CPSIA - Op-Ed in Roll Call 6-1-09

Roll Call, a publication covering Congress and legislative issues, published an Op-Ed I wrote today:

Congress Should Return Toy Safety Regulation to the CPSC

By Rick Woldenberg
Special to Roll Call
June 1, 2009, 12:45 p.m.

I am a toymaker and I do not make “toxic toys.” I never thought I would have to make that statement, but unfortunately, all children’s products companies remain under assault by consumer groups capitalizing on a notorious series of toy recalls in 2007 and 2008 to propagate misconceptions about safety.

Having pushed Congress to pass the Consumer Product Safety Improvement Act last year, these same groups now refuse to acknowledge the flaws in this law. Despite an outcry over the overly broad reach of the new law, a misguided labeling policy and the devastating retroactive application of the new standards, Congress has refused to budge. Politics has taken over children’s product safety.

Toys and other children’s products have an enviable record of safety. While a few large recalls tarnished the reputation of the toy industry in 2007 and 2008, very few products and companies were involved in these recalls. For perspective, consider that Amazon.com alone offers more than 600,000 different toys and games today, an assortment likely to grow substantially as Christmas approaches. In 2007 and 2008, a total of 66 toys, equal to about 0.01 percent of Amazon’s current lineup, were recalled for lead in the paint, according to the Consumer Product Safety Commission. There were even fewer lead-in-paint recalls of all other children’s products (54) in the same period. Exactly one injury was reported from these incidents over 24 months. Notably, no recalls for reported injuries from phthalates were imposed in this period. Given the virtual absence of injuries at this high point of product recalls, it is incredible that the prior law is not regarded as “precautionary.”

While other product defects resulted in recalls of toys and other children’s products in 2007 and 2008, the fact remains that toys and other children’s products are not “toxic” and 99.99-plus percent of the many millions of children’s products (apparel, footwear, toys, books, bicycles, pens, electronics, bedding and so on) will never be recalled for any reason. Smearing our industry with allegations of toxicity spreads unjustified fear, talks down our businesses and our future, and victimizes legitimate, responsible businesses. Consumers also suffer as good products and good companies exit the market under withering attack.

The problem began when Congress usurped the CPSC’s role in making safety assessments. Despite regularly lauding the performance of the professional staff at the CPSC, Congress limited the agency’s discretion by imposing inflexible “one-size-fits-all” standards to a broad class of products cutting across many markets. As implementation of the new law became mired in stays and disputes over “unintended consequences,” the consumer advocates and their supporters on Capitol Hill faced an ironic dilemma — their long-anticipated new safety law was turning into a system of noncompliance. Yet instead of acknowledging the problems with the law and opening it up for reasonable fixes, the CPSIA backers stood their ground and implicitly defended a potentially unsafe legal environment where real bad guys may go free. Their legacy of landmark legislation has degenerated into a fracas in which neither safety nor the integrity of the market for children’s products is a primary concern.

The environmental and consumer groups promote the concept that American safety laws need to operate on a “better safe than sorry” basis. If 99.99 percent of all children’s products are safe (not subject to recall) in an active period like 2007-2008, how is a change to a different form of “precautionary” law going to make children safer? If the track record of the agency is to recall products in anticipation of injury, haven’t we already benefited from more than enough precaution? Even the distracting contention that implementation problems have been caused by the acting CPSC chairman is not supported by the record. Until the May 13 split vote on tracking labels, the two commissioners (Democrat Thomas Moore and Republican Nancy Nord) voted together on every previous CPSIA ballot (23 in all).

The issue of children’s safety is trivialized by the assumption that only Congress has the integrity or character to protect children. It is also an insult to companies like ours whose mission is to help educate children. It is unthinkable that we would allow children to be harmed using our products — and we never previously needed a coercive safety law to embrace that philosophy. We are no different than the thousands of other law-abiding companies who tirelessly serve children’s markets in so many important ways. Unfortunately, if the law remains in its present form, many of our safe elementary math, science and reading products will no longer be available to help children learn and make a better life. That’s a high price to pay for “better safe than sorry.”

It’s time for the politics of safety to take a backseat to effective safety administration. The fundamental flaw of the CPSIA must be corrected, namely that the responsibility for determining whether products are safe or unsafe should be restored to the experts at the CPSC. Wasteful provisions like tracking labels and retroactive application of the new standards should be dropped, and penalties should be refocused on truly bad acts, not on technical violations that discourage commerce. Congress should take this action promptly to restore order to the marketplace and empower the new commissioners to do their job of protecting children. With an ability to focus its considerable resources according to risk of injury, the CPSC can again establish rationality and predictability as a hallmark of American safety regulation.

Rick Woldenberg is chairman of Learning Resources Inc. and the Alliance for Children’s Product Safety.