Letitia Stein

Brett Murphy
 
| USA TODAY
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.The CPSC watchdogs are supposed to intercept bad toys and other household products before they reach the market. “Anything that could potentially harm consumers, my job is to stop it here,” one compliance investigator says in a video posted on the agency’s website.  Instead, three years of internal agency enforcement records and communications obtained by USA TODAY reveal an extraordinary lapse in safety surveillance during the pandemic – one hidden from public view.  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.CPSC inspectors performed half the safety screenings this fiscal year compared to lastShoppers have no way to differentiate good products from any bad items that slipped in. Experts fear it could take years to discover the dangers allowed into American homes.  Big-name national retailers and distribution companies have imported tens of thousands of shipments during the pandemic. The retail industry says it does not rely on CPSC to keep consumers safe. Importers and manufacturers are required to monitor their own products and inform the government when they find hazards. In an interview with USA TODAY, the CPSC’s acting chairman, Robert Adler, said broadcasting its port playbook would have invited companies to exploit the system. The agency’s commissioners had a chance to weigh in on the decision that he said prioritized keeping employees healthy. Adler noted that the small health and safety agency asked for help from customs and border patrol agents who remained at the ports, but did not offer specifics. “We stopped a fair amount of stuff,” he said. “We didn’t stop all of it, but we never stopped all of it.” CPSC informed Congress, too, Adler said, although some lawmakers say the agency did not disclose the extent to which it had abandoned its port duties.Democratic Sen. Richard Blumenthal, the ranking member of a subcommittee overseeing the consumer agency, said he was unaware of the CPSC’s dormant months until contacted by USA TODAY. He vowed to hold hearings to demand an explanation.  “The total lack of inspections is absolutely inexcusable,” he said, “especially because of the concealment.”    Meghan DeLong has learned from tragedy how much parents depend on government safeguards.  In 2017, her two-year-old son, Conner, died after a dresser tipped over on top of him. She blamed IKEA, the company that made it, which has recalled some faulty dressers but not the model that fell on Conner.The Florida mother now fears her 5-year-old and 7-month-old sons face a new risk from their toys.  “It’s actually terrifying,” she said, “to know that something being used with our most innocent and vulnerable populations has not been through screening.”  Who are the toy police? The CPSC promotes the work of its port investigators, who call themselves the toy police.  The agency normally has 32 port investigators working in a dozen states and Puerto Rico, where they crack open shipping containers and run electronic screeners to detect lead and phthalates above legal limits. A hollow tube, as thin as a toddler’s throat, identifies toy parts small enough to kill.  The CPSC does more than screen toys. Congress created the agency in 1972 to set and enforce safety standards for everything from cribs to lawn mowers. Product safety advocates have long called its $133 million annual budget too meager to get the job done.  Nearly four in five product recalls involve imported products, the agency notes in its latest operating plan.  The CPSC uses spot checks to screen for hazards that wholesalers and retailers are supposed to test for themselves. The agency tracks risky products, such as those from importers with a history of violations or made in parts of the world with known problems.During the COVID-19 closures from April to September, the agency issued a fourth of the violations it did during the same period a year earlier. New lead violations at the ports plummeted from a monthly average of 50 to zero this past spring. Lead poisoning is a hidden hazard that builds up slowly with repeat exposures.“You won’t necessarily know that your child has been exposed,” said Dr. Gary Smith, director of the Center for Injury Research and Policy at Nationwide Children’s Hospital in Ohio. “We really do depend on the Consumer Product Safety Commission to protect kids.”CPSC violations in and outside the ports dropped dramatically in 2020Both CPSC and industry groups point out that these safety measures are not optional, even during a pandemic. By law, companies are supposed to report hazardous products back to the federal agency.“That never went away,” Adler said in an interview. “We still expected companies to engage in recalls of their products.”   Large wholesale distributors, shipping companies and name brand retailers — including Target, Dollar Tree, Walgreens, Amazon and UPS — were among those who brought in products from overseas while the government watchdogs were away from their posts this year, according to shipping data maintained by the trade research firm Panjiva.  Items imported by each of those companies have been flagged for violations by CPSC more than once in the past seven years, agency inspection records show.  USA TODAY reached out to 10 name brand companies that have received violations in the past. Those that responded said their products are safe because they kept screening for the kinds of hazards that CPSC checks. “Changes in port staffing have absolutely no impact on Target’s product safety standards,” Target spokeswoman Jenna Reck said in an email.   The Retail Industry Leaders Association, which represents many of the major stores regulated by CPSC, told USA TODAY the agency did not inform its officials about the pullback.  