May 15, 2017

On April 27, 2017, the Commission, by a 3-2 vote, approved the issuance of a Notice of Proposed Rulemaking (NPR) to address blade-contact injuries suffered by users of table saws.  I joined the majority in this vote and believe that it represents a major step forward in protecting consumers.

Injuries and Costs Associated With Table Saws

Unless one has seen the gruesome result of a table saw accident, one cannot truly appreciate the horror of these injuries.  Accordingly, I have attached to the back of this statement two photographs of typical amputation injuries from table saws.

In order to understand the magnitude of the problem, one must multiply these images roughly 11 times a day every day of the year to calculate the number of amputations resulting from table saw accidents.[1]  And that is only part of the problem:  in fact, there are an equal number of fractures from table saws and almost the same number of severe lacerations.  All in all, these accidents total roughly 54,850 medically-treated injuries every year.[2] 

To put these numbers in context, I note that CPSC has jurisdiction over roughly 15,000 product categories.  Of all these, table saws have the dubious distinction of constituting the number one source of consumer product amputations, comprising almost 20 percent of all reported amputations.[3] 

At the risk of providing unduly graphic detail, I will describe the experience of one high school student, Josh Ward, who suffered a monumental injury while assisting his woodshop teacher on a project.  Evidently, the board he was feeding into the blade caught in the saw, pulling Josh’s hand into the blade, injuring him severely.  By all accounts, Josh was acting carefully, in accordance with the training he had received on the proper use of a table saw.  Josh was rushed to the emergency room where he needed more than 1,000 stitches during an initial 12-hour surgery, with two hand surgeons in attendance.  In addition to the permanent loss of two fingers, Josh lost 50 percent of the function of his remaining fingers despite an additional three surgeries in the first seven days after his accident.  Then came seven months of challenging physical therapy.  And, the long term effects of these injuries include a high risk of infection due to cut nerves and loss of blood flow.  In fact, he has already experienced a two-year long bone infection that required ten rounds of antibiotics and 180 hours of hyperbaric oxygen therapy[4] – at a cost so far of $350,000.

What makes this episode so unusual is that it is not unusual.  Thousands of table saw injuries like this occur every year and will continue unless the Commission acts.

Moreover, the costs associated with table saw injuries are breathtaking.  Each year, the public incurs roughly $4.06 billion in costs from medical expenses, lost wages, and pain and suffering.[5]  Anyone looking at these numbers should shudder at the appalling and unnecessary burden table saw injuries impose on the public.  In fact, the vast majority of these costs can be reduced or eliminated by the use of an extremely innovative safety technology that I describe in the next section of this statement.  Staff estimates that this technology can mitigate or eliminate 70%-90% of blade contact injuries, which I believe to be a conservative estimate.

Comparing the costs and benefits of a mandatory standard shows that a CPSC rule would be overwhelmingly cost-effective.  According to staff, a CPSC rule would produce between $625 million and $2.30 billion in net benefits each year.[6]  So large are the benefits that even if one excluded the costs of pain and suffering, the rule would still be cost-effective.[7]

Addressing Table Saw Injuries: The Development of AIM Technology

In 1999, Steve Gass, an amateur woodworker and full-time patent attorney with a Ph.D. in Physics, wondered if it was possible to invent a way to stop a saw’s spinning blade quickly enough to avoid serious injury.  Applying his technical skills, he developed a prototype saw and began testing it with hot dogs.  Subsequently, he conducted a test on his own finger[8] and, to his delight and relief, the blade stopped instantly, and he needed only a band-aid to deal with a small nick.

Dr. Gass’s skin-sensing/blade stop system operates by applying a small amount of electrical voltage to the blade of a saw.  If the saw detects a change in current from contact with a user’s hand, an automatic braking system is activated, jamming an aluminum lock into the blade – stopping it in less than five milliseconds.  The result is a small cut, not a severe laceration or amputation.  This safety system is now referred to as Active Injury Mitigation (“AIM”) technology.

Encouraged by the success of his safety mechanism, Dr. Gass joined with two colleagues to exhibit and market the technology.  Although he won glowing reviews and awards from various observers,[9] his quest to license AIM technology to members of the table saw industry came to naught despite several years of trying.  Accordingly, in November 2004, Dr. Gass and his colleagues started their own company, SawStop, and began manufacturing and selling table saws.[10]

Along with introducing their product in the marketplace, Dr. Gass and his colleagues petitioned the CPSC to mandate a performance standard that would require table saws to stop or retract their blades upon contact with a person such that only a small cut would result.[11]  Without describing in detail the various unfortunate peregrinations that befell SawStop’s petition over the years,[12] I note that in October 2011, the Commission finally published an Advance Notice of Proposed Rulemaking (ANPR) seeking comments on whether blade contact injuries from table saws constitute an unreasonable risk of injury warranting Commission action.[13]  And, the Commission has now – almost six years after publishing the ANPR – decided to continue the rulemaking by publishing a Notice of Proposed Rulemaking. 

Policy Concerns

As with any proposed rule that would have such a dramatic impact, one should not be surprised that a number of issues and concerns have been raised about it.  I shall address what I consider to be the most important of these.

Unreasonable Risk/Assumption of Risk/Freedom of Choice

The Consumer Product Safety Act (CPSA) directs the Commission to reduce or eliminate “unreasonable risks” in the marketplace, but does not define the term.  The legislative history, however, provides some guidance by focusing the Commission’s attention on three critical determinants of this term: the cost, utility, or availability of a product under the agency’s rule.[14]  Unless the Commission can find a favorable balance between a product’s hazards and these factors, it cannot find a product to be an unreasonable risk.

