Sunday, October 11, 2009

CPSIA - Learning Curve Begs for Common Sense (What a Joke)

On Friday, the CPSC Commission docketed a decision on a request for exclusion under Section 101(b) filed by Learning Curve Brands, Inc. Learning Curve (a company owned by RC2) is famous for its Thomas The Tank train sets, which had a little recall problem back in 2007 but we don't need to go there right now . . . . In any event, among other things, they make die-cast vehicles like this and want permission to use brass bushings on the wheels.

In a sane world, no one would need to ask the government a question like this. Thanks to Mr. Waxman, that's not our world anymore. Wacky or not, they must plead their case. As Learning Curve notes (their filing is not apparently public, or at least I cannot find it on the "easy to use" CPSC website): "1) CPSC has already granted an exemption for brass and other lead containing alloys in electronics where the material is necessary for the function of the product; 2) the brass is required to ensure that the products pass the necessary use and abuse tests by preventing the wheels from separating from the axles; 3) children are not likely to be exposed to the lead in the product; 4) other household products, including plumbing fixtures are allowed to contain lead at levels that exceed the CPSIA limits; and 5) a study conducted by RAM Engineering, a division of Intertek, determined that lead exposure to a child would be minimal, less than the amounts allowed in food."

It's sort of cute that LC attempts to reason with the CPSC. Darling, really. I applaud them for stating sensible reasons to exclude brass bushings. Of course, their common sense falls on deaf ears. The staff responded this way: "In this case, given the assessment provided by the requestors, the staff likely would have concluded that the estimated exposure to lead from children's contact with the die-cast toys would have little impact on the blood lead level. Accordingly, based on the staffs assessment, the staff would have recommended that the Commission not consider the product to be a hazardous substance to be regulated under the FHSA. However, the CPSIA establishes the standard by which the staff evaluates the materials submitted with a request for exclusions. . . . Since contact with the toy could result in absorption of lead, however small the absorbed amount, the staff concludes that the statutory standard has not been met."

I feel like humming the tune that they used to play on Bozo's Circus when you missed the last bucket on the Grand Prize Game. Wah-wah-wah, too bad! Too bad, indeed.

Why on Earth do I care about this? The unfairness of the application of this law to Learning Curve affects all of us. We don't happen to make brass bushings, but then again, we do use connectors of various kinds, like staples, screws, nuts and bolts. Many people use these items in their products innocently enough. Connectors are not regulated EXCEPT for their inclusion in children's products. I would note that I have NEVER seen a single article directly or referenced that suggested that connectors present a HEALTH DANGER to anyone. Likewise, any deaths or injuries attributable to poisoning from brass in any form. Don't stick connectors in your eye or eat them, and I think you are going to be fine.

Some connectors have brass content in them (horrors!). Does this matter? Only under the awful CPSIA. Why do I care? Some random and terrible results are possible when connectors become the subject of CPSIA disputes. Let's not forget that the CPSIA criminalizes any "intentional" violation of the law. Thus, it is now IMPOSSIBLE to work out any issue between supplier and customer, no matter how trivial. The law incentivizes customers to turn in their suppliers. [When I consider this dynamic under the CPSIA, I always think of historical precedents where governments turned one part of the society against another, with terrible results. I am sure you are aware of the parallel. Why isn't anyone bothered by this besides me?]

The law also incentivizes the CPSC to not forgive these "transgressions". Why won't the CPSC just overlook these issues, using "enforcement discretion"? The reason: apparently, the CPSC has no taste for "defiance" these days. They defend their practices (off-the-record) by noting that they are only imposing a "no-sale" requirement on such inventory. [Remember the Potato Clock?] This "innocuous" position is usually accompanied by a demand that suppliers notify their dealers of the "no sale" requirement. [In the case of the Potato Clock, I believe the company felt it might incur liability if it didn't tell dealers to stop sale. More of the same.] While this is short of a full-scale recall, it is tantamount to financial Armageddon for many small companies, and has the potential to kill brands.

Am I just a worrywart? Well, this is same CPSC that just allowed or demanded a recall of 40 inflatable baseball bats for a phthalate violation. Good thing they stopped short of a house-to-house search, that showed GOOD JUDGMENT. You can hold 40 inflatable toy bats in one hand (if uninflated). So nothing is apparently beneath their scrutiny. In this case, they can shrug off the consequences of their actions. After all, they are "just doing their job". How satisfying for them!

In any event, the Learning Curve exclusion request is a loser. Get ready for more rationalizing from some Commissioners and hand-wringing from others. We should have a pool for when the new Democratic leadership of the CPSC will stand up publicly and call for needed change in this law. Your guess is as good as mine.

1 comment:

Esther said...

The insanity continues doesn't it! Yes the CPSC is doing it's job, but Congress is not. The only options left to us is a class-action, which I'm not entirely sure is possible, and/or voting people out of office (an equally daunting task!).

I know this may not be on your radar, but drawstrings are causing an equal conundrum to brass connectors. Originally the drawstring ban (1996) was a "voluntary" ban on drawstrings in children's upper outerwear, primarily in hooded sweatshirts and jackets. While the wording has not really changed in the regulation, the voluntary ban is now mandatory and has expanded to include drawstrings and ties on any piece of clothing with a neck or waist. Of course the drawstring has some relevance as a sensible rule because there has been at least one death related to clothing with a drawstring and multiple deaths/injuries to window blind cords.

But here is where the confusion comes in because of the liability climate of CPSIA. Designers are asking me if it is permissible to add drawstrings or ties to skirt hems (not expressly forbidden). What about bib ties or baby bonnets with ties? All are potential sources of strangulation when taken to the extreme safety of the plastic bubble environment. One has to study the escalating drawstring recalls to infer that further rules will be forthcoming. One also becomes confused at what form these rules might take. With the fear of lawsuits, recalls, and penalties, children's clothing designers are trying to avoid these possibilities and are fearful.

Opponents of safety laws and regulations claim there are other ways to design clothing. And yet, the substitutes offer little consolation of their own safety. And so the wheels of confusion continue.