In recent years, CPSC has most frequently cited companies that are not U.S. household names. Experts and retail industry officials warn that online retailers use third-party distribution companies that may lack the kind of safety standards consumers expect from brick-and-mortar retailers.A decision made in privateFrom the spring through early fall, even as the agency’s top officials dismissed warnings about sidelining its inspectors, more than 100,000 shipments with toys passed through American ports, rising steadily each month, according to the Panjiva data.  Internal emails and documents show Adler, a Democratic appointee leading the agency, and CPSC Executive Director Mary Boyle knew from the start their decision to implement remote working was risky.  Oversight commissioners were asked to quickly email their feedback.“My only concern is moving port staff away – we will have no defense to incoming crap,” Commissioner Dana Baiocco wrote on March 16.  After conversations with agency staff, Baiocco emailed a dozen CPSC officials again, saying she was comfortable with the plans to continue work remotely. “I think given the choice,” she wrote, “we should take care of our people.”  Commissioner Peter Feldman noted that other federal agencies planned to continue port operations. He also said he was worried about “CPSC being blind at the ports.”  In a private call among agency leaders the same day, Feldman pressed CPSC officials for details. “I am sensitive to the fact that anything can come in,” he told them, according to detailed minutes taken from the meeting.  Deputy Executive Director DeWane Ray said the agency “essentially would go dark on targeting and holding shipments,” explaining it would conduct “in-depth investigations over the phone.” “There will be limitations to that,” Ray acknowledged, the notes show.  Adler said on the call that nothing seen so far had been very worrisome.  Yet port inspectors had identified significantly more lead violations between January and March 2020 than during the same period the year before, according to the agency’s monthly violation logs obtained by USA TODAY.  Based on the pace of the first three months of the year, the CPSC was on track before the pandemic to find almost 200 more port violations for the year – from lead to choking hazards – than it had in 2019.  Asked about lead hazards that the agency might have missed during the pullout, Alder told USA TODAY that children are more likely to be harmed from toxic paint peeling off walls in older homes, or playing near former chemical dumping grounds.  “Lead in toys is not the biggest lead hazard to kids by far,” he said, adding that since 2008, a child product safety law enforced by his agency has set strict limits on lead content in toys. “If you were to ask me if that is the biggest hazard of the products that we regulate, I would say not anymore.”Lead violations found at US ports fell to nearly zero as the pandemic hit Back in March, on the private call with commissioners, the agency’s executive director also said she thought problems could be chased later by recalling products, the meeting notes show. “Although not ideal, we can always do things after the fact with recalls even if we can’t stop things at the port,” Boyle said, according to the notes.  Safety advocates say that’s a dangerous strategy. It can take years for the CPSC to identify products harmful enough to recall, and the agency has struggled to inform consumers or get them to return products. For the year ending in September, the agency recalled nine toys – almost all involving products reaching stores before the COVID-19 stoppages.  “Recalls are not a good solution; it’s like saying you find something in the autopsy,” said Nancy Cowles, executive director of Kids in Danger, a nonprofit advocating for children’s product safety. “It is a little too late to be helpful.”  Consumers have no way of knowing 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.  Rachel Weintraub, legislative director for the Consumer Federation of America, urged the government to redouble efforts to get back to normal port inspection levels. She said CPSC also can send field investigators out to check on products that already have reached store shelves.  Children’s toys and other items are especially worrisome to safety advocates because they often are passed down between siblings, then shared with other families with younger children or resold at thrift stores.  “Once a product that has lead or phthalates gets into the stream of commerce, it is very difficult to identify a problem,” Weintraub said. “We need to figure out how do we get the numbers back up.”  Weintraub wants the agency to answer to Congress for what happened during its COVID-19 response.  Adler and his chief of staff, Sarah Klein, told USA TODAY they have kept Congress informed of the agency’s activities since the start of the pandemic.  The agency shared with USA TODAY a letter sent to the ranking member of the Senate Commerce, Science and Transportation Committee on March 19 explaining that it had “implemented policies to direct all telework eligible employees to work from home on a full-time basis.” However, that did not explicitly state that port employees were pulled. An internal email sent to staff three days earlier, titled “Everyone,” was more direct: “CPSC employees working at the ports are instructed to perform all duties from their home worksite.”  Adler told USA TODAY the agency alerted the public with communications such as pop-up notices on its website that recall remedies might not be continuing as usual. He said the agency must also weigh the harm that could come if companies know its blind spots and take advantage of them.