As noted by my friend and colleague, Commissioner Joe Mohorovic, in his statement on the table saw vote,[15] some courts have provided additional guidance regarding unreasonable risk.  Most important to him is language from the 1978 Aqua Slide case[16] in which the court ostensibly placed some responsibility on consumers to protect themselves:

[A]n important predicate to Commission action is that consumers be unaware of either the severity, frequency, or ways of avoiding the risk.  If consumers have information, and still choose to incur the risk, then their judgment may well be reasonable.[17]

In isolation, these words lend themselves to an interpretation that I doubt the court intended, i.e., warning the public of a risk obviates the need for safety measures to reduce the risk.   Assuming arguendo that fully warning the public of certain risks is even possible, one can see the inadequacy of an overbroad application of this principle.  Under such an approach, one could argue that virtually no standard calling for safer designs need ever be written where a safety warning could be used instead.  Never mind how inexpensive, injury-reducing, or cost-effective a redesign might be, simply providing a warning would be all that was necessary to “protect” the public.[18]  Were such an approach ever adopted, it would invalidate dozens of safety standards at CPSC, NHTSA, FDA and elsewhere, placing the public at enormously greater risk of injury and death.[19] 

Of course, Aqua Slide is not the last word on the meaning of the term “unreasonable risk” or on interpreting the CPSA.  In fact, just a few years after its decision in Aqua Slide, the Fifth Circuit, in Southland Mower,[20] clarified and elaborated many of the issues raised in the earlier case.    

In Southland Mower, several industry groups challenged various aspects of the Commission’s lawn mower standard.  In addition to clarifying the law, this case seems particularly relevant to the proposed table saw rule because it also involved a product with spinning blades that slices and amputates body parts, leading to the Commission’s conclusion that new safety technology for lawn mowers was needed to protect consumers. 

In contesting a requirement to prevent consumers from defeating a safety shield for lawn mowers in the agency’s standard, the Outdoor Power Equipment Institute (OPEI) made an argument similar to Commissioner Mohorovic’s claim that consumers’ choices must be respected even if the agency believes those choices to be wrong.[21]  In addressing that argument, the Fifth Circuit elaborated on the appropriate law governing the concept of “unreasonable risk” and explained the relevance of “assumption of risk” –

In essence, OPEI argues that the risk of injury from consumer defeat of safety shielding is not “unreasonable” because consumers would have chosen to incur the risk, and their judgment must be respected.

However, Congress intended for injuries resulting from foreseeable misuse of a product to be counted in assessing risk. [citations omitted]  This principle, and not the tort liability concept of “assumption of risk,” governs the Commission’s authority to treat consumers’ foreseeable action of removing safety shields as creating an unreasonable risk of injury and to issue rules addressing that danger. [citations omitted] Of course, a fully informed choice on the part of consumers to employ a dangerous product may provide information that is relevant to the Commission’s assessment of the reasonableness of a risk of injury.  For example, consumers’ decisions to use sharp knives may pose a reasonable risk of injury because duller knives, while safe, would be useless for cutting purposes, and the Commission could reasonably find that consumers have accurate information of the severity and likelihood of injury posed by sharp knives….  In the present case, however, there is no evidence that consumers accurately appreciate the nature of the risk of blade-contact injuries and that their presumed willingness to defeat protective measures is reasonable. (Emphasis added)[22]

In other words, the court placed in a useful context the notions of unreasonable risk, assumption of risk and, by implication, freedom of choice.[23]  Above all, there can be no freedom of choice where consumers do not fully appreciate the risks facing them from dangerous products. 

It is no answer to say that consumers are fully informed or fully appreciate the risk simply because they know a spinning blade of a lawn mower or table saw can cut them.  That is about as useful as knowing that a plane can fall from the sky.  The essence of understanding a risk is to know how likely it is that an injury will befall a consumer when he or she uses a dangerous product and how an injury might occur. 

In the case of table saws, this knowledge seems sorely missing.  As noted by staff, several factors undermine the notion that consumers truly appreciate the nature of table saw risks.  Notwithstanding the obvious hazards of a spinning blade, the fact is that many consumers do not understand or appreciate “the fact that sudden movement of the workpiece from kickback can cause the operator to lose control of the workpiece and cause his/her hand to be ‘pulled’ into the blade.”[24]  Moreover, for a variety of reasons, including lack of training, inexperience, fatigue, and distractions, consumers often do not have a proper sense of the extremely serious nature of table saw use.[25]  In fact, “even consumers who are fully aware of the hazards and how to avoid them may suffer from slips or lapses that could lead to blade contact and injury despite the consumer’s best intention to use a product safely.”[26]  Unfortunately, any of these lapses can result in a ghastly injury in a split second without any warning.

In other words, for the most human and foreseeable of reasons, it is unreasonable to assume that consumers truly understand and appreciate the risk of injury from table saws such that they should be denied the protection of this safety standard. 

Furthermore, and importantly, the concept of “reasonable risk” is not one that is fixed and stagnant in time.  What once may have been a reasonable risk can and does become unreasonable once technology makes it possible to mitigate that risk.[27]  Thus, it is entirely possible to have a product that presents a reasonable risk at one stage in its production – because there is no alternative safer choice and the utility of the product is high – but that same product later be considered unreasonably dangerous once safer alternatives enter the marketplace.

