Like most people, Crystal Ellis figured that if a product from a well-known manufacturer was on the shelves of a store, it must be safe and must have been tested to ensure that it was.
If there were problems, she thought, surely the government would sound an alarm.
She didn’t know any different until after the awful day in June 2014 when her toddler son pulled open a drawer of his Ikea dresser, and the unstable piece of furniture toppled onto him. He died four days later — two days after his second birthday.
In the five and a half years since her little boy’s death, Ellis has learned that manufacturers — not the government — often determine how information about the safety of consumer products is made public.
“Before this happened to me, I just assumed that, in order to sell something in the United States of America, there was testing or standards or some sort of vetting process,” Ellis says, and that “they’ll tell us if it’s really dangerous.”
Problems with household products can take months or years to reach the public eye because of an obscure provision — Section 6(b) — in the regulations that govern the Consumer Product Safety Commission, the federal agency that regulates about 15,000 categories of household goods.
That portion of the federal Consumer Product Safety Act says that before the agency can release information about a specific product, first it has to give the manufacturer the chance to weigh in. Companies get to negotiate how much information is disclosed to the public. If they choose, they also can go to federal court to block the public release of safety information about their products entirely.
The CPSC can override a manufacturer and release disputed information if it says there is an imminent safety hazard.
But advocates pushing for changes in the rule say that the provision often makes it difficult to get safety information released — or to know when it hasn’t been.
“The best way to describe this is a gag order,” says Nancy Cowles, executive director of Kids in Danger, a national safety organization based in Chicago. “You don’t know what you don’t know.”
Ellis, a mother of two who lives near Seattle, and other parents have learned about 6(b) only after their children died because of unsafe products.
Her son Camden reached into a drawer of his Ikea dresser one morning in June 2014 to get to his clothes. Somehow, his head got wedged between the first and second drawers. Though the dresser was less than 31 inches tall, it fell on and pinned him.
When Camden’s dad went to wake him for breakfast, he found his boy motionless. Ellis frantically began CPR while her husband called 911. Camden died at a hospital four days later.
Ellis says she is a careful mother. She uses cabinet locks, baby gates, outlet covers, window-blind cord covers and door latches. But she never imagined the short dresser could take her blue-eyed boy from her.
In 2016, Ikea reached a settlement with the Ellises and two other families whose children were killed in tipover accidents. The families said that, because of a design flaw, the dressers were prone to fall forward. This past week, a $46 million settlement was announced with the family of a California toddler killed in 2017.
Ellis says the recall process moved far too slowly and that information about other brands of unstable dressers remains under wraps.
The recall of millions of Ikea dressers and chests didn’t happen until 2016, followed by an updated recall in 2017.
For nearly a year before the recall, which came in response to Camden’s death and the death of another little boy, there was only a 2015 program that urged parents to anchor the the units to a wall but no recall.
The death toll from the dressers and chests now is at least nine.
“That’s the legacy of 6(b),” Ellis says.
Cowles has tried unsuccessfully to get the Consumer Product Safety Commission to publicly identify the brands of other dressers it subsequently ordered tested.
One request that Cowles sent in, requesting information be released under the federal Freedom of Information Act, yielded pages of completely redacted documents — explained only as “6(b).”
Robert S. Adler, acting chairman of the federal agency, didn’t respond to a request for comment on 6(b) and the efforts to change it.
Former chairman Elliot F. Kaye, an Obama administration appointee who remains a commissioner through October 2020, has testified that 6(b) hamstrings the agency, preventing it from moving more quickly to let the public know about dangerous products.
“People die because of Section 6(b),” Kaye told a Congressional hearing last spring.
The CPSC is the only federal agency regulating consumer goods that operates under a rule that gives manufacturers a say in what information is made public. Neither the Food and Drug Administration nor the National Highway Safety Traffic Administration is required to ask a manufacturer before issuing a safety warning or recall.
A report last July 2019 from the consumer group Public Citizen said 6(b) “creates an unnecessary hurdle that prevents [the CPSC] from doing its job, a key aspect of which is to quickly warn the public about product safety hazards.”
Companies say the rule helps protect them against erroneous or unproven complaints that could hurt business.
Manufacturers have argued that the rule also allows them to give regulators a heads-up on potentially unsafe products without that information immediately being made public.
Public Citizen found that 6(b) goes beyond ensuring the accuracy of complaints, keeping important safety information from watchdogs, researchers and journalists who might spread the word about problems.
Sara Thompson says she gets sick when she thinks about the secrecy. Thompson’s 15-week-old son William Alexander — “Alex,” to his family — died in a Fisher-Price Rock ‘n Play inclined sleeper in September 2011. His death was attributed to “sudden unexpected infant death” — a mystery that left Thompson in limbo for years.
Like millions of parents, Thompson, who lives in eastern Pennsylvania, had bought the popular product in hopes of alleviating her baby’s reflux. For years after Alex’s death, she was unaware other babies also had died in such sleepers because no recall had been issued.
Not connecting the sleeper to any danger, she got another Rock ‘n Play to use for the two babies she later had.
“Looking back, it’s terrifying,” Thompson says. “We could have lost two other children.”
The Rock ‘n Play and similarly designed inclined sleepers are now blamed in the deaths of at least 73 infants. But that information took years to trickle out.
In May 2018, the CPSC issued a vague warning about inclined sleepers, not naming Rock ‘n Play or any other brand.
“That warning was all the agency could say about it because of 6(b), and it was completely ineffective,” Cowles says.
It was only by chance that the public learned what was going on with inclined sleepers. Consumer Reports had requested data from the government about inclined sleepers and accidentally was given unredacted information. That led the magazine to find and report on dozens of cases of deaths.
After that, the CPSC, Fisher-Price, Kids II and Doral announced voluntary recalls last spring of millions of inclined sleepers. And after pressure from the American Academy of Pediatrics and other organizations, the federal agency announced in October it would move to ban inclined sleepers entirely.
Eight years had passed since Alex’s death — a lag that outrages Thompson.
“It’s the ‘Consumer’ Product Safety Commission, and yet the companies are more protected than we are,” she says.
But not every complaint of unsafe products makes it into the database. Many people don ‘t know about it. Some choose not to publish their reports. And complaints made directly to manufacturers don’t appear there.
Cowles says she has been told about 50 percent of all complaints end up in the database.
On Thursday, U.S. Rep. Bobby Rush, D-Illinois, introduced legislation in Congress to prevent companies from using the courts to block the dissemination of safety information. It still would require the CPSC to notify companies 15 days before disclosing information. But it would shift the balance of power in releasing information, and would toughen the penalties for not complying with reporting requirements.
The bill is supported by Kids in Danger, Consumer Reports, Public Citizen, the Consumer Federation of America and the U.S. Public Interest Research Group.
“Words cannot begin to describe the pain suffered by families who have lost their children,” Rush says. “We will not let their deaths be in vain.”
Ellis says she hopes reforms will mean the public is better-informed.
“My kid’s dead,” she says. “Consumer protection has just gone on the back burner for too long.”