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From Products Liability Law Daily, May 2, 2017

CPSC votes to issue NPR addressing table saws

By Colleen Kave, J.D.

Last week, the Consumer Product Safety Commission (CPSC) voted 3-2 to issue a Notice of Proposed Rulemaking (NPR) pertaining to the risk of blade-contact injuries on table saws. Proponents of the NPR assert that tens of thousands of consumers each year seek emergency treatment for injuries associated with table saws and CPSC must address the hazards posed by these tools. However, discussions surrounding the NPR have revealed philosophical differences between those commissioners who view the proposed performance standard as necessary to protect consumers and those who believe that available technology is sufficient to reduce dramatically the risks of table saw injuries and the Commission should respect consumer choice and individual liberty.

The agency has been evaluating the possibility of a performance standard to protect consumers who use table saws since 2003, shortly after flesh-sensing devices that can stop a saw blade were introduced, and CPSC requested a briefing package on a protective measure in 2006. However, due to what Commissioner Elliot F. Kaye described in a press statement as "political gamesmanship by individuals whose inaction put corporate protection over consumer protection," progress on the standard stalled until the publication of an Advance Notice of Proposed Rulemaking (ANPR) in 2011. According to Commissioner Kaye, CPSC staff have now compiled an "excellent and thorough performance standard to propose and upon which to seek comment." The proposal is broad, does not restrict the method of stopping the blade, and does not require any particular test method to show compliance.

Costs and foreseeability. Expressing his support for the NPR, Commissioner Kaye enumerated reasons for developing a performance standard, including an annual societal cost associated with medically treated blade-contact injuries of more than $4 billion; the inability of consumers to predict the many possible scenarios, such as distraction, deteriorating eyesight and reaction time in seniors, and overconfidence in seasoned woodworkers, that lead to accidents; and the failure of the voluntary standards process up until this point in time. In light of these factors, Commissioner Kaye asserted that the technological advancements in the area of automatic injury mitigation systems over the last decade should be employed to prevent the foreseeable and debilitating amputations and lacerations that have afflicted so many consumers.

Reasonable risk. In a contrasting statement, Commissioner Joseph P. Mohorovic explained that he was not able to join the decision in favor of the NPR. Although he acknowledged the undeniable risk in using table saws, the large numbers of blade-contact injuries reported each year, and the inadequacies of safety guards, Commissioner Mohorovic nonetheless articulated his belief that the Commission should exercise "responsible government" by allowing consumers to decide for themselves what risks to take and how to protect against those risks. Citing CPSC’s mission to protect the public "against unreasonable risks of injury associated with consumer products," Commissioner Mohorovic asserted that, in his view, the risk of injury from table saws addressed by the NPR is a reasonable risk that is not an appropriate subject for CPSC action. A sharp, spinning blade, he stated, is an obvious hazard any reasonable consumer can appreciate; the risk of kickback is well-known and warned against; reasonable consumers understand both the probability and severity of saw-related injuries; the applicable Underwriters Laboratories Inc. (UL) voluntary consensus standard requires instructional material and on-product warnings about blade contact, kickback, and other risks; saws feature different types of devices and guards to protect consumers; and the market already gives consumers a choice to pay more for increased safety innovations or opt for a lower-priced product. In sum, Commissioner Mohorovic opined that the situation at hand is one where CPSC should allow consumers to judge the risk for themselves and to choose to either accept it or avoid it, and the NPR would "forc(e) onto informed consumers a technology and an exorbitant cost that most of them presently choose to forego."

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