CPSIA - More "Rhinestone Cowboy" Action

How much of a set-up was last week's hearing? In case it isn't obvious that this one-witness, check-the-box hearing had a pre-ordained outcome, let's look at one issue as an illustration (my favorite, rhinestones):

Chairman Bobby Rush of the Subcommittee hosting the hearing kicked things off by heralding the CPSC's rhinestones decision as a sign of Ms. Tenenbaum's good administration: "When you took over the helm, Madame Chair, you showed courage, good sense and a preference for rulemaking over eleventh hour stays. One of the first agenda items you scheduled was whether to exclude crystals and glass beads in children's jewelry from the lead content restriction in Section 101(a) of the CPSIA. You applied the facts as you found them to the CPSIA's lead limits and to real world facts and foreseeable possibilities. For example, you talked and wrote about how children handle and play with this jewelry by mouthing, ingesting, and swallowing the beads, and how any amount of lead constituted too much lead in these beads."

Let's not forget these are the words of the Democratic Subcommittee Chairman, not Ms. Tenenbaum. Her words, at the time, were rather different. In Ms. Tenenbaum's statement on the rhinestones decision, she set out the following logic to justify her voting decision:

a. Exemptions under the law are only permitted if it can be scientifically determined that NO lead will pass from the rhinestones into the body from foreseeable use and abuse of the product.

b. Rhinestones violate the CPSIA lead limits, and therefore need an exemption to be sold legally.

c. Industry data shows that some leaching of lead from ingested rhinestones will occur. She acknowledges blood lead level changes may not measurable.

d. Swallowing or mouthing rhinestones is a "normal" and "foreseeable" use and abuse of jewelry. She reinforced this with her assertion that jewelry is one of the top five items (inappropriately) ingested by children.

e. The law does not require that the lead leached from rhinestones be deemed "harmful".

f. Notwithstanding that CPSC staff "recognized that most crystal and glass beads do not appear to pose a serious health risk to children", the fact that some lead will pass into the body makes it impossible to grant an exemption.

g. Risk assessment is no longer permitted by the CPSC in making exemption determinations, including topics like the bioavailability and accessibility of the lead in the crystals.

So Mr. Rush recharacterized the rhinestones decision as one using common sense safety judgments, and Ms. Tenenbaum's statement was the opposite, namely that a decision to reject the exemption was compelled by law, not safety risk. Other than Mr. Rush's revisionist history, what's my gripe?

Well, I have two problems with this. First, Ms. Tenenbaum herself rose to the occasion of rewriting history when she took the opportunity to insert risk assessment into her decision retroactively. When Rep. George Radanovich asked her if the Commission has the "flexibility to exempt safe products that don't meet the [lead limit] exemption standard", she first replied that "interpretation" of her comments muddied the waters by implying that rhinestones "pose no hazard at all to children". She then said her statement was "poorly worded".

Noting that leaching from one bead would not meet the old FHSA "substantial illness or injury" standard, Ms. Tenenbaum then argued that the CPSC "could not determine" if swallowing "50 beads" might in fact cause substantial illness or injury. In other words, she reversed field and defended the rhinestones decision on basis of RISK ASSESSMENT (which never occurred), rather than the bright line lead limit rule set by Congress. Yes, rhinestones are apparently dangerous now, according to Ms. Tenenbaum, although she explicitly ruled out risk assessment in the original decision/statement. This fits the message control implicit in Mr. Rush's glowing introduction and matches his faulty characterization of the original decision. Unfortunately, it's fiction.

Second, Ms. Tenenbaum passed on stating the obvious to Congress, namely that many safe products are being sent to the gallows by an overly broad and inflexible law. When cornered by Rep. Radanovich about whether she needed "that flexibility so [she] can exempt safe products", she said it was "premature for [her] to answer that question at this time because these beads went all the way up to 23,000 ppm." In so answering, Ms. Tenenbaum threw good and moral businesses to the dogs, all to avoid criticizing the "good statute" (CPSIA). After all, she noted that Congress set the lead limits after due deliberation at 300 ppm (the "safe level for lead"), the implication being that the law DEFINES what's safe and relieves her of any responsibility to make that judgment.

If this confuses you, don't feel too badly. It makes no sense. Incredibly, the head of the CPSC refused to take a position on whether she needed the flexibility to grant exemptions for safe products. You would think that's an easy question to answer, wouldn't you? She claimed it was "premature" because "Congress struggled with this very issue". I am afraid Ms. Tenenbaum is setting the tone for her next four years. While businesses are welcome to "dialogue" with her, because she wants an "open" CPSC, she apparently has no intention to exercise judgment. That responsibility has been given to Congress and from now on, her definition of "safe" is dependent solely on test reports.

Something to think about the next time you want to "dialogue" with the CPSC. Lalala, I can't hear you. . . .