Hidden hazards: Why the government can't always warn you about potentially dangerous products
When you buy something for your home or family, the assumption is that it's probably safe. Somebody must be testing these items and paying especially close attention to products marketed for children and infants.
But the federal agency that's supposed to protect American consumers faces major obstacles before it can reveal that a product on the market is causing injuries or even deaths.
It's a painful reality for Virginia resident Keenan Overton, who doted on his firstborn son, Ezra.
"He was very playful, always smiling like me, curly hair," said Overton. "He loved to be held. He loved to be noticed. And he was just a happy, baby."
Three days before Christmas in 2017, 5-month-old baby Ezra went to sleep for the last time.
"There's no real way to know until you just try to pick up your baby and get no responses," said Overton.
Little Ezra had suffocated in his inclined sleeper. It was a moment Overton said he would never forget.
"It was the worst day of my life," he said. "I broke my hand into the refrigerator, destroyed the whole kitchen.
Ezra was not the first infant to die in a Fisher-Price Rock 'n Play Sleeper — and he wouldn't be the last.
Over the course of a decade, dozens of babies died and hundreds were injured. Some babies' heads flopped forward in the inclined sleeper, cutting off their air supply; others rolled over and suffocated. But neither the company nor the U.S. government issued a warning or recall.
In 2018, Portland, Oregon resident Erika Richter's 2-week-old daughter Emma died while using a Fisher-Price Rock 'n Play Sleeper.
"Unsuspecting consumers believe that there's oversight, not realizing that our own government has to ask permission from companies like Fisher-Price before doing their job and informing the public when a product is killing people," said Richter. "That's not just a problem, that's a tragedy that's costing people their lives."
At a congressional oversight hearing in June of last year, U.S. Representative Carolyn Maloney of New York called it a "national scandal." At the time, Fisher-Price and its owner Mattel revealed the number of child deaths was much higher than the company had originally reported three years earlier.
"We are aware of approximately — I believe the number is currently 97, although those numbers change. As we are also finding some products were not Fisher-Price or incline sleep," Chuck Scothon, a senior vice president and general manager at Fisher-Price and global head of infant and preschool for Mattel, said at the hearing.
For years, what was happening to these babies was a deadly secret, held inside a nondescript office building in a Washington, D.C. suburb.
It's where the U.S. Consumer Product Safety Commission is responsible for overseeing millions of products.
CPSC staffers conduct tests and collect complaints but are often forced to stay silent about potential dangers, thanks to a little-known clause added in 1981 to the Consumer Product Safety Act, called Section 6(b).
"There's no other public safety agency that has similar restrictions on them that 6(b) places on us," said Alexander Hoehn-Saric, chair of the U.S. Consumer Product Safety Commission.
Hoehn-Saric, who was appointed to lead the CPSC last year, says part of Section 6(b) requires his agency to get a company's approval before it can release any information about a product to the public — including warnings or recalls. It's something 6(b) advocates say may protect a company's reputation from unfounded complaints.
"At the end of the day, good companies will work with us," said Hoehn-Saric.
But he says some companies don't cooperate, even when their product may be hazardous to the public.
The agency's recourse is to take them to court. It's a process that can take months or even years.
"Section 6(b) sort of provides that roadmap for how they can game the system," said Hoehn-Saric.
That's not how it works at other federal agencies. The National Highway Traffic Safety Administration can force recalls of vehicles for dangers like faulty airbags. The Food and Drug Administration will order potentially tainted food off store shelves.
"Section 6(b) solely exists to protect companies. Nothing about it offers the consumer any safety protections at all," said Sara Thompson, a resident of Nazareth, Pennsylvania, whose 15-week-old son Alexander died while in a Fisher Price Rock 'n Play in 2011. In an email to CBS News, Thompson continued, "consumers should have the right and ability to have access to ALL incidents reported for products in order to make informed decisions."
"The fact that the system is set up this way should frighten everyone," said Richter.
"These stories are so heartbreaking. It's unacceptable," said U.S. Representative Jan Schakowsky of Illinois. She helped introduce the Sunshine Product Safety Act which would change Section 6(b) to lift what she describes as "a gag rule."
"These are preventable deaths that we see — preventable injuries," said Schakowsky. "A decision was made some time ago to stand in the way of really doing something about it. I think time's up."
In 2019 — 10 years after the Rock 'n Play hit store shelves, bringing in $200 million in sales — details about the rising death and injury numbers were leaked to the public. It was only then, according to the congressional investigation, that Fisher-Price agreed to recall the 4.7 million sleepers that had been sold — allowing the feds to finally alert the public.
In a statement to CBS News, Fisher-Price maintains that the sleeper "was safe" when used according to instructions and that they "voluntarily recalled it" and removed it from the market. [Read the full statement below.]
Today, as Keenan Overton and his new fiancée are expecting a baby boy, he says he'll always think of Ezra as a hero.
"Had he not fallen victim to that device — who knows? It could have still been on the market today and it could have still secretly been taking lives, because he wasn't the first to lose his life in it," he said.
More than a decade after her baby's death, Sara Thompson says more transparency is needed.
"I look around me and wonder what else I own that could have been involved in the death or injury in someone else," said Thompson. "I have the right to know that information."
For now, even if there are numerous complaints, CPSC chair Alexander Hoehn-Saric says the agency must have the cooperation of the maker of a product and their permission to publicize a hazardous product.
"Because of our statute and the way it operates, if I heard about a product hazard this morning, I couldn't tell you about that."
Each year, hospital records show tens of thousands of people are killed in the U.S. and 30 million more suffer injuries related to consumer products including child nursery equipment, toys, sports equipment, home furnishings, kitchen tools and more.
But over the last decade, the CPSC has only received a few thousand reports directly from consumers regarding serious injuries or deaths related to products.
The CPSC urges anyone who's seen a hazard to report it to them at www.saferproducts.gov. Consumer complaints at the website can trigger an investigation that leads to a warning or recall.
Full Fisher-Price Statement
(originally released in 2021; resent to CBS News on Oct. 21, 2022)
The Rock 'n Play Sleeper was designed and developed following extensive research, medical advice, safety analysis, and more than a year of testing and review. It met or exceeded all applicable regulatory standards. As recently as 2017, the U.S. Consumer Product Safety Commission (CPSC) proposed to adopt the ASTM voluntary standard for a 30-degree angled inclined sleeper as federal law.
After the product launched, different independent medical and other expert analyses verified that it was safe when used in accordance with its instructions and warnings. Two studies confirmed that the Rock 'n Play Sleeper was as safe or safer than other sleep environments such as cribs and bassinets, and one of the studies found that the product had far fewer incidents than the SUID rates in cribs, bassinets, and playpens. In addition, we reported significant incidents to the CPSC beyond the requirements of the Consumer Product Safety Act.
Though the facts show the Rock 'n Play Sleeper was safe when used in accordance with its instructions and warnings, we voluntarily recalled it more than three years ago and have continued to work diligently to remove all recalled product from the market.
We reaffirm our commitment to parents that we will always put their children's safety first.