Market Failure/Market Choice

Commissioner Mohorovic further argues that because the market currently offers consumers the choice of purchasing table saws with AIM technology, there is no market failure to justify a mandatory standard.  He states “…there is no role for CPSC to play in pushing industry forward.  The market is already giving consumers a choice.”[28]

I certainly understand this argument, but when it comes to safety, I believe “market choice” claims like this frequently produce suboptimal outcomes.  Although safety concerns occasionally play a strong role in influencing consumers’ choices – most notably with the purchase of toys and other children’s products[29] – too often safety falls short in generating meaningful consumer demand.[30]     Unfortunately, most consumers automatically assume the products they purchase are “safe” and often don’t appreciate that some products in the market present serious risks that could be avoided.

There are important reasons for the failure of consumers to understand and appreciate product risks.  Study after study has confirmed that consumers’ perception of risk is often flawed for a variety of perfectly human reasons.  The academic literature is rife with studies demonstrating how badly consumers misperceive risk.  We overestimate risks splashed in the headlines, e.g., shark attacks or terrorist attacks, but underestimate risks associated with life’s vices, e.g., tobacco use or drinking while driving.  Similarly we underestimate risks that we believe we can control even when statistics clearly demonstrate the opposite.[31]  What this means for thoughtful public policy is that relying strictly and solely on market demand can sell public protection short, particularly where, as with table saws, consumers are not necessarily making truly informed choices.

I see an additional market failure with respect to table saw risks.  That is, consumers’ injuries from table saws do not affect them alone, but have consequences for their fellow citizens.  This is the issue of externalities. Externalities exist when “one party’s actions impose uncompensated benefits or costs on another party.”[32]  Externalities are important because they give rise to obligations to protect the public at large even in the face of resistance or indifference among consumers.

On this point, I note that CPSC staff observes that victims of table saw injuries incur many of the costs of table saw accidents mainly because they are the ones who undergo the pain and suffering of such injuries.[33]  Even given that fact, however, society at large still incurs a substantial proportion of the burdens of table saw injuries, including medical treatment, lost wages, and unemployment compensation to the tune of roughly $1 billion every year through higher insurance premiums, unemployment insurance, and higher taxes.  Given this, we as fellow citizens who are affected by those who purchase these products should have some say in table saw safety.[34] 

This is not a new thought.  We require drivers – even when they don’t like it – to get licenses and obey traffic laws, including the requirement to buckle seat belts.  In other words, society appropriately imposes safety requirements on citizens because we want them to be safe and not burden us with unnecessary fatalities and injuries.  In such cases, we do not simply warn citizens of the hazards and leave it to them to choose whether to assume those risks.  We take more direct action by imposing rules that lessen the societal costs imposed by consumer injuries.

On this point, I turn to the wisdom of columnist George Will, who responded to the pointed criticism of then candidate Ronald Reagan regarding the government’s attempts to require gasoline mileage standards.  According to Mr. Reagan, “the automobile and the men and women who make it are under constant attack from Washington.”  The attackers are “elitists … some of whom seem obsessed with the need to substitute government control in place of individual decision making.”  In response, Mr. Will wrote a thoughtful explanation of the appropriate role of government with respect to market failure:

A free market is a nifty arrangement for recording preferences and allocating resources accordingly.  But there is a point at which the obeisance of political persons before market decisions is, like other forms of populism, an excuse for not leading.  At that point free-market principles are less an aspect of their political philosophy than a substitute for political philosophy.

The state is more than a device for serving the immediate preferences of its citizens.  Its purpose is to achieve collective objectives, and the collectivity – the nation – includes a constituency of generations not yet born.  That is why the state, unlike an economic market, has responsibilities, and must look down the road farther than citizens generally look in their private pursuits.  Thus the state’s legitimate purposes are more complex than the sum of citizens’ private purposes; the public interest is not just the automatic, unguided outcome of the maelstrom of private interests.[35]

Although I do not always agree with Mr. Will, I believe he got this point exactly right.

Industry Voluntary Standard

CPSC operates under a special mandate when it comes to voluntary standards.  Before we can issue a mandatory standard, we must seek to work with the voluntary standards community to see if an adequate voluntary standard that is substantially complied with can be developed instead.[36]  In the case of table saws, the standards setting group for this product for the past 46 years has been Underwriters Laboratories (UL).[37]  With respect to AIM technology, UL spent almost five years developing a performance test and seeking industry approval for the technology.

In fact, UL developed an excellent set of performance requirements for AIM technology that now forms the basis of CPSC’s draft standard.[38]  Unfortunately, every time UL has balloted AIM technology, industry participants have overwhelmingly voted it down – most recently in March 2016 despite a letter from CPSC staff expressing strong support for including AIM technology in UL’s standard.[39] 

Given the strong rejection by members of the table saw industry time and again, I believe it fair to say that the odds of this group ever approving AIM technology are incalculably small.  Accordingly, if the Commission is to protect the public, we must do so with a CPSC rule.

The official industry position that the latest UL standard adequately addresses the risks of blade contact remains unchanged.  Unfortunately, the data show otherwise.  In 2009, the industry approved a voluntary standard requiring riving knives for the prevention of kickback and newly designed modular blade guards to protect consumers from saws’ spinning blades.  Although CPSC staff believes that these steps do improve the safety picture to a small extent, they fall well short of adequately protecting saw users.[40]  Part of the problem is that table saw users must remove the modular blade guards to make certain important cuts, thereby exposing themselves to a serious risk of injury.[41] 

The problem, however, goes deeper than situations when blade guards are removed.  Unfortunately, staff has documented that even saws used with riving knives and modular blade guards can still produce injuries – thus, the need to go beyond the voluntary standard.[42] 

Cost/Benefit Issues

In order for the Commission to promulgate a safety standard under the CPSA, we must find that the benefits from the rule “bear a reasonable relationship to its costs.”[43] As I read this statutory language, I see no absolute requirement that the benefits exceed the costs of a rule – just that they be reasonably close in magnitude.  Nevertheless, to the best of my knowledge, the agency has insisted that the ratio be a positive one, and I see no basis for taking a different approach with table saws.

