CPSIA - Tracking Labels Guidance, Where is it?

Last Friday, Nancy Nord said (in a Tweet) that tracking labels guidance was coming: "nancynord update:#CPSIA We're trying to reach agreement on tracking label guidance; hope to issue soon. Watch for it, then take a look and speak up." This guidance has yet to be issued. Today is a momentus day - we now have only ONE MONTH to go before the tracking labels requirement becomes effective. Have you seen any guidance yet? I have not.

It's fascinating how the CPSC has handled the tracking labels issue. In this case, it's all the CPSC - Congress made the mess but the CPSC is clearly in charge of implementation and guidance. The CPSIA provides that tracking labels became law (prospectively, thank heavens) without further action by Congress or the CSPC on August 14th of this year. Gib Mullan made this quite clear at ICPHSO in February. The agency received well over 100 letters in April and had a tracking labels hearing on May 12 (see my testimony here and here). Since then, putting aside rejection of the NAM stay petition on May 14), zippo. Now with less than a month to go, the guidance is STILL forthcoming. Rumorville has it that it will be "final" as issued, no public comments will be solicited and it will receive the backing of the Commission (after which we will be entitled to read it). It is not clear what the guidance will be, but no doubt it will be constrained by the wording of the statute which limits the flexibility of the agency. Thus, your heart should not fly at the possibility of sudden and unexpected salvation. If it happens, great, but why expect it given everything else that has transpired?

Among the aggravations of this water torture process is that we in industry have asked reasonable questions about this provision, lots of them, and have received NO reply. We raised serious concerns and explained clearly that there are economic incentives here that are dangerous and will have real bite in our businesses and market. Silence. So what happened to dialogue? Yes, the CPSC asked for and received comment letters and yes, they had an open forum for businesses to speak out (one did, ours, plus some trade associations) - but what about give-and-take and discussion? Given the seriousness of this issue, why hasn't there been further conversations, brainstorming, exchanging of proposed rules and further comment periods? This was not such a bizarre idea a few months ago when we went through a similar cataclysm over advertising rules. Not only were letters exchanged but there were also off-line discussions, submissions and most importantly, dialogue AFTER the rules were proposed. The CPSC, as you may recall, changed its rules after they were issued in response to industry submissions (including mocked-up catalog pages). Indeed, a few months ago, the agency actually was still trying to listen. The well of dialogue has been lately poisoned by reactivity and evil politics since then, making it seemingly impossible to reach the CPSC on these issues.

And does the CPSC have any idea of how the delay is harming businesses? What do they think we are doing right now? We are guessing about tracking label requirements for production runs scheduled in less than a month and trying to deal with panicky retailers who won't take any "risk" on this issue. [For instance, we have one customer who reserves the "right" to return goods without further authorization NOW for lack of tracking labels.] Everyone is trying to figure out how to survive August 14. This is no small undertaking for many businesses. Today I spoke to a friend who has 60,000 skus at his companies. Hmmm, a few all-nighters ahead for him, I guess. This is no joke. I do not understand how the CPSC can be so heartless and insensitive on this issue. We should have not to beg for a sensible delay on this provision - yet the Commission is currently split 1-1 on the NAM stay petition and despite resubmission of the NAM petition for Ms. Tenenbaum's vote, no further vote has been docketed. No hurry, it seems. I fear that issuance of this "final" guidance may provide the necessary political cover to reject the NAM stay petition, which would be a shocking failure on the part of our government.

I will admit I am growing quite tired of this terrible game. We provide a lot of jobs and add a lot of value through our products in American schools. For this, we seem to be public enemy number one and are also treated like dirt. I fail to grasp what we have done so wrong to deserve this kind of discourtesy. It would be great if the agency would elevate its consideration of the impact of its actions, and inactions, and give law-abiding companies a reasonable opportunity to actually participate in an open process (with real listening on the part of the CPSC) and a reasonable opportunity to transition to new rules that are CLEARLY not an emergency. The game play of waiting for guidance until the 11th hour (or later) is no way to run a country. Well, maybe it's a good way to run a Third World country . . . .