If a child is injured by a hardball, a jury could be swayed by the fact that a federal agency recommended the softer ball and consider a team negligent for not using one--even though the injury might have been worse if a softer ball had been used. Bill Owens, a coach and equipment manager for the Youth Leagues in Boston, says the owner of a baseball camp confided to him that the camp used soft baseballs because of potential liability even though the owner did not know the balls were safer.
The CPSC was created in 1972 during the Nixon administration's great regulatory expansion, which also blessed us with the Environmental Protection Agency, the Occupational Safety and Health Administration, and the National Highway Traffic Safety Administration. The CPSC has broad power to regulate just about every product "for sale to a consumer for use in a household..., school, in recreation, or otherwise." In years past, the agency has effectively banned children's cotton pajamas because of their flammability (and encouraged the use of a flame- resistant material that was later found to be a potential cause of cancer) and banned lawn darts because of one death due to misuse. Until recently, however, the commission had not been nearly as active as other federal agencies because of its lengthy rule making process and relatively small budget.
Current Chairman Brown is finding creative ways to get around these restraints on CPSC power. A particularly striking example of her broad reach occurred in 1994, when she voiced alarm about the movies Lassie and Richie Rich because they portrayed children riding in all-terrain vehicles in an unsafe manner. The CPSC's general counsel said he was looking into claiming jurisdiction on the grounds that the movies are consumer products.
Frustrated at the agency's overstepping its jurisdiction and disregard for traditional rulemaking, former Commissioner Dawson now advocates that her old agency be phased out. "The CPSC may have outlived its usefulness," she says. "When regulation by press release replaces statutory procedure, it's time to consider non-government alternatives."
Without the CPSC, Dawson suggested in a paper for Consumer Alert, product safety could be handled by a combination of product liability and voluntary standard-setting organizations, nearly 270 of which already exist. The most famous is Underwriters Laboratories, which for about 100 years has certified the safety of many electrical appliances with its "UL" mark.
Sporting equipment also provides a good example of how the private sector can improve safety on its own. The National Operating Committee on Standards for Athletic Equipment was formed in 1969 as a joint effort of college and high school athletic associations to set standards for equipment in games. It is funded by private donations and fees that equipment companies pay to carry the NOCSAE label. After college and high school athletic associations adopted the NOCSAE standard for football helmets, manufacturers immediately complied and the numbers of head injury fatalities and serious head injuries dropped by more than 70 percent. NOCSAE's standard for baseball batting helmets is also widely followed.
Similarly, the ASTM (formerly American Society for Testing and Materials) has been around since 1898 and publishes over 10,000 product standards each year. It has over 35 subcommittees to set standards for sporting goods, and is funded by selling publications of its standards. More recently on the scene is Janda's Institute for Preventative Sports Medicine, which began in 1989 and did the research on soft baseballs, as well as research on soccer goals and shin guards, without a dime of government money. It is funded by individuals and corporations--but not by equipment manufacturers, whose money Janda refuses to avoid the appearance of a conflict of interest. He and other physicians receive no salaries for the research they conduct, and some former professional and Olympic athletes also volunteer their time.
"All of us at the institute feel that if you're doing worthwhile endeavors, that does not have to be supported by the government; it can be supported by individuals and corporations," Janda says. "It's not the sole responsibility of the government to support organizations that are doing high- powered work."
These private safety organizations do not always agree. Janda's group strongly disagrees with NOCSAE's standards for baseballs, which favor the softer balls. NOCSAE criticizes the ASTM's standards for face guards. But as long as no particular device is mandated by law, individual teams and leagues can look at the information and decide what types of devices are appropriate for them. The disagreements, coupled with competition in the marketplace, will probably lead to better products.
The most important parties in deciding on standards for children's sports are the coaches. Although they know that risk is inherent in sports (as it is in life), and that safety must be balanced with cost and competitiveness, they take safety very seriously. Youth Leagues coach Owens, for instance, weighs balls with a balance scale in his basement and has teams in the league experiment with new types of balls and face guards. After testing 24 soft baseballs, he found that one quarter exceeded the league's weight limits and many bounced excessively in the field.
The CPSC's recent report on soft baseballs, which he calls "off base," confirmed his belief that the government has no business interfering with the way he selects equipment for the league. "Why should the government get involved in it?" Owens asks. "Why can't people handle their own affairs? What's this idea that the government knows more than we know? When the government gets involved in things, the tendency is to screw things up rather than make them better."
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