CPSIA - Marketing Fear, A Fine Old Tradition

The folks behind the CPSIA won their prize by scaring the willies out of the American public by blowing up a few large scale toys recalls into a full-scale public health crisis. The new law created an opportunity for Congressional leaders to appear to be active in opposing a terrible threat to the populace. The entire scheme depended on making everyone fearful and to doubt the protections already in place. Some examples:

a. Labeling toys "toxic". This slander depended on the simple observation that lead-in-paint (which contains soluble lead) is capable of harming children. That much is not in doubt. Of course, the most significant source of lead in children's bloodstream is also well-known to be house paint, as well as environmental sources (air, water, dirt). The number of injuries or even suspected injuries from LIP on toys is insignificant compared to other injuries from lead in house paint or from environmental sources, and even less significant when compared to other kinds of childhood risks of injury (such as swimming pool accidents). If toys are "toxic", so are many other things we encounter every day, including swimming pools (FAR more toxic).

Have labeled toys "toxic" with scant pushback from the Toy Industry (yes, my industry), these stalwarts of consumer protection kept going, extending the slander to all things children. It was also a perfect time to lay blame on China as though the failures of various private businesses in China constituted an attack on our way of life by a foreign government. A law which probably should have been restricted to toys was extended to ALL products intended for children (with a strongly implied focus on China). This scheme opened the floodgates of "unintended" problems.

The assertion that the use of lead could not be justified in children's products was never challenged - the fear factor was too intimidating. The more the slander of "toxic toys" was repeated, the greater the fear engendered and the more the debate shifted from safety to an emotional response to panicky fear.

b. Following San Francisco's example on phthalates by disregarding CPSC research on phthalates. The CPSC has completed detailed studies of phthalates that raised sonsiderable doubt about the risks involved in phthalates. Congress chose to ignore the CPSC studies in lieu of the California anti-phthalates model. After all, the House is controlled by a Congresswoman from San Francisco (Nancy Pelosi) and the House Energy and Commerce Committee is controlled by a Congressman from Beverly Hills (Henry Waxman), so no surprise there. The choice to limit the restriction to young children likely to be exposed to chemicals even slightly in doubt was also rejected, despite strong human factors evidence to the contrary. Fear again was the mechanism to build the bipartisan consensus in an election year. Rep. Cliff Stearns used strong language about the mistake of outlawing these chemicals at the April 1 Rally.

It would be interesting to know how many Members of Congress can explain why phthalates are "bad" or what the difference is between the six phthalates in question (or in the case of California, seven)? Do any of these people know what the alternatives are, and whether they are better or worse? There is no need for a mastery of the facts if the object of the law is to assuage fear and make "heroes" out of Congress. Consequences, schmonsequences.

c. Disparaging the prior law and characterizing the new "landmark" law as "precautionary". Precautionary sounds good, doesn't it? Who wouldn't want to be protected prophylactically by a caring and nurturing government? Of course, this image depends on the apparently easily accepted idea that the prior safety law was ineffective in opposing these terrible threats. As I noted in my Roll Call Op-Ed, the prior law generated recalls of 120 children's products for LIP in 2007-8 for only ONE reported injury. Arguably, this constituted well under 0.01% of all children's products available in the U.S. market in that 24-month time period. Without meaning to overstate the case, isn't this rather precautionary in and of itself? One injury in the most notoriously active of all recall periods? Please also consider the shameful letter by Jan Schakowsky twisting the facts on safety and the effectiveness of the prior law to justify the new law and its many defects. The assertions of deficiencies do not survive inquiry. [Ms. Schakowsky did not reply to Ms. Fasanella's reply to my knowledge.]

Does the use of fear as a way to motivate change in law and legal process remind you of anything? How about Senator Joseph McCarthy and his list of Communists in the State Department? Nothing could have been more fearful than Communism in the Fifties. Joe McCarthy was building his career toward becoming your President, using fear based on fabrication. It was a low point in American history. Are we living it again?

I recently read the book "Blindness" by Jose Saramago, a truly horrifying story of a country beset by a sudden blindness disease (an unusual blindness where the victims see bright white light, not blackness, seemingly retaining the sensation of being able to see without being able to make out the world they live in). As the entire country quickly slips almost universally into this terrible state and chaos and mayhem results, the author mines the nature of humanity and human society. Mr. Saramago, a survivor of dictatorship in modern Portugal, seems to say that the fabric of society rips terribly when we go "blind". At the end of the novel, sight returns to the nation, just as Portugal returned to democracy from dictatorship. Why did the people in the novel go blind? One character reflects at the end of the book: "I don't know, perhaps one day we'll find out, Do you want me to tell you what I think . . . I don't think we did go blind, I think we are blind, Blind but seeing, Blind people who can see, but do not see."

I hope you won't consider it trite when I assert that a similar argument could be made about the conditions leading up to the passage of the CPSIA.

We can only hope that the blindness will lift soon, as it did in the novel. Congress did not invent product safety and cannot supplant the good efforts and commitment of businesses focused on their customers in the children's market. When eyes open up again and the CPSC has its power to regulate restored, we will all have a fighting chance to resume doing good business safely and appropriately.