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What happens when you put the toddlers in charge of the toy shop?

Last week, Fisher-Price recalled all of its Rock ’n Plays, a collapsible sleeper in which the baby’s head rests at an upward incline. Fisher-Price’s decision followed an investigation that linked the Rock ’n Play to at least thirty-two infant deaths since 2011. Its incline violates modern safe-sleep rules, which call for babies to lie flat on their backs on a firm, wide surface. The product inherently has a design flaw but was a cult product for many sleep-deprived new parents.

The story of how and why the Rock ’n Play was marketed as a “safe sleeper” is a straightforward tale of industry muscle reinforced by regulatory weakness:  The manufacturer originally categorised the Rock ’n Play as a bassinet (a small bed for very young babies).  When the US Consumer Product Safety Commission began revising its mandatory standards for cribs and bassinets, Fisher-Price’s parent company was granted an exemption for sleep products with an incline of more than ten degrees. The thing that made the product unsafe was the same thing that excused it from safety standards. 

Why am I telling you this? Because it is yet another example of the importance of effective regulation and oversight that can stand up to big industry’s commercial interests. Consumers – in that case parents – cannot be expected to know the risks. They trust regulators to be cautious and create high safety standards, when it comes to food, toys, machines, medications, or airplanes… 

Consumers trust regulators to be cautious and create high safety standards, when it comes to food, toys, machines, medications, or airplanes… 

A lot has been written about the two recent tragedies and loss of life involving Boeing 737 MAX aircraft. Clearly there are serious questions to be asked about what happened and why, and the exact failure modes and factors that were part of each event. But I would like to step back for a moment and look at the wider picture that has been illuminated by these disasters. 

The design flaws that are implicated in the tragedies according to the preliminary reports were apparently known about at least before the second accident. According to an investigation by the Seattle Times, safety engineers at the FAA (the regulator overseeing the design and certification of the aircraft) had serious concerns. It is alleged that they were pressured into reducing their involvement in oversight, and delegating as much as possible back to Boeing.

This push to have certification and oversight streamlined and as much as possible conducted by the company being regulated, meant that the FAA were unaware of major system changes that occurred through the aircraft’s development that were built into the final product. It also meant that in order to speed up the approval process and get the plane out for sale quicker, sign off was apparently conducted by FAA managers rather than the technical experts, and in some cases even passed back once again to Boeing employees.

Regulatory capture is not confined to the United States

Regulatory capture

Some people describe this compromise of independent safety regulation and oversight as a ‘revolving door’ problem, where staff move so frequently from the regulated corporation to the government regulator and vice versa that there is little separating them. In fact, the model now in use is worse than this, with certification simply delegated to personnel within the manufacturers being regulated – they don’t even need to join the regulator anymore.

In a follow up article to its investigation the Seattle Times once again illustrates the problem – in 2013, a senior FAA official, in charge of certifying new aircraft at the FAA, moved to the US aerospace industry lobbying association, the AIA. Later that year he addressed Congress on their behalf: “We urge the FAA to allow maximum use of delegation. It would be detrimental to our competitiveness if foreign manufacturers are able to move improved products into the marketplace more quickly.”

This situation, where the safety regulator has effectively become part of the companies it is supposed to regulate, is called “Regulatory Capture”. It is not confined to the United States.

That is going to take fundamental rethink and reform, and we owe it to the travelling public to start right away

In Europe...

In Europe, where our aviation safety regulator is EASA and where we have our own large aircraft manufacturer Airbus, we face a similarly challenging situation. With the best of intentions, inadequate human resources and central public funding, a reliance on the industry for resources and technical expertise, and driven by a competitive race to the bottom (see that quote above!) between cost obsessed companies and between regional regulators, Europe has its own serious weaknesses. From our own experience at ECA we see the actual processes that develop our regulations being shaped by representatives of the companies being regulated – and the drive is always one way – less cost, less or softer regulation, more determination and enforcement of rules to be followed within the company, and less and less by the (often understaffed) regulator. All this being conducted under the popular banner of ‘performance-based regulation’.

Nobody likes sounding the alarm on safety, certainly nobody likes those in the industry who do. But sound the alarm we must, for until we grasp the failed regulatory model that Boeing’s 737 MAX has shown us, and shake it on both sides of the Atlantic to see what else lurks within, we will not be able to fix it. 

That is going to take fundamental rethink and reform, and we owe it to the travelling public to start right away. If this sad episode does not, what is going to trigger that reform? And what credible process will Europe undertake to bring it about?

Let's hope there's no tantrum when we ask for the return of the keys to the toy shop..…


by Capt. Jon Horne, ECA President