     i. Aggregate Net Benefits:  There is no doubt that aggregate net benefits vastly outweigh the costs of the proposed table saw rule.  The societal cost of table saw injuries in 2015, the latest year for which we have data, amounts to $4.06 billion.  Based on staff’s analysis, the net benefits (benefits minus costs) add up to between $625 million and $2.3 billion.[44]  In other words, the carnage from table saws is so great that even adding price increases to table saws more than justifies taking regulatory action.

     ii. The Risk of Injury on Different Types of Saws:  Notwithstanding the very favorable aggregate ratio, staff has advanced an additional concern regarding cost/benefit issues.  Table saws come in three different types:  bench saws, contractor saws, and cabinet saws.[45]  Each is used in different ways,[46] and each potentially carries different injury patterns.  In order to see whether injury patterns differed significantly, staff undertook a special study in 2007-2008 addressing the three types of table saw.  Unfortunately, comments from the public regarding this study led staff to question the reliability of the data in the study.  This led to a second special study in 2014-2015 by a contractor, which also proved problematic due to inconsistent observer methodologies.[47]  Accordingly, CPSC staff has now developed a comprehensive, carefully-drawn CPSC-driven study that will be conducted over the course of the next year that should provide the data sought by staff.

I mention these studies because they are a product of staff’s desire to develop a cost/benefit model not only for table saws in the aggregate, but also for each type of saw commonly sold.  While I admire the staff’s attention to detail, I maintain a large degree of skepticism that the CPSA requires such a micro analysis.  I note, for example, that when the CPSC wrote its lawn mower standard, we did not feel it necessary to undertake a separate blade-contact injury analysis for gasoline mowers versus electrical mowers even though it is conceivable that the two might have had different injury rates.  It was sufficient that both types of mowers produced lacerations, amputations, avulsions, and similar injuries in roughly the same manner.

Similarly, although I acknowledge that bench saws and cabinet saws might have somewhat different injury patterns, those differences would not be because one type of table saw is inherently riskier than the other.  I say this because I have heard a suggestion that cabinet saws carry a higher injury pattern than bench saws.  If this is correct, it will be because of one and only one reason:  cabinet saws are used much more frequently than bench saws.  To pick an analogy:  if my neighbor and I live next to a minefield and he walks through it every day of the year, but I walk through it only one day a year, the odds are high that my neighbor is more likely to step on a mine than I am.  That, however, does not mean that for any given stroll my neighbor takes, he is at greater risk than for any given stroll of mine.  The risk per stroll is the same.  To me, this is precisely the situation with table saws.

Accordingly, although I look forward to obtaining the results of the 2017 special study, I do not do so with the expectation that the results will convince me that the Commission should exclude any type of table saw from its rule.  Using a table saw places a consumer at roughly the same risk of injury irrespective of which type of saw is used.[48]  The only difference is the number of hours of use, not the mechanical configuration or any other aspect of saw design.

     iii. Breakeven Cost-Benefit Analysis:  Given the concern about needing injury data for the different types of saws, staff turned to a technique the agency used previously in our NPR on ROVs called a “breakeven” analysis.[49]  Under this approach, staff has developed a table of the most plausible injury patterns likely to occur with table saws.[50]  Staff then estimated the number of injuries for each of the saw types that would need to be prevented for the benefits of the proposed rule to equal or exceed the costs.[51]  Under virtually all of staff’s scenarios, the draft standard has proved to be extremely cost-effective.[52]  The one instance where the cost-benefit ratio was slightly negative required assuming that the annual risk of injury for cabinet saws was roughly 40 times the risk for bench saws.[53]  Of course, such an assumption defies common sense.  I am prepared to accept data showing that more injuries (nowhere near the 40 times estimate made by staff) are recorded on cabinet saws than on bench saws because cabinet saws are used much more often than bench saws.  But, again, I see no evidence that cabinet saws present any greater risk than bench saws. 

Accordingly, I await the completion of staff’s 2017 special study.  Once those data are available, the Commission and the public will be able to see which of the injury scenarios is most accurate in refining staff’s cost/benefit analysis.  That said, I see little likelihood that they will lead the Commission to modify or change its cost/benefit analysis in any way not already contemplated in staff’s breakeven analysis.

Patent/Monopoly Issues

It comes as no surprise that when Dr. Gass developed AIM technology, he, as a full-time patent attorney, patented his invention. Although I have heard occasional grumbling about this, most reasonable observers seem to have no problem with entrepreneurs using the patent system.[54] 

Of course, the fact that CPSC might mandate patented technology injects a new factor in the regulatory equation.  If the only way for manufacturers to comply with a CPSC standard is to license patented technology, the agency needs to be sensitive to the possibility of abusive monopoly pricing.

I believe that the CPSA provides both a sufficient and proper framework for our analysis of SawStop’s licensing approach.  Section 9 of the Act directs the Commission, in promulgating a safety standard, to make appropriate findings for such a standard, including –

(C) the need of the public for the consumer products subject to such rule and the probable effect of such rule upon the utility, cost, or availability of such products to meet such need; and
(D) any means of achieving the objective of the order while minimizing adverse effects on competition or disruption or dislocation of manufacturing and other commercial practices consistent with the public health and safety.[55]

SawStop disputes the proposition that its AIM technology is the only way to comply with CPSC’s proposed standard, and CPSC staff indicates that several alternative approaches to meet the proposed requirements are possible.[56]  Nevertheless, for the sake of argument, I am prepared to accept the notion that most manufacturers, at least initially, will adopt SawStop’s technology if they intend to continue producing table saws under a CPSC rule.  That fact alone raises few, if any, significant concerns.

