Wednesday, February 11, 2009

CPSIA - Phthalates Legal LUNACY

Okay, let's recap here: on Thursday, February 5, a District Court in the Southern District of New York decides in the NRDC case against the CPSC that the phthalates ban in the CPSIA is, in fact, retroactive in effect as of February 10, three business days later. This overrides the legal opinion of the General Counsel of the CPSC from two months prior. On Friday, February 6, the CPSC indicates in a press release that it will abide by the court ruling (it won't appeal the ruling) and therefore apply the phthalate retroactively as of February 10 to all inventory in the United States. Two days later, bingo, phthalates in children's products (for children up to 12 years old) are banned. Much clucking from self-satisfied consumer groups for their great work protecting consumers . . . .

Not that it matters, but is this fair? Essentially, ON TWO BUSINESS DAYS' NOTICE, the U.S. government imposed a retroactive ban on a broad class of merchandise brought into this country in compliance with law and which had not previously been the subject of product recalls or reported injuries. In fact, the scientific staff of the CPSC had previously rejected claims that phthalates were unsafe. What's the precedence for this kind of thing?

A clear comparison can be made to the Prohibition. The Prohibition was made effective with the ratification of the 18th Amendment of the Constitution on January 29, 1919. The text of the 18th Amendment is as follows:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Notably, the 18th Amendment, the ONLY Amendment to the U.S. Constitution to be repealed, gave a one-year grace period to sell off inventory. This grace period was designed to cushion the blow to the liquor industry. It is worth considering that the campaign for the ban on alcohol was brewing for NEARLY 100 YEARS in the United States. Even the process of ratifying the 18th Amendment took 13 months from passage by Congress to its certification of ratification by the States. Implementation took place another 12 months later. All this for a consumable food product that was the subject of a prominent, national movement linked with obvious moral problems. The Volstead Act which created the enforcement mechanism for the Federal government, took effect immediately on October 28, 1919 (after Congress overrode the President's veto), in advance of the effectiveness of the 18th Amendment. See http://www.answers.com/topic/national-prohibition-act-1919.

In the current mania, apparently our Congress has decided that the phthalate "crisis" is SO urgent that they have endorsed a scheme far tougher and much less sensitive to industry than even the Congress that approved the ill-fated 18th Amendment and infamous Volstead Act. With the outcome in the NRDC case, the advance warning provided to industry on phthalates can now be measured in HOURS. It is worth noting that this ban is based on asserted "links" to various health issues. There is considerable scientific debate over these "links" which many people think are not proven. Whether or not the "links" are real, it is abundantly clear that there is nowhere near universal agreement that this is a national health crisis. It goes without saying that the application of the ban on all products intended for children up to 12 years of age far outstrips the target zone of babies and toddlers who are known to mouth toys and other objects. Is it appropriate to impose such massive losses on industry in the face of such a fuzzy threat that is not universally accepted?

In a self-justifying environment of legislators who congratulate themselves for "protecting children" without comparing cost (certain) and benefit (quite uncertain and tentative), it is not just business interests that are being disenfranchised. Let's not forget that all those businesses have customers (you) who need or value their products and services. The notion that this law only adversely affects a limited group of Americans or businesses is, in my opinion, loopy. This affects us all, and will deprive us of diversity of products and vitality in our local economies. Is it time to tell your government that you have had enough - and will remember them and their actions when you next step into the voting booth?

Tell Congress how you feel - before they bankrupt your business.

Rick

12 comments:

Connie said...

Read This: http://www.sba.gov/advo/laws/regflex.html

And This:
http://www.sba.gov/advo/laws/sbrefa.html

These article on the Regulatory Flexibility Act of 1980 and Small Business Regulatory Enforcement Fairness Act of 1996 are fascinating. One starts with this:
"The Congress finds and declares that when adopting regulations to protect the health, safety and economic welfare of the Nation, Federal agencies should seek to achieve statutory goals as effectively and efficiently as possible without imposing unnecessary burdens on the public;" They continue with common sense approaches to regulations that affect small businesses.

