CPSIA - Keynote Speech of Nancy Nord at ICPHSO 2-26-09

At last week's ICPHSO conference (see http://www.icphso.org/), Chairman Nancy Nord of the CPSC gave the keynote address about the CPSIA on Thursday February 26. Her remarks give a good snapshot of the new reality facing the regulators - and you.

While noting the importance of not challenging the motives of parties on either side of this debate, Ms. Nord pointed to one-sided media coverage from important outlets like the New York Times. As you may know, in the days preceding her address, the New York Times published a blistering attack on the CPSC and Ms. Nord in an editorial. [See http://www.nytimes.com/2009/02/18/opinion/18wed3.html?_r=1&scp=1&sq=fabulous%20toy&st=cse.] Ms. Nord correctly pointed out that the New York Times had neglected to publish virtually any news on the CPSIA for numerous weeks prior to the editorial and had never addressed the issues confronting small businesses under the law. [Ed. Note: All the News That's Fit to Print, huh?]

Ms. Nord defended the ongoing activities of the CPSC while attempting to process the massive burden of the CPSIA, including implementation of other sweeping new legislation on pool safety and gas cans, various investigations and important enforcement activities. [Ed. Note: In other words, while Rome burned, the CPSC wasn't just fiddling - like some people . . . .] This is an important point, as Chairman Nord observes, the burdens on this agency skyrocketed without the receipt of ONE ADDITIONAL PENNY of new funding. Their tasks were overwhelming and they received no help whatsoever.

In her remarks, Nord reminded the audience that the problems of the CPSIA are being ignored by Congress which is leading to ridicule overseas. [See http://www.guardian.co.uk/books/booksblog/2009/feb/20/kalder-childrens-books-lead-panic.] [Ed. Note: It is happening here, too. See http://learningresourcesinc.blogspot.com/2009/03/cpsia-chicago-tribune-is-making-fun-of.html.]

Ms. Nord moved on to address the problems in the new safety law. She bristled at the removal of discretion from the CPSC in administering safety issues, and noted importantly that concepts of risk and exposure have been removed from our legal system FOR THE FIRST TIME. The retroactivity provisions of the law are threatening the future of many companies, BUT the Commission no longer has the legal authority to change the rules. The deadlines and rulemaking demands are going to be impossible to meet as well. [Ed. Note: And the rulemaking deluge is also impossible to keep up with - for businesses subject to these new rules. See http://learningresourcesinc.blogspot.com/2009/02/cpsia-information-overload.html.]

After reciting a list of the agency's under-appreciated implementation achievements since the CPSIA descended upon it, Ms. Nord noted chillingly that the CPSC cannot change the law and WILL enforce it as written. But she wants a law that both protects children and allows businesses to grow and prosper.

Step One, she says, is for Congress and CPSC to have an open and honest dialogue. Congress has stated publicly that the CPSC isn't doing its job to implement this law. She noted that, amazingly, a Congressional staffer had actually (incorrectly) asserted to her that small businesses won't be held liable under the CPSIA if they don't know they are breaching it. [Ed. Note: I have had this EXACT interaction TWICE with the same key staffer, who asserted this point INCORRECTLY with some energy. I addressed this serious misreading of the law in a letter dated January 12. See http://learningresourcesinc.blogspot.com/2009/01/cpsia-confusion-and-chaos.html.]

Nord calls for a more constructive dialogue with Congress which addresses the urgent need to change the law in fundamental ways. In particular, Ms. Nord calls for revocation of the retroactivity provision and a sharp revision of the exclusions/exemption process. In the 35-year existence of the CPSC, there has been a clear, consistent and unambiguous understanding that new standards apply PROSPECTIVELY. She also notes that in the wide net of the CPSIA, far too many products are being pulled into the law that NO ONE would contend are unsafe or in any way dangerous. She wants the authority to exclude such items from the law. She mentioned obvious cases like ATVs and motorbikes, which even CPSIA Congressional conferees have begged to be excluded. [Ed. Note: Sorry, guys, read your law next time before you sign it.]

In her vision for the future, she believes the agency should work toward better recall effectiveness and a stronger overseas presence. A China office for the CPSC is going through the approval process, which will help a great deal. All the agency needs now is some $$$. Data mining will help spot problems earlier, and a new lab will modernize their investigation processing and technical capabilities.

In closing, Chairman Nord noted the sad case of the school library in Nebraska that is cordoning off books produced before 1985 (http://www.ncnewspress.com/articles/2009/02/20/news/doc499ed094480fd323904423.txt) and called for action on the law with a sense of urgency.

The significance of Chairman Nord's speech is clear. We are not all dreaming - the problems in this law are very real and they are severe. Ms. Nord could not in the course of a keynote speech tick off every serious problem under the law - trust me, there's more -but she went to some trouble to clarify the agency's dilemma under the CPSIA. The CPSC is stuck writing rules to implement a distasteful law that does not work and will not lead to better "safety" (translated: fewer incidents of injury and lower risk of injury). Congress is deaf to her pleas - and our pleas - preferring, like the New York Times, to use her as a whipping boy. Apparently, Shakespeare had it right - don't kill the messenger! As Congress whiles away the hours waiting for a new Chairman to tell them what Ms. Nord already told them and as we have put into print time and again, the economy falters (Dow under 6700 and Citibank is currently trading under a buck) and the vitally important businesses supporting the children's product industry are going down . . . the . . . drain.

Guys, this is a call to action. We need to rouse our Congressmen, let them feel your pain. It's really now or never. If your business is your life's work, or your income pays your mortgage, or you love your kid's dirt bike or desperately need educational products to homeschool your children, there's no time to lose. Get out there and be heard!

Rick