What would raise concerns is if SawStop insisted on charging abusive licensing fees or refused to license its technology to any willing buyer.  As I read staff’s analysis, neither condition is present in this proceeding.  In their petition to CPSC 14 years ago, Dr. Gass and his associates pledged to limit their licensing fee to 8 percent of the wholesale price of any saw sold with their AIM technology.[57]  That pledge remains in effect.  And, they have further pledged to license this technology to any and all takers upon the promulgation of CPSC’s standard.[58]  Whether CPSC should seek a more definitive commitment from SawStop is an open question,[59] but assuming the commitment is reliable the staff has concluded that the section 9 findings support going forward with the standard.

Specifically, the staff has determined that SawStop’s license fee, at least in the short run,[60] should add between $37-$57 to the cost of a typical bench saw (the most price-sensitive model); $99-$136 to a typical contractor saw; and $187-$223 for a typical cabinet saw.[61]  The cumulative cost would likely be $30-$35 million annually.[62] Frankly, these numbers pale in comparison to the $4 billion in societal costs imposed by table saw injuries.

Applying the findings required by section 9 of CPSA to the staff’s very thorough and comprehensive calculations, I would characterize the impact of the proposed standard as significant but not close to disqualifying for the industry or table saw customers.[63]  Moreover, staff has substantially mitigated any negative impact of the standard by recommending a three-year period between the promulgation date and the date the standard becomes effective.[64]  This lengthy period should enable manufacturers to retool their production processes and adjust their pricing such that any negative impact of the standard will be minimized.  And, of course, virtually eliminating the hazards of amputation and serous laceration is incalculable.

FRAND Issues

Shortly before the Commission held its briefing on table saws, attorneys for one of SawStop’s competitors submitted a letter raising what are called FRAND issues.[65]  FRAND is shorthand for the term “fair, reasonable, and non-discriminatory,” and refers to voluntary agreements by patent holders participating in voluntary standards proceedings to agree to negotiate the licensing of their technology on non-abusive terms.[66]  Although the letter caused a bit of a stir at the Commission, I find no merit in its argument that the law requires SawStop to enter into a FRAND agreement before CPSC could proceed to develop a mandatory standard.[67]   

I note that FRAND issues are primarily relevant in voluntary standards proceedings when a patent holder’s technology is essential to the development of the voluntary standard (the term, “standards essential patent,” or SEP, is often used to describe such patents).  To the best of my knowledge, no voluntary standards body has declared SawStop’s AIM technology to be a “standards essential patent.”  Moreover, SawStop vigorously disputes the claim that its technology is standards essential.[68] 

Even assuming for the sake of argument, however, that SawStop’s AIM technology might be essential for complying with a CPSC table saw rule, I see no useful purpose in looking to a FRAND agreement to address the issues raised by SawStop’s patents.  I see no legal authority available to CPSC to mandate a FRAND agreement.  Even if we had such authority or the authority to condition our promulgating a standard on a FRAND agreement, I would oppose our exercising this authority.   

First, there is simply no need for FRAND agreements to resolve the economic issues raised by CPSC’s proposed rule.  As I have stated, our authority under CPSA sets forth the economic findings that the Commission must make in order to promulgate a safety standard.  These findings are more than adequate to ensure that any adverse impact from patented technology on the cost, utility, or availability of table saw is reasonable – and balanced by the benefits accruing from the standard.  Staff has done the calculations and determined that the impact, while initially significant, is more than justified by the reduction in the injuries associated with table saws.

Second, FRAND agreements involve parties negotiating among themselves, not CPSC setting FRAND rates.  And, as acknowledged in the attorneys’ letter to CPSC, setting FRAND rates “is very complex and time-consuming.”[69]  In fact, a cynic might well conclude that delay is the very reason that the attorneys advanced their FRAND claim.  Were the Commission to succumb to such a claim, it seems likely that we and the courts would face endless squabbles – no doubt extending for years – among industry participants about whether the parties were negotiating FRAND terms in good faith.  Moreover, having the Commission even indirectly involved in resolving FRAND disputes – a prospect that is daunting indeed – would place us in the unfortunate position of choosing winners and losers in the market, a task for which we have neither the expertise nor the authority.

Third, and perhaps most important, were the Commission to agree to participate in some fashion with a FRAND approach, that would bring our proceeding to a grinding halt since we would no longer have a fixed license fee number upon which to analyze the costs and benefits of the proposed rule.[70] 

Instead of leaping into a FRAND quagmire, the Commission actually has all the information it needs to move forward with a table saw standard.  As I said, we know the precise fee that SawStop will charge for its AIM technology, and we know that the company has committed to license this technology on a non-discriminatory basis.  Nothing more is needed to meet our statutory obligations under CPSA.

Conclusion

Mark Twain once said, “A thing long expected takes the form of the unexpected when at last it comes.”  I feel that deeply with the table saw NPR, and hope that the future will be less time-consuming and more predictable.  Having waited for so many years for the Commission to continue moving the process of setting a safety standard for table saws, I eagerly look forward to reading the multitude of comments that I expect will be submitted to the agency and to finally taking the step of promulgating this rule.  I have no illusions that the next step will be easy.  It may be as fraught as the ones taken to get where we are, but I believe the cause of consumer safety is worth it.

Photographs of Table Saw Injuries



 


[1] Safety Standard Addressing Blade-Contact Injuries on Table Saws (“Draft NPR”) at 1.  In fact, table saws account for 52 percent of all amputations related to workshop products under CPSC jurisdiction. See Sarah Garland, Table Saw Blade-Contact Injury Analysis (November 17, 2016) (“Tab B”) at 10.

