CPSIA - NAM Tracking Labels Stay Petition Refiled

I am delighted to report that the National Association of Manufacturers refiled its petition to stay the Section 103 tracking labels provision for 12 months on July 1 for urgent reconsideration by the CPSC Commission. In its letter, NAM called the lack of CPSC implementing guidance on tracking labels "an unconscionable dilemma for industry". The tracking labels fiasco creates enormous burdens for industry and is in many ways pointless and unjustifiable. See my earlier posts (here, here, here and here) on this topic and my testimony before the CPSC for background (here and here). To allow this provision to stand, without having given ANY guidance or answered ANY of the legitimate and appropriate questions of industry, would be shamefully irresponsible of the CPSC Commission. [Unfortunately, Congress seems immune to shame when it comes to the CPSIA and will not act to delay this provision. As its leaders will tell you, Congress has already acted with great "common sense".] The notion that it is okay to induce widespread economic convulsions as part of some kind of jolly "learning process" must be REJECTED.

I call on the CPSC Commission to not only grant this well-stated petition for a stay but to exceed it by granting a stay of more than 12 months. The tracking labels stay should be for a period to extend for one year beyond the promulgation of FINAL rules on tracking labels. It will take time to draft and fine tune common sense rules (which implies a serious effort to dialogue with industry and other stakeholders). Furthermore, it is abundantly clear that industry needs a full year to implement known rules. Thus, 12 months just isn't enough, even in a perfect world. In addition, it is important to recall that there has NEVER been a claim that the new tracking labels requirement solves a pending human health or safety "crisis". Tracking labels are certainly no emergency. Don't forget that the CPSC always had the regulatory power to impose tracking labels and has, in fact, done so in the past where appropriate. The CPSC has declined the opportunity to implement tracking labels in an across-the-board fashion for more than 30 years. Is it possible they chose not to act for good reason?

It hardly needs reiterating that the CPSC in its "enforcement discretion" can issue a stay for longer than a year. The Commission has done so for bikes and ATVs. Notably, in both cases, the CPSC has not only offered stays to permit the manufacture of these goods in violation of the CPSIA but has practically encouraged industry to resume making the now-illegal goods. In the case of pens, the Commission more or less told industry that it knew pen manufacturers would continue to make pens that violate the law - with no end in sight. Commissioner Moore promised not to be the "pen police" - in other words, that "stay" is tantamount to a permanent "don't ask/don't tell" policy.

Clearly, the concept of a "stay" is flexible. It therefore cannot be denied that the Commission, if it saw fit to do so, could grant a longer (and more sensibly-designed) stay to permit not only a thorough dialogue with all interested parties, but to issue rules with enough implementation time for law-abiding companies to transition smoothly to the new rules. That sounds right and sensible - here's hoping the Commission can muster the courage to do the right thing this time.