CPSIA - What Does Canada Know (That We Don't)?

Our friends to the North have been following developments under the CPSIA, and in a race to the bottom, decided to implement their own version of our new safety law restrictions. However, to their credit, Canadian regulators chose to carefully and sensibly limit their bans and have thereby introduced focus and rationality to their scheme. What an innovation!

Canada has apparently decided to ban the notorious six phthalates. As I have written on several occasions, it appears that the science behind the fears of phthalates is unclear at best. That being said, I have never opposed a ban on phthalates for the most vulnerable class of consumers, namely children under three. This ban was implemented by the EU years ago, with years of forewarning (REAL forewarning, Mr. Moore, not requiring telepathy) with a limited focus on products for the "Under 3's" and was accommodated by industry with barely a peep of pushback. Canada seems to have learned from the EU, and bans the chemicals only in soft vinyl toys and childcare articles. This narrowing of the ban makes it consistent with the EU regulations and makes it much easier for industry to accommodate. It is also arguably better focused on what may be the only safety issue with phthalates. It was Canada's intention to correlate its rules with the EU.

Needless to say, the Canadian regulators did not have to contend with a different legislative scheme in California or the City of Chicago or whatever. They set a central policy for everyone.

On the subject of lead, the new Canadian rules take the U.S. rules and add sense to them. The new lead limits are for products suitable for children under three (not based on intent but on objectivity) and also on products intended or likely to be placed in the mouth. Frankly, this is hard to object to - as it is any responsible company's obligation to take reasonable measures to protect its customers, particularly the most vulnerable ones. This precautionary measure would not be problematic in my view, as it is entirely limited to the class most likely to be adversely affected by the (possible) hazard. Our rules do not permit this kind of focus or devotion of resources. The age limits of the CPSIA applies to everything but the kitchen sink. This is a major source of strife under the U.S. law.

It is also notable that our rules are made even more unpalatable by the extraordinarily coercive liability rules imposed by the (ridiculous) CPSIA. I cannot over-emphasize the dread I personally experience when I have to deal with ANY quality issue nowadays. The specter of liability is constantly on my mind - but notably it does nothing to affect my judgment on what's the right resolution of a quality issue. It just raises my blood pressure. If you are a consumer advocate, you may be rubbing your hands in glee, but I would caution you against too much exuberance. If you make it miserable enough for manufacturers to ply their trade, they'll go elsewhere. Is that really what you want from us? Our companies are world leaders in hands-on learning. Does the world have an oversupply of good educational companies, particularly focusing on early education? Not in my opinion. Btw, I hear about other people's dilemmas under the CPSIA from time to time. The liability clouds are changing behavior in the community of companies serving children's markets. Either the companies are shifting away from their traditional markets to avoid the hassle and tight noose of this law, or else they are simply ignoring it.

Do you get it? The response of many companies is to IGNORE the new law. Question: Isn't ignoring the law how we got in this mess in the first place? Great solution, guys! Please call me when you are ready to talk sense.

One last note: Nancy Nord issued a statement yesterday about the bicycles stay of enforcement. The bikes stay is another in a series of illegal (un-Constitutional) legislative actions by the CPSC, forced on it by an inflexible and off-target law. Ms. Nord's statement was picked up on Twitter; I cannot find it on the newly re-jumbled CPSC website. Ms. Nord continues to bravely speak sense to Congress and the public in her statements on CPSIA decisions, and I hope she will continue this important work. Please note her comments on the enforcement stay on bikes:

"From the standpoint of the consumer, enforcement of the law as written by the Congress would limit the availability and increase the costs of a product that is almost synonymous with childhood. But most importantly, because lead adds to the strength of the metal used and has other useful attributes, enforcement of the law could adversely impact the safety of children’s bicycles, leading to more deaths and injuries. A stay of enforcement is our only option to protect children. While the stay of enforcement will allow children’s bicycles to continue to be sold over the next two years, the stay also contemplates that manufacturers develop plans to reengineer their products to remove the lead from the metal used in children’s bicycles. In other words, we are requiring that manufacturers use scarce resources in challenging economic times to attempt to address a risk that children just do not encounter. It is very troubling that the commission has had to resort to using stays of enforcement to avoid the unexpected, and, in some cases, the dangerous consequences that would result from enforcement of the CPSIA. Such a result does not increase consumer confidence and creates uncertainty in the marketplace. There are those who would add that, at some point, regular use of stays opens the agency up to legal challenge for not enforcing the law."

I hope someone besides me is listening to Ms. Nord (hello, Congress?). Her arguments deserve thoughtful consideration, notwithstanding that Mr. Bush appointed her. This is serious business. The laws that the CPSC is required to enforce matter a great deal to consumers and to our economy. Forcing the CPSC to enforce a terrible law with terrible incentives for industry has a predictable outcome - and not a good one.

Perhaps our neighbors in Canada can help us sort out a direction forward.