[2] Tab B, at 6-7. 

[3] Id. at 7 and 34.  (“Table Saw injuries have significantly larger proportions of diagnoses for laceration and amputation [than other products under CPSC jurisdiction].”  In other words, table saws beat products that also slice and amputate, such as chain saws, circular saws, lawn mowers, or hedge trimmers.

[4] Hyperbaric oxygen therapy involves lying in an enclosed chamber breathing oxygen under high pressure.  It can be extremely uncomfortable and risks lung damage, fluid buildup, bursting of the middle ear, sinus damage, changes in vision, or oxygen poisoning, which can cause lung failure or seizures.  See http://www.hopkinsmedicine.org/healthlibrary/conditions/physical_medicine_and_rehabilitation/complications_of_hyperbaric_oxygen_treatment_134,148/ .

[5] William Zamula, Gregory Rodgers & Mark Bailey, “Preliminary Regulatory Analysis of the Draft Proposed Rule for Table Saws,” Tab C, Staff Briefing Package (December 2016)(“Tab C”) at 2.  The breakdown is roughly $1.2 billion in medical costs and work losses and roughly $2.86 billion in pain and suffering. 

[6] Id. at 3.

[7] Draft NPR, at 139.  Of all the factors that I would never exclude from a cost-benefit analysis for table saws, pain and suffering are at the top of the list.

[8] Not advisable.  Please do not try this at home – or anywhere else.

[9] SawStop won the Challengers Distinguished Achievement Award at the International Woodworking Fair in August 2000.  The company also received the CPSC Chairman’s Commendation Award in 2001 for “developing innovative safety technology for power saws intended to prevent finger amputations and other serious injuries.”  In 2002, Popular Science named SawStop’s technology one of its “100 Best New Innovations.”

[10] In describing Dr. Gass’s invention, I need to note that I am not Dr. Gass’s champion.  I champion injury reduction approaches like AIM technology, which is not necessarily unique to him.  As CPSC staff has noted, there are other ways to achieve the benefits of AIM technology that do not use Dr. Gass’s approach.  See, infra note 56 and accompanying text. 

[11] CPO3-2 (April 15, 2003).  The specific request was for saws to be equipped with –

A reaction system to perform some action upon detection of such contact or dangerous proximity, such as stopping or retracting the blade, so that a person will be cut no deeper than 1/8th of an inch when contacting or approaching the blade at any point above the table and from any direction at a rate of one foot per second. I cite the petition’s specific language to emphasize that it was written purely in terms of performance requirements.

[12] Among the challenges along the way have been the changing membership of the agency and the loss of a quorum at a critical point in the journey.

[13] 76 Fed. Reg. 62,678 (October 11, 2011).

[14] As noted in the House Committee Report, these three factors are fundamental to the determination of what constitutes an unreasonable risk:

An unreasonable hazard is clearly one which can be prevented without affecting the product’s utility, cost or availability; or one which the effect on the product’s utility, cost or availability is outweighed by the need to protect the public from the hazard associated with the product.
H. Rep. No. 1153, 92d Cong., 2d Sess. 33 (1972)

[15] Statement of Commissioner Joseph P. Mohorovic on the Commission’s Proposed Mandatory Rule Regarding table Saws (April 27, 2017) at 3.  In this statement, Commissioner Mohorovic quotes my former boss, Commissioner David Pittle, at length regarding Commissioner Pittle’s definition of what constitutes a “reasonable risk.” Commissioner Mohorovic interprets Commissioner Pittle’s definition to conclude that table saws present a reasonable risk.  Needless to say, Commissioner Pittle, who has spent the past 4 1/2 years on a UL standards development committee pushing the organization to develop and adopt a voluntary safety standard mandating AIM technology, vigorously disputes Commissioner Mohorovic’s interpretation.

[16] Aqua Slide ‘N’ Dive v. Consumer Product Safety Commission, 569 F.2d 831 (5th Cir. 1978).  In this case, the Court invalidated several mandatory warnings in the standard based on its conclusion that the Commission failed to provide sufficient empirical justification for the specific wording of the warnings.  Notwithstanding the court’s invalidation of the warnings, it left untouched specific requirements for slide materials, structural integrity, installed angle of slides, slip resistance (and curvature) of slide treads, and requirements for handrails, side rails and slide slope angle.  See 16 CFR Part 1207 et. seq.

[17] Aqua Slide ‘N’ Dive, 569 F.2d at 839.

[18] Public health experts generally dispute the notion that warnings are as effective as product redesign in protecting the public.  See, R. Adler & R.D. Pittle, Cajolery or Command: Are Education Campaigns an Adequate Substitute for Regulation?, 1 Yale J. on Reg. 159 (1984)(citing numerous studies).

[19] NHTSA provides an excellent example of the benefits of product redesign.  In the years between 1966-2012, after NHTSA began writing safety standards, the American population increased by 25 percent yet the number of auto fatalities (51,000) dropped dramatically (33,500) – a drop of 80 percent in deaths for each 100 million miles driven. See M. Lemov, Car Safety Wars: One Hundred Years of Technology, Politics, and Death, at xii.  To say the least, merely warning drivers of the risks of auto accidents from unsafe cars would have produced almost no change in the fatality picture.

[20] Southland Mower v. Consumer Product Safety Commission, 619 F.2d 499 (1980).

[21] According to Commissioner Mohorovic,

…I believe the risk of injury from table saws that our NPR seeks to address is a reasonable one and not an appropriate subject for Commission action.  I believe consumers have made a choice and, even if we would choose, differently, we should respect that choice.
Mohorovic Statement, at 3-4.