Read the entire things and see if you don't agree that Congress could not have possibly considered the effects on small business with regards to CPSIA. This latest judgement regarding the retroactivity of the phthalate ban with virtually no notice totally goes against the grain of these laws designed to consider small businesses.

So Congress pushes the CPSC to make decisions and issue guidance which is then overturned by a state court??? How can anyone expect a business to make any sort of real business decisions based on CPSC policy statements knowing they can be changed on a moment's notice? I am reading article after article about the devastating effects of this law and yet Congress continues it's resistance to listening to us at all. What will it take? I never would have imagined that things could have gotten this bad. I find myself unable to make business decisions when I am surrounded by both examples of businesses totally ignoring the law and businesses closing their doors trying toc omply with the law. Is that truly my choice?

Anonymous said...

snopes.com thinks this is all just a rumor, let them know what you think :

http://www.snopes.com/inboxer/pending/cpsia.asp

Eric said...

Responsible business owners cannot make decisions w/ these erratic & confusing rules. We have no idea how to handle the possible interference of state courts or Atty Gen offices. That gives us 50 more unknowns. It's totally unreasonable to expect any company to monitor rules that change daily and unexpectedly - especially when it comes to safety. We WANT to do the right thing. But WHAT is the right thing? Every day we come to work to find that what we decided yesterday is now all wrong.

Valerie Jacobsen said...

Snopes.com

Are there any lawyers out there that could speak to them on behalf of some of us--or whatever--and tell Snopes that their misinformation is harming our business?

I try to speak to people, make calls, and so on, but many people go to directly snopes and then decide not to listen further.

Valerie Jacobsen said...

Insanity.

I'm a bookseller. Take a look at
http://www.cpsc.gov/pr/moore020309.pdf

"Libraries are extremely concerned about the impact of the lead provision on the children's books on their shelves. I believe that our staff has come up with a supportable 'bright line' to guide libraries as to what books we will deem not to pose a problem and which ones should be sequestered until we get more information from the publishing and ink manufacturing industries.The book publishers have asserted that children's books pose no problems, but we know that the ink used in children's books prior to the 1980's did contain lead."

The CPSC has just TWO commissioners. This is from one of them, Thomas Hill Moore, to Henry Waxman and Bobby Rush, who sponsored the Insanity Bill.

The Happy Tomato said...

I pull my small business violin out of its case here and ask, elbow cocked, how IS it the government was EVER expecting us to comply with something so vast, so confusing, and so unpublicized--STILL?

If large businesses are still in the murk, with lawyers (and erudite, articulate CEOs spending ungodly amounts of time disseminating the ever-morphing situation) available to them, WHAT is the average small or micro-entity supposed to do?

I'm a smart girl, but I can't keep up, and while ignorance of the law is no defense, I find myself unable to answer the people who ask with COMPLETE sincerity:
"Come on, doesn't somebody have to TELL you if they make a law like that (dewy-eyed blink, blink)?"
I would ASSUME that the same government I had to register my name and servicemark with, and pay taxes to (on a federal and state level), and procure insurance for as a "children's clothing manufacturer," would have let me know..I dunno...SOMETHING. To this day, I have never received a single e-mail or paper notice from my government about what I am supposed to DO here--have you?--and everything I know about this law has been what I pursued. I calculate the hours and think it's close to a graduate degree.

Not only does the government not have to tell you about a law which transmogrifies your previous perfectly legal behavior into something possibly illegal, but they don't have to tell you when they keep ON changing it, either.

Unless, as my chilled hackles fear, successful compliance and the continued availablility of safe, independent products was really not the goal here.

But let's be optimistic here (!) and say that lead and pthalate safety for children (that would be the "Safety" and "Improvement" keywords in the CPSIA) was the noble and COMPLETELY ACHIEVABLE goal here.

