Wednesday, August 5, 2009

CPSIA - Chair Tenenbaum Gives a Speech

Inez Tenenbaum, Chairman of the CPSC, gave a speech on August 1 at the recent APEC Regulator Dialogue on Toy Safety in Singapore. The link above includes the transcript of her speech.

While Ms. Tenenbaum states in her speech that "[t]he U.S. experience with safety standards has been that you get a great deal of product safety by relying on voluntary consensus standards coupled with regulatory authority to intervene quickly", she then proceeds to discuss the new mandatory standards handed down by Congress without comment. Here's a good example: "As with the phthalates limits, the lead content limits have a one year stay on enforcement of testing and certification. This stay will expire on February 10, 2010, and CPSC will surely enforce all requirements at that time. " In case you thought this was all some kind of cruel joke . . . . Btw, we received a bill today for $5,973 for testing ONE item to the new standards.

Ms. Tenenbaum seems to think the issue about lead in substrate is a very limited issue: "Regarding lead in products, we have been facing the classic regulator's dilemma in some cases. Lead has been widely used in many metals to ensure the structural integrity of the material. If you remove the lead - which can act as a neurotoxin in the bodies of children - you have to answer the question about the structural safety of the product or the safety of the metal used to replace the lead. " This is verbiage from the exemption decisions on bicycles and ATVs - perhaps Ms. Tenenbaum thinks they are the only ones with a problem. The rest of us are fine, the lead can just be "removed". Magic! In fact, lead in many materials is pretty much impossible to remove and if the standards are enforced without regard to considerations of risk (the law is written that way), then it is essentially a ban of those products. Ms. Tenenbaum has bikes and ATVs on her mind - but what about microscopes for kids?

The speech also suggests that the "fix is in". Take, for example, tracking labels: "In implementing the CPSIA, CPSC has reached out to other regulators, to industry, consumer groups, and other stakeholders. For example, the tracking label provision that goes into effect this month has been the subject of both a national and internationally coordinated call for comments from stakeholders. CPSC held a public meeting to solicit input, and CPSC staff has been instrumental in the planning for an international regulators conference on tracking label policy to be held in Stockholm on September 10th. This event is sponsored by the International Consumer Product Safety Caucus and is open to all product safety regulators." But how well did the CPSC listen to those comments it solicited? Given that the CPSC seems intent on plunging ahead (forget "common sense"), why are we asked to bother giving comments? Congress won't listen either.

Ms. Tenenbaum doesn't beat around the bush - her job is to enforce the law, not write it. This is why her speech is TOTALLY absent of perspective (that's not her role). " My regulatory philosophy embraces open dialogue, information sharing with all stakeholders, and a commitment to finding mutual interests. When a law has been passed by U.S. legislators or a new regulation has been established by CPSC, however, it becomes the law of the land. As CPSC's chief regulator, I will ensure that our requirements are enforced vigorously and fairly. Enforcement is actually one of my three top priorities as Chairman, along with government transparency and consumer education and advocacy." She is essentially telling us that her concept of open dialogue has limits - she'll listen but if what you need is contrary to Congress' express desire, regardless of how ridiculously misguided the law is, you will lose. She does not promise to be an advocate on these issues. If you don't like the law, it seems to me that the message from her is that YOU need to get Congress to change it.

Her speech included NO opinions on what the law should say or what Congress should do. If Congress isn't going to listen (this is well-known, thanks Mr. Waxman) and the CPSC will simply take Congress' orders without any feedback, what alternatives are left for us? I already know what the law says, and if I can't run a profitable business while complying with the law, what choices are left for me? WHY isn't this of greater concern to regulators and Congress? Ms. Tenenbaum is an ex-teacher and ex- school system administrator but seems oblivious to the threat this law poses to our schools. Is our company's role as a supplier of educational materials SO suspect that the only possible solution is to coerce us out of business on the grounds that "we cannot take a chance". I would remind you that our company has recalled 130 pieces in 25 years of business. Many other industries have equally strong arguments against the over-arching requirements of the law.

I wonder if Ms. Tenenbaum "gets it" yet. She says: " Within this new paradigm, my job as head of the CPSC is to ensure that product safety is as high a priority as fostering trade - and there need be no conflict between the two as long as product safety is sufficiently factored into fostering trade. And that's why we're all here, after all. " Fine, noble, public-minded. I, too, am quite concerned about safety, which is why we have the track record of compliance and quality leadership that we do. BUT if the new rules makes it impossible for us to do business, yes, recalls will go down and so will trade. If you put us out of business, there won't ever be another recall of our products. Nor will there be any societal benefits received from our products or the advancement that flows from our innovations. The only thing you can measure, however, is recalls. It might even look like a "gain" if you saw recall rates decline by putting so many companies out of business. What a victory!

Maybe someone in government is listening. I am wondering if they are listening with comprehension, however.

1 comment:

Michael said...

Rick--

Rememeber when we talked about jury nullification?

have you come around to my way of thinking yet?