[22] Southland Mower, 619 F. 2d at 513.

[23] Although I support the idea of freedom of choice in most situations, in my forty-plus years of involvement in consumer protection, I have seen too many instances in which those advocating greater freedom of choice for consumers all too often have used this argument simply to block or push for a rollback of protections against fraud, dangerous products, environmental destruction, or other market abuses.

[24] Staff Briefing Package (January 2017) at 64.

[25] Id.  See also, Tab C, at 8-9.

[26] Draft NPR, at 100.  As noted by staff during the Commission’s briefing last month, there is no evidence indicating that table saw users suffer injuries as a result of drug or alcohol use or that they use table saws in a reckless manner.  To the contrary, many victims of table saws are careful, experienced users.

[27] Examples abound in the safety universe.   Any one of the following once thought to be reasonable risks would clearly present an unreasonable risk if sold today:  refrigerators with doors that cannot be easily opened from inside the appliance; toxic chemicals or dangerous medications sold in packages without child resistant closures; architectural glass that shatters into dangerous shards; children’s cribs with wide slats that could catch and strangle infants; and automobiles sold without seat belts.

[28] Mohorovic Statement at 7.

[29] Parents and society typically place great weight on safety for children because infants are involuntary risk takers and need others to protect them.

[30] Automobile safety provides one of the clearest examples of the limited demand for safety.  In 1956, Ford Motor Company marketed cars with new features such as seat belts and padded dashboards with the thought that safety claims would give them a market advantage.  The campaign failed, leading to the barb, “1956 was the year that Ford sold safety and GM sold cars.”  To be fair, in recent years, auto safety has become more popular as a selling point for companies like Volvo and Subaru, but this change in attitudes has taken decades and still has limited appeal.  Fortunately, we as a society have insisted on safer cars notwithstanding limited consumer demand.  See supra note 19 and accompanying text.

[31] Many consumers insist on driving rather than flying to their destinations because they feel in control of their automobiles.  Yet, driving is many times more dangerous than flying. See Stephen Robbins, Organizational Behavior 139 (2000)(“if flying on a commercial liner was as dangerous as driving, the equivalent of two 747s filled to capacity would have to crash every week, killing all aboard, to match the risk being killed in a car accident.”). Here are a few of the multitude of articles exploring consumer misperceptions of risk:  R. Lofsted,  “Communicating Food Risks in an Era of Growing Public Distrust,” 33 Risk Analysis 192 (Nov. 2, 2011); A. Revkin, “When Risk Misperceptions Create Risks,” NY Times (July 18, 2011) (Opinion Pages); W. Verfbeke, I. Sioen, Z.Pieniak, “Consumer Perception Versus Scientific Evidence About Health Benefits and Safety Risks From Fish Consumption,” 4 Public Health Nutr. 422 (June 8, 2005); A.A. Leiserowitz, “American Risk Perceptions: Is Climate Change Dangerous?,” 25 Risk Analysis 1433 (November 6, 2005); G. Gaskell, N. Allum, N. Kronberger, “GM Foods and the Misperception of Risk,” 24 Risk Analysis 185 (February, 2004); N.M. Wells & G.W. Evans, “Home Injuries of People Over Age 65: Risk Perceptions of the Elderly and of Those Who Design For Them,” 16 Journal of Environmental Psychology 247 (September, 1996); D. Ropeik, “The Consequences of Fear,” EMBO Reports (October 2004) at S56 cited at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1299209/ and D. Ropeik, “The Perception Gap: An Explanation for Why People Maintain Irrational Fears,” Scientific American(Blog)(February 3, 2011).

[32] Tab C, at 9.  Perhaps the best example of this occurs when a factory spews pollution onto the property of its neighbors.  Instead of incurring the costs of pollution controls, the factory simply externalizes them on those next door.  Society appropriately regulates these externalities.

[33] Id.

[34] I believe that a CPSC rule on table saws will actually provide a more rational allocation of risks for this product than currently exists.  As former Yale Law School Dean, Guido Calebresi, has long argued, instead of imposing the costs of such injuries on society at large, manufacturers (and consumers) who benefit directly from products should internalize those otherwise externalized costs by including those costs in the prices of products.  Thus, the price of goods would reflect more accurately the societal costs of producing them.  See G. Calabresi, “Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L. J 499 (1961) and G. Calabresi, The Costs of Accidents: A Legal and Economic Analysis (Yale University Press (1970).

[35] George Will, “Taking a Ride With Ronnie,” Newsweek (May 31, 1976) at 76.

[36] The various provisions that require cooperation with the voluntary standards sector are spelled out in section 9 of the Consumer Product Safety Act (15 USC § 2058).

[37] Draft NPR at 44.

[38] UL’s requirement uses a surrogate finger approaching the saw blade at 1 meter per second, permitting no more than a cut depth of 4 mm.  CPSC’s proposal limits the depth of the cut on the surrogate finger to 3.5 mm.  Id. at 101.

[39] Id at 48.

[40] Id. at 50.  As staff has stated, “… the existing voluntary standard requirements for riving knives or modular blade guards will not prevent or adequately mitigate blade-contact injuries on table saws.”

[41] Id. at 49.  Staff characterizes these blade removals as “necessary and proper” for certain cuts.

[42] Id.

[43] This requirement is found in section 9 of the CPSA. 15 U.S.C. §2058(f)(3)E. 

[44] Tab C, Staff Briefing Package, at 2-3.

