CPSIA - Shootout at the ATV Exemption Corral

The drama currently playing out at the CPSC over ATVs could be the undoing of the CPSIA. I know that sounds like wishful thinking (it certainly is my wish), but let me explain.

As you may be aware, the ATV industry has been (justifiably) up in arms for getting swept up in the CPSIA nonsense. As they rightly point out, use of their products is incredibly unlikely to result in any lead poisoning issue. Thanks to an absurdly overreaching definition of Children’s Products, ATVs and dirt bikes were swept up in the CPSIA restrictions, and losses exceeding a billion dollars have reportedly been racked up by this innocent industry already. [The list of innocent victims goes well beyond the ATV industry, of course, but that’s a subject for another day.] Since many if not most members of Congress thought they were voting on a toy bill, the law of unintended consequences continues to dominate the CPSIA. [See below for evidence of this lasting confusion.]

The ATV industry is dominated by very large businesses who can afford to go through the exceedingly expensive and taxing process of pleading for an exemption from the law. That door is not open for us mere mortals, but they can afford to hire extremely expensive lawyers and scientific consultants to draft an exemption request. The statute requires that the decision to exempt items or materials that exceed the lead standards be based on “the best-available, objective, peer-reviewed, scientific evidence” that (essentially) no lead can be absorbed into the body as a result of interaction with the item or product (Section 101(b)(1) of the CPSIA). Despite the ATV industry providing scientific evidence that you would have to use an ATV for between 14 and 47 days to equal the lead intake of one Coffee Nip (my weakness, sorry!), the staff recommended rejection of the application (as the law requires). See the April 1 Staff reply and my blogpost on the same subject. [Ed. Note: I would note that 16 Nips come in a box, and that the sale and consumption of this candy is not restricted by law in any way. If one were to consume an entire box in a sitting, something which is probably not unprecedented and which might be a task well worth undertaking, the FDA’s lead limits for this candy would have you consume more lead than you might take in if you were to ride an ATV for almost three years non-stop. Come on, ATV Industry, what are you trying to get away with?!]

The consequence to ATV and dirt bike lovers of a rejection of their CPSIA lead ban exemption application is a total shutdown of their sport. Not only are new bikes now apparently illegal, but so are spare parts. Media coverage of this controversy reveals that dirt bike riders race on the weekends and repair during the week. No spare parts, no racing. And to compound the misery and the pathos, child-sized ATVs and dirt bikes were a creation of the CPSC under the relentless pressure of our overseers, the consumer groups. Yes, in a delicious irony, those same arbiters of safety and corporate morality are responsible for the creation of the kid-sized ATV market, having demonstrated convincingly that children riding adult-sized ATVs are at risk of serious injury. Hmmm. I sense a dilemma. . . . As the Human Factors assessment of the ATV Exemption request states, “[a] bigger safety concern than lead exposure is that the elimination of youth ATV sales will most likely increase the number of adult ATVs purchased to be used by younger children; therefore increasing their risk of injury and death.” See above.

So the ATV industry is apparently toast – or is it? Turns out that ATVs and dirt bikes are rather popular in many parts of this country. One person noted in an article I read along the way that dirt bike racing is their kid’s “baseball”. Oh well, time to find another sport? ATV and dirt bike riders have not given up so easily and have mounted an impressive political pressure campaign that is apparently causing some feet in Washington to feel the flame of negative public opinion. On April 9, in a remarkable effort to satisfy his electorate, Senator Pryor submitted a letter signed by 28 frightened Senators who apparently need to satisfy the ATV industry (or find another job?). In this incredibly ambiguous letter, Pryor et. al. begs the CPSC to let them off the hook: “It is our view that the Consumer Product Safety Commission is empowered by the CPSIA to exercise its authority and enforcement discretion in a manner that ensures enforcement of the Act in a comprehensive manner while providing appropriate and common-sense relief to businesses and institutions.” Frankly, I don’t remember that provision. . . .

The Senators go on to drop an even more tantalizing morsel: “We further believe that you should aid industry and institutions with compliance on a PROSPECTIVE BASIS, and immediately promulgate information and guidance to help with compliance with the dictates of the Act.” [Emphasis added.] No one knows what this means. Some people initially thought this was the Senators’ hint that they wanted the CPSC to blow off the retroactivity of the lead and phthalates provisions, something that is craved by the ATV’rs (and everyone else).

A closer examination makes that unlikely. Consider, for instance, the “Dear Colleague” letter circulated by Senator Pryor to his fellow Senators. [The blank letter attached to the Dear Colleague letter is identical to the final signed letter.] Senator Pryor’s solicitation letter speaks volumes: “Much of the confusion and frustration regarding the CPSIA can be resolved by the CPSC. Within the CPSIA, Congress gave the CPSC the flexibility and authority to interpret the law in a common sense way by allowing the CPSC to exempt products from the lead ban that they determine do not pose a safety risk to children. [Ed. Note – Remember this assertion.] This approach preserves Congressional intent to keep children’s toys safe while allowing the CPSC to implement the law in a practical manner.” [Emphasis added.] In other words, Mr. Pryor is still laboring under the illusion (delusion?) that he voted for a toy safety law. No wonder he is puzzled by the angst in the ATV industry. [Maybe next time he should read the law before he votes for it.]