Even a Kindergarten teacher knows this was not the way to bring about the goal, achieve the new target behavior, execute the lesson plan. You can't start setting new boundaries, with confusing expectations, and expect it to work. And even the most spontaneous, carefree-appearing lesson has a concrete, underlying GOAL. And yes, sometimes, it just doesn't WORK, despite fine underpinnings and intentions--and good teachers, mid-stream are able to adapt their lesson plans to their students NEEDS AND ABILITIES in order to achieve the GOAL.

Compliance of those who want to comply just doesn't seem to be the goal for Congress here, does it? And safety?--clearly THAT is not the goal.
I'd like to see the lesson plan on this one. The LESSON and the PLAN.

Valerie Jacobsen said...

Dear Mr. Orwell,

Children’s books were invented after *1984*.

Before 1985, there was no Dick. There was no Jane. There was no McGuffy. No boy named Tom painted a fence, ‘Anne’ didn’t end with an ‘e’, and no one had yet thought of putting ”pictures or conversation” on paper for children.

In fact, children didn’t learn to read in the old, old days before our Leaders saved us from our long, dark night. Before 1985, there was only a dry wasteland of technical books, encyclopedias, service manuals, and other books for adults.

How thankful we are that times have changed so that children can learn to read and have their own books! We owe a great debt to the Great Change–and to Henry Waxman and Bobby Rush who accomplished through CPSIA!

Sincerely,
Valerie Jacobsen
Bookseller

Lora said...

http://cpsc.gov/cpscpub/prerel/prhtml09/09115.html

this stay is on testing and certifications (and with the plea that Attorney Generals don't enforce the law anyway)but our books 1984 and before - still no good? or are we okay (provided the Attorney General isn't ambitious) be cause we don't "have to test" until a review comes of this law (or repeal) Feb 2010?

Can somebody help me out here?

i just noticed, this was no comment - only questions, and it seems that's all we have! LOL

Anonymous said...

I heard a retail store packed all of their 'non-compliant" and/or questionable goods and personally delivered to their local US Senator. If everyone did this, perhaps they will finally listen. (More likely they would keep the goods, overturn the law and open their own stores)

Rick et al, please keep up the good work. There are many of us who keep spreading the word! We may not be as active as you or the Hand Made Alliance and others...but we are doing what we can. The reaction from mainstream America is disbelief! But we continue to educate.

Thank you.

Rick Woldenberg, Chairman - Learning Resources Inc. said...

I believe ALL books are still subject to the lead standards, but the CPSC has indicated that they do not intend to prosecute anyone for selling a violative book printed on or after 1985 (unless the violation was done "knowingly"). Books printed before 1984 and intended for children 12 years and younger are outside of their promise not to prosecute. What does that mean in practical effect? Time will tell. Were I a library or eBay, I would be incensed. Why? Please find me ONE example of a child poisoned by a book EVER. I want to see name, address, photograph and a validated doctor's report. Such an incident never happened since Mr. Gutenberg invented his printing press. This application of the law was never anticipated or intended. The consumer groups who are behind (wrote) this law refuse to admit their error, probably because opening the bill up for changes might mean it will not survive in a recognizable form. Thus, they take the absurd and unsupportable position that books might harm a child. This is terrible and must be resisted by everyone in the trade.

Valerie Jacobsen said...

Rick,

See http://www.ajph.org/cgi/reprint/64/3/238.pdf (American Journal of Public Health, March 1974)
or just take my word for it.

Vintage children's books *DO* tend to contain lead over 600 ppm.

It's not that these beautiful books *might be* illegal by a long stretch of the imagination. Many of them *are* illegal, especially if they contain color pictures.

Based on what I've heard through the grapevine, recent XRF testing seems to be confirming what the American Journal of Public Health said in 1974.

