CPSIA - Contesting the Higher Ground (Part II)

It's hard to get my head around the emerging fact that certain consumer groups will stop at nothing to distort the record for their own benefit. If indeed these groups are looking out for everyone's "best interests", I am confounded to understand why distortion of the facts, or worse, is necessary to make their points. I would have thought that right is right and wrong is wrong, and therefore, street fighting tactics would not be necessary. And it also turns out that they have little interest in freedom of speech, since they seem rather selective in whose comments they choose to publish. A little message control going on? Who do they think they are, the New York Times?

Consider this do-gooder: Apparently, consumer "advocates" at the Center for Justice and Democracy have been leaving comments around the blogosphere pointing to their "debunking" of the "myth" that the CPSC is unable to grant exclusions to the lead standards. See http://www.thepoptort.com/2009/03/true-lies-debunking-a-major-cpsia-myth.html. The brave author of this "debunking" signed his name as "Joe Consumer". Apparently, Joe may be brave enough to use his real name (right, Joe?) but not to post opposing views. I left a comment in response to the "debunking" but it must not have met Joe's demanding standards for publication. So I am reproducing Joe's post and my comment - you decide who is right.

Rick

March 27, 2009

True Lies: Debunking A Major CPSIA Myth

One of our favorite things to do here at ThePopTort is debunk abject hooey, so today we’ve chosen to address one of the most insidious CPSIA myths out there—the notion that the Consumer Products Safety Commission’s (CPSC) “hands are tied” when it comes to issuing exemptions to small enterprises, like craft shops and libraries, that find it hard to comply with this landmark child-safety law. The theory is, Congress must change or scrap the legislation because it has rendered the CPSC powerless.

We know this is a myth, but incredibly, we’ve discovered that the CPSC thinks so too! That’s right—the CPSC is so absolutely certain of its authority to give the small business community (that it claims to be so concerned about) “exclusions” to the CPSIA, that it has already clearly asserted it—that is, to avoid complying with another law, at small business’ expense.

The Regulatory Flexibility Act requires agencies like the CPSC to analyze the impact of their actions on small businesses, and when it’s bad, to come up with alternatives. Here, the agency decided the CPSIA’s impact on small businesses wasn't bad at all. Why? Because of its authority to issue exemptions to small businesses from the CPSIA! (See Part G of this document.)

Now when it comes to the actual issuing of exemptions, it is true that CPSC must first adopt testing protocols to determine that a product is safe. It already could have done that. In fact, it had many months to do that. But the agency still hasn’t done it.

Why? Well, we can only just shake our head at this one. Nancy Nord, current CPSC Chair and Bush holdover, is complaining Congress didn’t give them enough money.

Remember 2007, the “Year of the Recall” when the CPSC was under fire from all directions for its complete and utter failure to ensure the safety of consumer products? Well, in an act that “stunned” consumer advocates as well as some Senators, Nancy Nord “asked lawmakers in two letters not to approve the bulk of legislation that would increase the agency’s authority, double its budget and sharply increase its dwindling staff.” That’s right, she said NO to congressional attempts to raise the CPSC budget to $141 million, increase staffing levels by about 20 percent, and “give the commission broad new powers to police the marketplace.”

So listen up, small enterprise folks. The CPSC had three different opportunities to come to your aide and it turned its back on you every time. This agency is not powerless to give you exemptions and it says so itself. It just chooses not to. In the final analysis, there is no need for Congress to change this law. What we need is a change in the CPSC leadership.

Posted by Joe Consumer at 11:08 AM

My Comment in Reply (Unpublished):

That's a great debunking! I only wish you had read the law and cited language from it to back up your "debunking". Laws are not emotion or feelings - they are rules, lines in the sand. The words used in the rules define them. In this case, it is absolutely clear, crystal clear, that the "myth" you are "debunking" is neither a myth nor untrue.

The ONLY exceptions to the lead standards are found in Section 101(b)(1) of the CPSIA. In this famous section, exceptions are permitted only based on "the best available, objective, peer-reviewed scientific evidence" that NO lead can be absorbed from the item or material in question. The CPSC has opined in writing and orally on several occasions that no such material exists on Earth. Perhaps Congress was intending this exemption to apply to materials from Outer Space? If not, where's the flexibility?

Notably, in Section 101(d), the CPSIA defines "technological feasibility", a first for CPSC legislation. The definition has no concept of economics in it. This is the rule that will dictate whether we must move to a 100 ppm standard for lead (retroactive, of course!) in a couple years. Apparently, the economics of our businesses is no concern when considering feasibility. I hope Congress will be able to provide us with a script to explain this to our banks at the appropriate time. This rule is not subject to exceptions, and may induce a new death spiral for yet more companies.

If the foregoing inflexibility was not enough for Congress, no matter what the pain to thousands of companies affecting millions of products and countless consumers, families, schools and teachers, the CPSIA provides yet another suffocating stricture in Section 101(e). In this provision, the CPSIA limits what little possible relief is possible, stating that "[t]he pendency of a rulemaking proceeding . . . shall not delay the effect of any provision or limit [under Section 101.] nor shall it stay general enforcement" of such provisions. In other words, no matter how ridiculous, pointless or damaging the provisions of the law, they must be enforced until the stringent standards of the law are met to overturn them. And we now know that some of these standards cannot be set aside for the materials we tend to use here on Earth.

You're right - the CPSC's hands aren't tied! I think it's more like being bound and gagged.