Okay, here’s a recap: ATV industry applies for exemption for products that pose no conceivable risk from lead. Since the law was carefully written to remove any concept of risk assessment, the CPSC professional staff recommends that the application be denied. Senators, under pressure from the ATV industry, send an ambiguous pleading letter to the CPSC to save them by utilizing a mysterious, as-yet-identified CPSIA section that grants the agency the power to do as it pleases. The vote which was due by rule on April 8 HAS NOT OCCURRED YET. So what’s the hang-up?

On April 3, Nancy Nord released her vote and statement early. In this letter, she indicates she will vote against the exclusion request as dictated by the law she has apparently read (see, Senators, how useful reading the law is?!) but also states that she will unilaterally impose an enforcement stay for a year and expresses the hope that during the stay, “Congress will consider how the law needs to be fine-tuned to address this serious child safety dilemma [referring to the likely switch of child riders to adult-sized ATVs.].” She goes on: "[The] lack of flexibility [to grant exemptions under Section 101(b)] was brought to the attention of Congressional staff working on the legislation during the conference process and it was confirmed this is what was intended." What?! I thought Senator Pryor said she could do whatever she needed to under the CPSIA to interpret the law in a common sense way. Oh yeah, I forgot, Nancy Nord was appointed by a Republican so she can’t read – and Senator Pryor can!

Or can he? Apparently, Commissioner Moore, a Democrat so he’s a good reader, is even more strident on the lack of CPSC authority to override the lead restrictions. You see, apparently Congress meant it to be this way. In his letter of March 3, Commissioner Moore leaves no doubt that he is 100% behind Ms. Nord in his reading of the law: “As presently written, I find it IMPOSSIBLE not to conclude that Congress intended [Section 101(b)] to be a VERY NARROWLY CONSTRUED EXCEPTION that does not allow for ANY absorption of lead into a child’s body.” [Emphasis added, just for fun.] Uh-oh, somebody’s not reading the script, Mr. Moore! Hmmm, BOTH Commissioners claim to have read the CPSIA and BOTH conclude there is no way out but to read Section 101(b) narrowly as written. Senator Pryor and his panicked friends think (hope) otherwise (but cite no specific CPSIA provision for us to read). For those of you scoring at home, please note: as to whether any products might earn an exemption under Section 101(b), CPSC staff has opined as follows: "Indeed, the Commission staff is not yet aware of any substance as to which the required showing can be made." Ah, a gaping hole that anyone can wriggle through!

Incomprehensibly, Mr. Moore lashed out at Ms. Nord for her apparent statutorily-granted exercise of common sense in a release to media (but not made public): “It takes a vote of both Commissioners to stay enforcement of a congressionally-mandated ban. . . . It is premature for the press, or anyone else, to take the unprecedented release by one Commissioner of their vote and statement [as] final agency action.” Oooh, cat fight! Let’s see, they both agree on the reading of the law but are fighting anyhow. A common sense pause by the Republican Chairman is greeted with upbraiding by the Democrat Commissioner. We are told, monotonously, by “leaders” like the Senator Dick Durbin, Representative Henry Waxman or the Consumer Federation of America and their merry band of consumer “protectors” that the solution is a new Chairman, so . . . so . . . all this will be straightened out? But the Commissioners already agree (their last 23 decisions under the CPSIA have been 2-0) so what will change? For now, the Commission vote on the ATV exemption request has been delayed with no due date announced.

[Ed. Note: Please see my blogpost on State Attorney General enforcement of the CPSIA. The law doesn’t require SAGs to care one whit what the CPSC thinks is right in the ATV exemption case. They have the independent right to enforce the law as they deem appropriate without coordinating or even informing the CPSC. In other words, under this law there are 51 CPSCs and by rule, the decision of one of them, the one actually named Consumer Product Safety Commission, is not binding on the other 50. This is not a theoretical problem, as the blogpost explains. In many ways, the drama over the ATV’rs is a tempest in a teacup. The final court of adjudication is the SAGs. All we have to do is get complete agreement among the 50 of them, changing every time there’s an election of course. . . . No problemo.]

So now what? Stalemate as far as I can tell. Possibly checkmate (be still, my heart). If Moore and Nord have a change of heart and vote to accept the exemption request, the world explodes. Why? Well, the ATV’rs are not the only victims of this idiotic law prohibiting the use of products which give off less lead in a month’s use than a piece of unregulated candy. Industries like apparel, footwear, crafters, toys, books, pens, libraries, etc. will take to the streets, and won’t go home until they have new representatives in Washington. I will be out there with them, too. A vote to let ATV’rs off the hook will be an incredible injustice to the rest of us.

If they DON’T let the ATV’rs off the hook, as the ridiculous law requires, then the ATV’rs have ALREADY announced their intention to punish these legislators. Notably, Missouri, Oklahoma and Nevada have all passed legislation in their State Houses demanding a stay of the CPSIA. The 28 Senators that signed Mr. Pryor’s mystery letter are clearly feeling the heat. The ATV’rs will burn down Washington. There’s no way out if they are rebuffed.

Should be an interesting week in Washington, don’t you think?

Rick