Regulation: Play (Regulated) Ball!

The Consumer Product Safety Commission toys with kids' sports.

In early June, several reporters gathered for an unusual press conference at the Baltimore Orioles' Camden Yards stadium. The main speaker was not Cal Ripken Jr. or some other baseball great, but a bureaucrat: Ann Brown, the chairman of the Consumer Product Safety Commission. She was using the ballpark to reel out statistics on her new pet cause–injuries in children's baseball. She bashed the traditional hardball as unsafe for children's play.

At the press conference, Brown touted a new CPSC report recommending softer baseballs with spongy cores made of polyurethane, rubber, or kapok, and protective equipment such as batting helmets with face guards, and break-away bases, which loosen from their anchoring on impact, for children's baseball leagues. "We want kids outside in the sunshine, not inside in an emergency room," she declared. According to the CPSC report, emergency rooms treated 162,000 children for baseball-related injuries last year–less than 1 percent of all children playing the game.

Brown didn't mention that, according to the only peer-reviewed studies on the subject, a softer ball might be even more likely to put a child in the emergency room than a standard ball. "These softer balls might reduce the sting, but they're not going to prevent you from getting killed," says David Janda, an orthopedic surgeon who heads the Institute for Preventative Sports Medicine in Ann Arbor, Michigan. Janda is an award-winning sports medicine researcher who spoke at the Pre-Olympic Medical Conference just before the 1996 summer games and has written a chapter for an International Olympic Committee textbook on safety in sports.

The baseball report is just one part of CPSC Chairman Brown's ambitious agenda. Children's sports are one of her "highest priorities," she has said, and she wants every playground in America to follow the CPSC's rules. She wants to develop guidelines for baseball and other activities that "will be a bible for the industry and jurisdictions."

Coming on the heels of the press conference, the agency also voted 2-1 to consider a petition to require all batting helmets to have attached face guards. To act on the petition, the commission would have to declare that a batting helmet without the face shield is a "hazardous substance" simply because it could be made safer. That position struck CPSC Commissioner Mary Gall as absurd. "Carried to its logical conclusion," she wrote in her dissent, "if a helmet with a faceguard justifies a ban of helmets without faceguards, helmets made out of kevlar (such as the military services might wear) might justify a ban on plastic helmets."

The Camden Yards press conference was typical of Brown's colorful tenure as CPSC chairman. Appointed by President Clinton in 1994, the former toy safety activist at Americans for Democratic Action told reporters at one of her first news conferences, "I've never met a microphone I didn't like, and I plan to use this agency as a bully pulpit." Critics charge that Brown uses her "bully pulpit" to circumvent regulatory procedures, which have a lengthy notice-and-comment period, by pressuring companies afraid of negative publicity into "voluntarily" agreeing with her recommendations.

Former CPSC Commissioner Carol Dawson says that some of Brown's pronouncements are "worse than regulations, because they have not been subjected to the same scrutiny as a regulation has." Dawson notes that with Brown's pronouncements on soft baseballs and other issues, critics were never given a chance to air their views, as they would have in a formal notice-and-comment period.

And critics of the CPSC's soft baseball decision have quite a case. Sports medicine expert Janda charged in a letter to the agency that it was "step[ping] to the plate with a corked bat." Janda found that the softer balls the CPSC recommends frequently weigh more and can stick to the chest longer, and thus can hit the chest with greater force than standard balls do. A 1992 study by Janda and his research team, published in the Clinical Journal of Sports Medicine, reported that "all the tests and comparisons failed to demonstrate a significant advantage with respect to impact force reduction using softer core baseballs" and that softer balls sometimes "exacerbated impact effects."

In a small footnote to an appendix of its report, the CPSC acknowledged that the most recent of the 38 chest-impact deaths it has recorded since 1973 occurred last year after a child was struck with a soft baseball. Newspaper accounts report that the 6-year-old boy suffered a cardiac arrest after a ball his father gently lobbed to him bounced off his glove and hit him in the chest.

The CPSC stated that "the agency has found no convincing evidence that softer balls increase the risk of chest-impact death." It dismisses Janda's studies by charging that the pigs and crash dummies he "used to mimic chest impact deaths in children were not accurate representations of the way death occurs to children on the baseball field." Janda points out that while no models can perfectly simulate the effects on children, the crash dummies he used were of the same quality that the Department of Transportation uses in crash tests. Furthermore, he notes that CPSC officials gave his study a thumbs-up before it was published.

The agency conducted no original research to substantiate that soft baseballs were safer. Susan Kyle, the CPSC report's author, says that Janda's studies were "the only ones we could find" on the subject of chest impact. Janda found only a 4 percent to 8 percent lower risk of head injuries from soft baseballs. But he doesn't believe that compensates for the increased risk for chest injuries–especially since most of the 68 ball-impact deaths the CPSC has recorded since 1973 involve the chest.

"His study was pretty tight," says Robert Verhalen, who reviewed Janda's study as associate executive director for epidemiology at the CPSC in the early '90s. "The commission seems to have rejected his study out of hand." Verhalen, who is now retired, adds, "They run off with less data than that when it's a cause they're in favor of."

It's very frustrating for us to spend 12 years of research on a subject and then have the government come in and disseminate the wrong information," Janda says. This baseball controversy illustrates that government agencies hardly ever just disseminate information–especially when they issue safety recommendations. The newsletter Sporting Goods Intelligence reports that the agency has "float[ed] the idea of requiring labeling on balls saying which ones are appropriate for younger players."

The CPSC report notes that at least five cities already require organized children's baseball leagues to use the softer balls, and the report will likely encourage more to follow suit, even absent regulations. Though the CPSC has no jurisdiction over organized children's baseball leagues, its recommendations will likely spur lawsuits against leagues not using the equipment it recommends.

"You just know there's going to be more lawsuits if a federal official makes a splashy presentation," says Walter Olson, a senior fellow at the Manhattan Institute and author of The Litigation Explosion. "It changes the climate, gets lawyers more interested, and raises the visibility [of an issue]." No federal regulations require soft baseballs (yet), but Olson points out that once the matter gets into a courtroom, "no one knows what's lawful or what isn't when you're dealing with liability."

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."

John Berlau ([e-mail]) is a policy analyst at Consumer Alert, a free market consumer group based in Washington. DC.