“Why would we tell consumers?” Adler asked.It took months for Sen. Jerry Moran, a Republican from Kansas and chairman of the Senate committee that oversees CPSC, to learn about the ports slowdown, according to his staff. And until informed by USA TODAY, his staff did not know the extent of the withdrawal or its impact. Moran recently co-wrote legislation that would force the agency to study any products that hurt or killed kids, seniors and minorities during the pandemic. Jan Schakowsky, a Democrat from Illinois who chairs the House consumer protection subcommittee, said her staff was generally aware that the CPSC had scaled back work. But she said she has not been satisfied with the agency’s explanation of why it kept port investigators away so long.  “A completely inadequate response,” she told USA TODAY. “CPSC is not doing its job.”  ‘If they see a loophole, they’ll drive a truck through it’ The CPSC kept its field workers home long after the nation’s retail stores had reopened, filled again with shoppers buying products that may have lacked the usual safety checks.  The agency’s commissioners had been told it planned to get work done by enlisting Customs and Border Protection agents still at the ports, according to meeting notes from internal conversations in April. The CPSC hoped for assistance at seven ports, less than half of those the agency normally services. The two agencies have worked together for years.  What happened to that plan is unclear. The CPSC did not respond to questions from USA TODAY about it, but it said border patrol agents helped by sending samples to port staff at their homes. Field staff did virtual investigations and the agency kept processing recalls of products flagged by companies, agency spokesman Joseph Martyak said in a statement. The border patrol did not respond to information requests from USA TODAY to detail its work with CPSC. But border patrol operations did not fall off on other fronts during the pandemic. That agency seized more imported goods overall for the year ending in September than for 2019, its statistics show. The agents work with many federal agencies, including those regulating medications and car parts.  Corporate consultants told USA TODAY that the CPSC also called importers during the pandemic to ask them to self-report substandard items, a practice long used by the agency to augment its surveillance.  Such remote efforts did not replace the CPSC’s typical port surveillance.  In the beginning of the year, CPSC inspectors performed an average of 3,000 monthly screenings at the ports, according to internal agency data. By May, that number had plummeted to about 100. In August, they performed 47.  The pandemic was a novel test of the agency’s command chain and what it means for accountability.  The agency tied its return to the field to strict COVID-19 criteria under a plan that also placed Boyle, the executive director, in charge of decisions. Internal records show that some thought an appointed officer like Adler should have that responsibility.  In a May email chain, Feldman warned Adler against delegating to staff: “Accountability should rest with a PAS,” he wrote, referring to presidential appointees requiring Senate confirmation. “It would be inappropriate to abdicate these functions.”   The CPSC’s leadership responsibilities had shifted quietly in late 2019. An order signed by Adler’s predecessor, Ann Marie Buerkle, consolidated agency operations under the executive director, who is not politically appointed, by delegating authority away from the chairman.  Buerkle had been criticized for the agency’s lethargic response to several products that caused deaths and grave injuries, from jogging strollers to inclined infant sleepers. Adler rejected the proposal for the chairman or full commission to decide on the COVID-19 reentry timing. In doing so, he highlighted the 2019 order, internal emails show.  Feldman urged him to inform Congress. “I’m sure they’re unaware and operating under the assumption that you’re running point on COVID response and reentry,” he said in an email. It was not until September that Boyle began clearing staff to return to the ports and the lab.  In a statement, Martyak said the agency sent inspectors back to the ports once scarce protective equipment was secured.  Yet care packages the agency mailed out earlier in the summer included cloth face masks and mini sanitizer bottles, emblazoned with the CPSC logo. Examples shared with USA TODAY show a note thanking employees “for the dedication and skill you have shown to support the CPSC mission of protecting American consumers from dangerous consumer products.”  By October, the ports in Los Angeles, which receive almost 40% of the country’s total container imports, were having their busiest months in history. CPSC regulators were returning to work, yet they still found only 61 violations at the ports, internal documents show. Most involved minor problems with children’s toys, such as missing paperwork and inadequate labels.   The agency did not issue any violations in September or October for pajamas that can easily catch fire, according to the Regulatory Enforcement Division’s monthly logs. At the start of 2020, that hazard was flagged repeatedly. As of this month, the agency remained inactive at five port locations, according to internal records: Chicago, New York City, Savannah, Buffalo, New York, and Norfolk, Virginia.  Rising COVID-19 rates around the country should not force the CPSC to pull back from the ports again, Adler said, noting that agency now has more masks and other protective gear.  Some experts say the agency, already thin on manpower, could not afford to disappear from the ports.  “The companies aren’t dumb. They know what’s going on,” Lawrence Hershman, a former CPSC senior compliance officer, told USA TODAY, pointing specifically to little-known companies that are repeat offenders. “If they see a loophole,” he said, “they’ll drive a truck through it.” Letitia Stein and Brett Murphy are reporters on the USA TODAY investigations desk. Contact Letitia at lstein@usatoday.com, @LetitiaStein, by phone or Signal at 813-524-0673 and Brett at brett.murphy@usatoday.com or @brettMmurphy. 


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