What seemed like the longest election cycle ever (probably because it was) finally ended on November 6, 2012 with incumbent President Barack Obama defeating Republican challenger Mitt Romney with 332 to 206 electoral votes to win the White House for another four years. Meanwhile, the GOP retained control of the U.S. House of Representatives, albeit by a slightly narrower margin with the Democrats picking up eight seats, perhaps more with four races still undecided. Democrats maintained their control of the Senate, gaining two seats but remaining five shy of the 60 votes needed to overcome a filibuster. In other words, not much has changed, leaving many to wonder if the political dysfunction and inaction that has characterized Washington as of late will continue in the days ahead.

The good news is politicians on both sides at least acknowledge growing public disgust over Washington’s inability to work together to address the nation’s most pressing issues. The bad news is that we can’t be certain that they will actually change their tactics. In the election’s immediate aftermath, both President Obama and House Speaker John Boehner expressed willingness to compromise but backtracked just a mere week later. While President Obama did invite leaders from both parties to meet at the White House on November 16 to discuss the fiscal cliff, he also urged the House to pass a Senate bill extending the Bush tax cuts only for families earning less than $250,000 a year. Meanwhile, Speaker Boehner reiterated Republicans’ opposition to raising tax rates on anyone, citing a study from Ernst & Young showing that the President’s approach would cost the economy over 700,000 jobs. 

The divided Congress will be asked to solve numerous important problems during the lame duck session including the fiscal cliff, sequestration, whether to raise the debt ceiling and dozens of tax provisions, commonly called “tax extenders,” set to expire at the end of the year. Lawmakers are also expected to move quickly to permanently normalize trade relations with Russia, finally enabling U.S. companies to benefit from the enhanced market access and other advantages that other trading partners have enjoyed since Russia joined the World Trade Organization in August. Meanwhile, manufacturing groups, including INDA, are working furiously behind the scenes to convince lawmakers to pass a Miscellaneous Tariff Bill (MTB) that would extend duty suspension and reduction benefits set to expire at the end of the year. 

Beyond the lame duck, many in the business community are wondering what the election results will mean in other areas of policy. While President Obama has said immigration reform and foreign policy will be key priorities early on in his second term, there have not been many details about other major initiatives. In terms of environmental policy, the President has said he intends to revisit the issue of reducing carbon emissions, although both Environmental Protection Agency (EPA) and Treasury officials have said the administration will not act quickly to pass measures to reduce greenhouse gases and that they expect Republicans to take the lead on a carbon tax.

However, the EPA is expected to continue its ambitious agenda, starting with finalizing a backlog of rules that have been on hold awaiting the outcome of the election. EPA’s final national ambient air standard for particulate matter is due to be released by December 14, and a final rule revising air toxics standards for cement kilns is due by December 20. EPA is also expected to finalize the controversial air toxics rules for boilers and incinerators by the end of the year and to soon propose a so-called Tier III standard to reduce the sulfur content in gasoline. A revised rule on mercury and air toxics standards for new power plants was sent to the White House Office of Management and Budget (OMB) November 7 for final review, and could be finalized soon.

In the meantime, although reforming the nation’s chemicals management regime under the Toxic Substances Control Act (TSCA) has gotten more attention in recent months, it’s unclear whether a TSCA overhaul will make its way through the still-divided Congress. However, even if it doesn’t, many expect the Obama EPA to step up its efforts to regulate chemical safety using its existing authority under TSCA at the same time that a number of states are pursuing their own chemicals reform measures. 

For its part, INDA hopes the recent election results will lead to progress on the long-delayed EPA rule that would help level the playing field for non-laundered industrial wipes.  As we recently reported, the so-called “industrial wiper rule” had stalled at OMB due to a slowdown in rule reviews in advance of the election. Now that the election is past, INDA will continue working with Capitol Hill and administration officials to convince OMB to complete its work as quickly as possible so that the nearly three decade old rulemaking can be wrapped up once and for all.

CPSC Product Injury Database Challenged in Court

In the first legal challenge to the Consumer Product Safety Commission’s (CPSC) product safety database (www.SaferProducts.gov), a federal district court in Maryland Oct. 22 ruled in favor of an unnamed company to stop the CPSC from publishing an incident report that the company claimed was materially inaccurate. Although the company (referred to as Company Doe) repeatedly challenged the accuracy of the report, the CPSC had nonetheless published the report on the website.

The company argued that the harm in the report had not been caused by its product and therefore should not be entered in the injury database. The judge agreed with the company and harshly criticized the CPSC for proceeding to publish the questionable injury report. The court’s decision validated concerns raised by many product manufacturers during the implementation of the database, which is mandated by the Consumer Product Safety Improvement Act of 2008 (CPSIA).

Launched in March 2011, the CPSIA intended the database to be a useful tool for consumers by providing publicly searchable and timely product safety information. After a complaint is submitted to the CPSC, a product manufacturer, importer, or private labeler, has 10 days to challenge the accuracy of the report before it is published in the database. Even when a report is challenged, the CPSC makes the final decision regarding the wording of a published complaint. As there is no reliable mechanism to verify the accuracy of information, the database features a disclaimer that the  “CPSC does not guarantee the accuracy, completeness or adequacy of the contents” of the database, providing little solace to a company when a complaint against its product is erroneous.

In its decision, the Court acknowledged the unnecessary time and resources that Company Doe expended to prevent an incorrect accusation from being made public and criticized the CPSC’s review of the product complaint and decision to publish it. Although the ruling in Company Doe only applies to the litigants and facts in that case, the decision should encourage the CPSC to better vet complaints before publishing them in order to prevent further criticism from the courts. The ruling may also give companies more leverage with the CPSC when challenging the accuracy of reports submitted for publication in the database.