Paternalism and Problem Definition

The first step in writing a safety standard is determining the scope of "the problem" to be addressed. As Charles Lindblom and David Cohen point out, "we do not discover a problem 'out there'; we make a choice about how we want to formulate a problem."^[1] That choice reflects certain values and in turn constrains the realm of possible solutions. Ideally, those defining public "problems" base their analysis on "feelings of distress, or discontent, or annoyance, or unhappiness of some subset of the citizenry."^[2] But the more technical or obscure the issue, the weaker the links to democratic problem definition. Professionalism appears to fill the gap.

Defining "the problem" is a more complicated matter than is often imagined. Deciding, for example, to address safety concerns in grain elevators is only the starting point in defining "the problem." Usually there are many hazards related to a single process or product, only some of which are considered appropriate topics for regulation. In the grain elevator case, OSHA considered housekeeping a much more significant problem than NFPA. With aviation safety, both sectors had similar concerns about fire extinguishers, but only the FAA worried about smoke detectors. Of course, there is a danger that any observations from the case studies are colored by the interaction unique to "paired" cases. In other words, OSHA's definition of the problem might be contingent on NFPA's. As it turns out, OSHA and the FAA acted almost independently of NFPA; but the CPSC acted in response to UL and AGA Labs. (The special issues attendant to standards aimed at complementing or supplementing standards in the other sector are taken up in the next chapter. As explained below, however, these interactive cases seem to accent, rather than distort, the differences in public and private regulatory philosophy.)

Paternalism is one of the distinguishing tenets of the CPSC's regulatory philosophy. Most injuries related to the woodstove and gas space heater should be blamed on the user, not the product. Properly installed woodstoves pose very little risk; so do space heaters that are operated

properly. But protecting people against their own mistakes is part of the mission of the CPSC staff. Private standards-setters, by contrast, are loath to recognize such safety "problems." They are also loath to discuss the topic of which hazards are appropriate for regulation. It would be inopportune for UL to state baldly that a significant hazard scenario is "the consumer's fault." As a result, some of the arguments about paternalism are cast in technical terms. GAMA's stated opposition to the CPSC's gas space heater standard concentrated on alleged technical problems with the oxygen detection sensor. None of these problems materialized in the four years after the rule was adopted, suggesting that nontechnical concerns were probably the underlying motivation.

Although a UL engineer allows that "there are occasional arguments within the organization about how forgiving products should be," the answer is almost always less forgiving than what the CPSC would require. Why should a metal chimney have to tolerate a creosote fire, UL wonders, when the consumer can prevent such an occurrence by cleaning the chimney at proper intervals? Similarly, why should kerosene heaters be tested for "flare up," when the problem stems from the use of improper fuel mixtures?^[3] Surface temperatures are another case in point. The CPSC has long worried about the surface temperatures of products such as gas space heaters, kerosene heaters, furnaces, stoves, and small kitchen appliances (such as toasters). Reluctantly, UL has toughened some of its surface temperature requirements in response to CPSC pressure. In the case of kerosene heaters, however, where the effort would require substantial reengineering, a UL representative candidly testified that "it's going to take a kind of change in our philosophy of approach" to address surface temperatures.^[4]

Private standards-setters are most likely to protect against misuse when it involves children or the elderly. Private testing labs subject many consumer products to an articulate probe test intended to simulate an overly curious finger probing inside protective grates or openings in the appliance casing. The AGA/ANSI standard for space heaters simulates this hazard and the possibility of clothing ignition caused by contact with the heater. AGA Labs disagrees with Consumers Union about test methods—the proper fabric to use when testing flammability and the correct shape of the articulate probe—but both agree that these mishaps merit some protection.

Nevertheless, significant differences remain in how the two sectors view the responsibility of consumers. UL and AGA usually certify safety under conditions that assume full compliance with both the manufac-

turer's instructions and any applicable installation codes. AGA assumes, for example, that gas space heaters (1) will not be operated in bedrooms (because that is prohibited by the National Fuel Gas Code) and (2) will always be operated with proper ventilation (in accordance with the manufacturer's instructions). Injuries that might be caused by the failure of an adult to read the instructions or install an appliance with professional guidance are of little concern to AGA. Its regulatory philosophy does not encompass such paternalism. The CPSC, in contrast, takes the responsibility of manufacturers much more seriously than it takes the responsibility of consumers. When the CPSC staff drafted a proposal for the criteria to use "in considering requests for endorsement or recognition" of private standards, one of the only substantive conditions was that "information in the [standard] does not place the burden of safe use of the product onto the consumer in such a manner as to exculpate manufacturers or distributors from any liability associated with their product's use by the consumer."^[5]

These different worldviews were highlighted clearly in the case of gas space heaters. According to a member of the Z21.11.2 committee, carbon monoxide poisoning occurs because "people do not use and maintain the product correctly." The CPSC had a different view. "Consumer misbehavior was not a problem with the unvented heater," a former CPSC commissioner asserts; "it was a dangerous product." The private sector's position is factually correct. No one has ever been poisoned by carbon monoxide while using a space heater correctly. But whether it is desirable to require the ODS depends on your philosophical view of government paternalism and individual responsibility. Thus, in the case of gas space heaters, woodstoves, and many other products, the CPSC sees problems where UL does not.