Congress increased the agency’s authority, in particular over children’s toys and cribs. Since then the agency had stepped up enforcement, overseeing a record number of recalls or fines and adopting stricter standards for items like garage openers, strollers and window blinds.

Ms. Buerkle, however, has voted against 16 of 21 proposed settlements; in numerous cases, she argued that they should be lower than the amount the businesses had already agreed to. “Congress in 2008, raised the fines for a reason, and it did so to give the C.P.S.C. more of an ability to deter corporate wrongdoing,” said William Wallace, a policy analyst for Consumers Union, an advocacy group.

As a sign that Ms. Buerkle is too close to industry, opponents point to her hiring of Patricia Hanz as the agency’s general counsel. Ms. Hanz was a lawyer for Briggs & Stratton Corp., the world’s largest producer of gasoline engines for power equipment and a leading maker of power generators. The Milwaukee-based company has been fighting the agency’s push to require reduction of the generators’ carbon monoxide emissions, to lower the risk of poisoning associated with using the products indoors. Ms. Hanz was also vice president of the board of directors of the Portable Generator Manufacturers’ Association.

Ms. Buerkle was the only commissioner who rejected a proposal to force the manufacturers to cut carbon monoxide emissions, which have been responsible for 849 non-fire deaths from 2005 through 2016, according to the agency.

Ms. Buerkle defended her vote, saying that she believed the industry’s proposed voluntary standard could be adopted faster than a formal rule. In a striking departure for an agency chief, she suggested punting the issue to the Environmental Protection Agency.

And emails obtained by The New York Times show that Mr. Mohorovic, who stepped down in October, has since been lobbying against the proposal for voluntary standards that were under consideration by members of the Underwriters Labratories that votes on safety recommendations.

In the email, Mr. Mohorovic included a link to his agency biography, and contended that the Underwriters Laboratories proposal did not deal sufficiently with carbon monoxide problems and other potential generator hazards. The Underwiters Lab is a separate entity from the agency, although a commission member is among its dozens of members.

Asked for comment, Mr. Mohorovic sent an email to The Times that included the ethics rules on revolving door practices, which prohibits former officials from lobbying for one year before their agency.

Ms. Baiocco, the other nominee, helped settle cases involving toys with lead paint and defended Yamaha against lawsuits regarding rollovers of some off-road vehicles. By June 2009, the consumer agency reported nearly 60 fatalities involving three models of the Yamaha Rhino; along with amputations and other serious injuries. The agency announced that Yamaha was offering free vehicle repairs and a helmet to all owners of the three models.

Ms. Baiocco is married to Andrew Susko, who represented Ikea in one lawsuit over its dresser that tipped over and killed a child. His firm continues to represent the furniture giant. The C.P.S.C. has struggled since 2015 to reduce the risk of tip-over deaths from the dressers. Initially, the agency allowed Ikea to supply customers with brackets to secure the dressers to a wall. After more deaths occurred, Ikea agreed to a recall that offered customers a refund, or repair services. Ms. Baiocco did not respond to a request for an interview.

At Ms. Baiocco’s confirmation hearing, Senator Richard Blumenthal, Democrat of Connecticut, asked her if she would recuse herself from matters involving another former client, the tobacco giant R.J. Reynolds. When Ms. Baiocco responded that cigarettes were outside the agency’s jurisdiction, Mr. Blumenthal disagreed. “R.J. Reynolds is among the tobacco industry representatives that have been instrumental in encouraging the extensive use of flame retardant chemicals in upholstered furniture to deflect pressure on cigarette makers to make a fire-safe cigarette,” he said.

Marietta S. Robinson, a Democratic commissioner whose term ended last month, also took issue with Ms. Hanz’s role. “She and Ann Marie were talking about her future employment as general counsel while she was lobbying the C.P.S.C. staff, and me and my staff, not to proceed with the rule-making — without telling anyone, including her employer, of her conflict of interest,” Ms. Robinson said. “It did not even raise a red flag in her mind.”

Ms. Buerkle and Ms. Hanz each denied any impropriety. Ms. Hanz wrote in an email sent via the public affairs office that she would not have any involvement with issues related to any members of the portable generator industry. She also said, “An independent lawyer whose expertise is Wisconsin ethics law, as well as my former employer, reviewed all details and both found no conflict of interest existed.”

In the field of environmental health, it is often difficult for scientists and regulators to agree on which chemical compounds pose the most serious threats. One exception has been fire retardants. More than 20 years have elapsed since researchers at the E.P.A. and the National Institute of Environmental Health and Sciences declared that these chemicals, used to reduce the chance of fire in furniture, clothing, electronics and other consumer goods, can interfere with fetal development, alter brain function, and raise the risk of cancer and reproductive problems.

California and 12 other states have restricted certain types of flame retardants, but studies have shown that the substitutes marketed by the industry pose similar hazards. A petition by a coalition of consumer groups spurred the commission to develop a rule restricting the use of a broad class of flame retardants in children’s products, as well as mattresses, furniture and casings for electronics.

At a September meeting, Ms. Buerkle voted with Mr. Mohorovic, her former Republican colleague, against limiting flame retardants, despite testimony from Linda Birnbaum, director of the National Institute of Environmental Health Sciences and the National Toxicology Program.

“Every chemical tested in this class has adverse effects,” Dr. Birnbaum said. ‘‘Unfortunately, scientific research cannot keep pace with the flood of chemicals in commerce.”

On this matter, as in the case of the generators, Ms. Buerkle wants to defer to the E.P.A. She also disagreed with Dr. Birnbaum about the weight of evidence.

“For me, it was a situation where my colleagues jumped before they asked questions,” Ms. Buerkle said. “ It’s not that there may or may not be a problem with flame retardants. It’s what is the best way to get to the solution and to get the information we need? We need to look at them one at a time. Let’s look at the chemicals individually, rather than in this broad class.”

Dr. Birnbaum, however, called that idea impossible.

In late October, Ms. Buerkle was the lone commissioner who dissented in part from a decision to recall all Zen Magnets, the small but very strong rare earth magnets that can be shaped together, but can also separate. They are made for adults, but very young children can and do swallow the separated magnets, and if more than one is swallowed, they can cling together in the intestines cutting off the blood flow to the stomach and be lethal. In her opinion, Ms. Buerkle wrote that she would support only a limited recall — not the entire product class that the majority wished to take off the market, upsetting consumer advocates.

“She wrongly thinks we cannot protect children from dangers that result from their ‘foreseeable misuse’ of products,’’ Ms. Robinson said.

Retailers and manufacturers are eager for Ms. Buerkle’s promotion to commission chairwoman. Lisa Casinger, government relations liaison for the home furniture industry, wrote in a blog this year that she welcomed her approach to oversight.

“While other commissioners have called for changes to the voluntary standard,” Ms. Casinger wrote, “Buerkle’s view, which the HFA and industry share, is to gather and study data to see if the standard is working before proposing changes. This is a positive step for the furniture industry.”



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