It appears to me that testing vintage books is NOT likely to put a bookseller who can afford it in the clear. Rather, it appears to me that testing would put a bookseller smack dab in the middle of "knowing violation."

(I have about 10,000 pre-1985 children's books, not all cataloged. About 10% of them could possibly, legitimately be sold as adult collector's items. About 9000 of them now have a legal market value of $0. Where's my bailout?)

I was an RN (BSN, MS) before I was a bookseller. I checked the National Library of Medicine, the National Institutes of Health, and the Morbidity and Mortality Weekly Report from the CDC. There is no record of any child harmed by a BOOK. EVER.

For that matter, if you except the *measured* < 1 in 75 million risk of poisoning from children's metal jewelry, there's no published record of any child lead-poisoned by a regular toy.

There were a total of TWO reported instances of jewelry-related poisoing, one in 2004 and one in 2006. I searched every term I could possibly think of--and have a lot of experience working these databases--and I could not find a SINGLE instance of lead poisoning from a "regular" toy or a BOOK.

WOULD ANY SANE CULTURE destroy its economy and obliterate the freedom to buy and sell to "prevent" events that have NEVER HAPPENED?

A Consumer Protection Swimming Improvement Act (CPSIA) makes a lot more sense in terms of the epidemiology. It wouldn't be fun, it wouldn't be appropriate, it wouldn't be constitutional (IMHO), but at least it would SAVE A FEW LIVES and prevent some DISABILITIES.

Our country's version of CPSIA will *NEVER* be able to make that claim.

Sorry about the caps, but I'm seriously steamed over this. I've spent 15 years building a business that is largely based on the premise that children's books published in the 40's, 50's and 60's DO HAVE ONGOING LITERARY VALUE.

Rick, LEAD IS NOT BAD. LEAD IS NOT EVIL. Lead in an inappropriate quantity and in an inappropriate place (a charm hanging around a child's neck) *can* cause harm *very rarely*, but minute quantities of lead in appropriate places are GOOD and NOT DANGEROUS.

If I put the works of certain famous children's illustrators side by side, 1950's original to 2009 reprint, you will see the difference. The originals are brilliant; they pop off the page and are *gorgeous*. The modern reprints are pale imitations.

If it's a minute quantity of lead that causes this, I say, "Hooray for lead!"

Enjoying those beautiful illustrations is really no different from enjoying the microscopic world or realizing the benefits of an electronic learning machine thanks to those tiny drops of lead.

Children still READ THESE BOOKS--and I've seen them make a positive impact on a child's education time and time again.

Rick, due to the nature of my business as a used bookseller, I see the full gamut of the misuse of children's books. I have seen some strange misused, but outside of a board book used for babies, I have NEVER, EVER seen a children's book that I thought a child had been chewing up.

Tens of thousands of books have gone through here, and I've seen some strange kinds of damage, but partial ingestion I've never seen. It doesn't happen except to baby board books. (I've seen that PLENTY.)

My impression, based on the parts per million that we're looking at, is that in order to become lead poisoned from a book a child would first have to die from the effects of an obstruction from eating THAT MUCH PAPER. (Sorry, but like I said, I was a nurse.)

Incidentally after weeks of calling about this and writing about this and speaking about this, I met my Very First Person who thinks that CPSIA makes sense and believes it's appropriate to censor the canon of children's literature this way.

This was yesterday. I called Senator Herb Kohl's office and was told, "Well, yes, it could be called censorship, but there's nothing wrong with that. It's based on the year of publication, not the content of the book."

I told her that the effect is the same, but she was not convinced that I had a legitimate point. She promised to pass it on, all the same though.

Heather said...

"People BELIEVE what we say, yes they do!
Whatever we say they'll believe that it's true!

They won't check their own facts; they'll rely upon us --
We'll lull them to sleep and they won't make a fuss..."

http://www.easyfunschool.com/snopes_is_wrong_about_the_cpsia_spoof_seuss_story.html