[45] Draft NPR, at 7-8.  Although there is no exact dividing line, bench saws tend to be small, lightweight and inexpensive – from $130-$1,499; contractor saws generally have larger motors and heavier table tops and are rarely portable, costing roughly $500-$2,000; and cabinet saws tend to be the heaviest and most powerful table saws, used most often in home woodworking shops, with prices ranging from $1,200-$5,000. 

[46] Id.

[47] Id. at 36-37.

[48] If anything, using a bench saw for an hour is probably more dangerous than using a cabinet saw for an hour.  Cabinet saws are designed to be more durable and their greater weight reduces vibration so that cuts are smoother and more accurate.  Id. at 8.

[49] Tab C, at 44.

[50] Tab C, at 46.  The staff did calculations based on four hypothetical scenarios: (i) every saw has the same annual risk of injury, (ii) risks are equivalent for the different saw types over the saws’ expected product life, (iii) injury risks are proportional to the median saw price, and (iv) injuries are proportional to median saw price.

[51] Draft NPR at 111.

[52] Id.

[53] Id.

[54] I should hope not.  Patent rights have been enshrined in the U.S. Constitution (Article 1, Section 8) since it was written.  Patents give short-time monopoly power to patent holders for important societal reasons.  As Justice Scalia wrote in Verizon v Trinko –

The mere possession of monopoly power and the concomitant charging of monopoly prices is not only not unlawful; it is an important element of the free-market system.  The opportunity to charge monopoly prices – at least for a short period – is what attracts business acumen in the first place; it induces risk taking that produces innovation and economic growth.
Verizon v. Trinko, 540 US 398 (2004).

[55] 15 USC § 2058(f)(1)(C) and (D).

[56] Staff Briefing Package, at 35-36.  Among the ways for an AIM system to operate are (i) sensing electrical properties of the human body/finger, (ii) sensing thermal properties of the human body/finger, and (iii) visual sensing and tracking of the human body/finger.

[57] Tab C, at 6.

[58] This commitment is more recent, evidently reflecting the fact that SawStop now manufactures table saws in competition with other manufacturers and faces a different marketplace from when they first offered to license AIM technology.

[59] Although I look forward to comments from the public on this point, I note that the integrity of the staff’s cost/benefit analysis depends on SawStop’s living up to its word.  Should the company renege on its pledges, it would undermine the staff’s analysis, likely rendering it no longer supportable.  I hate to think what a court might do to CPSC’s rule if SawStop reneged, given that the company put its commitment in writing in the original petition and has reiterated it numerous times since then. 

[60] As with any new standard, the table saw rule will have its greatest cost impact in the short run before the economies of scale and the development of more efficient manufacturing processes kick in.  Staff notes that prices are likely to be mitigated in the long run, but wisely chose not to speculate on when that might occur.  See Draft NPR, at 91.

[61] Draft NPR at 177.

[62] Id.

[63] The increased cost of table saws could result in fewer consumers purchasing this product.  Staff estimates that net sales might drop significantly in the short run, from 90,000 on up. Draft NPR, at 133.  Staff also suggests that the weight of table saws might increase to some extent, but not to a degree that I see much concern.  I am aware of the industry argument that, given the increased cost of table saws, many users would be likely to try to use their circular saws as modified table saws.  Their argument, however, assumes that the price of a bench saw with AIM technology is going to be in the $1,300-$1,400 range.  That is extremely unlikely given SawStop’s imminent introduction of bench saws with AIM technology in the $300 price range.

[64] Draft NPR, at 194.

[65] Letter from J Harkrider and R. Dagen, Counsel for Stanley Black & Decker to CPSC Commissioners (March 29, 2017).  According to counsel, “SawStop must disclose that it has patents that are, or may be, essential to the [table saw] standard, and must give a binding agreement to charge Fair, Reasonable and Non-Discriminatory (“FRAND”) rates and therefore forgo seeking injunctions against licensees willing to pay a FRAND rate determined by a district court.”

[66] See, J. Ordover & A. Shampine, “Implementing the FRAND Commitment,” http://www.americanbar.org/content/dam/aba/publishing/antitrust_source/oct14_ordover_10_21f.authcheckdam.pdf J. Lewis, “What is ‘FRAND’ All About?  The Licensing of Patents Essential to An Accepted Standard,” https://www.cardozo.yu.edu/what-%E2%80%9Cfrand%E2%80%9D-all-about-licensing-patents-essential-accepted-standard. Wikipedia has a simple, clear definition. See https://en.wikipedia.org/wiki/Reasonable_and_non-discriminatory_licensing

[67] The letter also alleged that Dr. Gass “has intentionally and purposefully misrepresented the scope of its patents that read upon the proposed standard. “  Neither of counsels’ assertions are correct.  The law carries no requirement for SawStop to sign a FRAND agreement in CPSC’s proceeding, and there is no evidence in the record that Dr. Gass has ever misrepresented a thing. 

[68] The fact that the company has vigorously defended its patents in court does not mean that other approaches to AIM technology are not available or cannot be developed.  To the contrary, as I have discussed, CPSC staff has noted that AIM technology using thermal, visual, electromagnetic, or ultrasound approaches are possible. See, supra note 56 and accompanying text.   I should add that UL’s attempt to persuade industry members to adopt AIM technology did not fail because SawStop refused to sign a FRAND agreement.  The reason it failed was because the industry opposes AIM technology.

[69] See, supra, note 66 and accompanying text.

[70] Unlike with estimating possible rates associated with table saws for a breakeven analysis, I very much doubt that staff could do a breakeven analysis to approximate the terms a FRAND agreement might produce.  Unfortunately, FRAND law is unsettled both as to which formulas to apply for such agreements and which amounts are appropriate under these formulas.