Friday, October 16, 2009

CPSIA - My Ruling on Brass Bushings

The Learning Curve request for exemption for brass bushings on their toy cars is still pending at the CPSC. It is supposedly up for a vote this week. As I have noted in two prior blogposts, this decision will set an important precedent for a number of other products. If, as expected, the Commission votes down the LCI request, brass will be essentially banned in all children's products, except for the pretzel logic of the pen decision (previously derided in this space). [The logic in the pen decision has never reappeared in another CPSC decision, and therefore should not be used as precedent for ANY other situation under the CPSIA until it actually reappears as part of CPSC common law. The pen decision was simply a gift to the writing implement industry, such as a convoluted and fantastic legal decision can be a gift.]

Among the anticipated victims of the LCI decision (to recap):
  • Toys
  • Connectors of all kinds
  • Brass zippers, grommets and other apparel and footwear components and accessories
  • Brass instruments (rentals to schools, certainly), musical bells and certain strings used in string instruments
  • Children's jewelry

It is worth noting, amateur scientists in Congress, that brass has germicidal properties which is one reason why brass is used in doorknobs (icky germs!). Might actually be useful in some children's products for this reason . . . .

The presence of brass in daily life is an immutable fact. If the CPSC bans brass in children's products because of the idiotic CPSIA, NOTHING will eliminate the following uses of brass in the daily life of children:

  • House keys (good for sucking)
  • Doorknobs and locks (touching and licking?)
  • Plumbing fixtures and drinking fountains (touching and sucking)
  • Pipes to convey potable water (assuming those pipes aren't made of pure lead)
  • Components in cell phones (definitely good for licking)
  • Clocks, antiques, artwork (touching)
  • Railings (licking)
  • Jewelry (sucking)
  • Guns and ammunition (no comment)
  • Tools (you can poke out an eye with a tool!)
  • Etc. etc. etc.

This does not even address the widespread presence of lead in, among other things, our food system, our potable water and our air. There are federal safety standards for allowable lead content in each category. Children are known to consume food, water and air throughout their daily lives without interruption. The obliviousness of the CPSIA in setting such stiff standards for bio-unavailable lead-in-substrate in children's products in the context of these other lead instances is shameful - and the source of the current issues with brass.

The CPSC Staff has determined that the CPSIA does not allow an exemption for brass bushings. In the understatement of the year, the staff concluded "that the estimated exposure to lead from children's contact with the [LCI] die-cast toys would have little impact on the blood lead level." Staff states clearly that they consider brass bushings safe and that the lead transmission from brass bushings is inconsequential and certainly not rising to the level of a hazardous substance. Unfortunately, the Commission has thus far shown no interest in taking bold stands and rejecting the legitimate legal (but nonsensical) conclusions of the CPSC Staff under the CPSIA. Common sense be damned.

In a perfect world (what a joke), the Commission's decision in this case would hold that although LCI brass bushings are caught up in the limits of the CPSIA, they present NO substantial hazard to children, and therefore using their seldom-used discretion, the Commission grants an exemption for brass bushings in children's products conditionally. The decision would explicitly state that this decision should be taken as precedent for brass in all children's products (to cut down on repetitive exemption requests). The decision would be dependent on TWO CONDITIONS, namely that: (a) the particular use of brass in children's products is not known or held by CPSC Staff to present a substantial hazard to children under the FHSA, and (b) the exemption will be lifted when Congress acts to ban brass from everyday life and takes concrete steps to retrofit America for a brass-free future, replacing all brass doorknobs, artwork, cell phones, keys and locks, plumbing fixtures and water pipes (including, what the heck, lead pipes, too) and so on. For so long as brass remains part of children's daily life in their home and school environments, the CPSC will not act to restrict brass in children's products.

The Commission, using common sense not previously known in the CPSIA era, would note that banning brass bushings would be utterly ineffective to change the net exposure of children to lead in their lives but would wreak terrible losses upon the marketplace. Senseless economic destruction is un-American and lacks a social conscience since the losses will be spread ratably throughout society among suppliers, sellers and consumers of all things brass. Finally, the Commission would note that unless and until its decisions to restrict children's products materially impact safety, the Commission will not keep safe products or components off the market for technical violations of the CPSIA. Brass bushings, in my fantasy, would be granted an exemption to the awful CPSIA.

This idle fantasy can come true if the Commission summons up the courage to act sensibly and to stop being complicit in the shoddy legislative work of Congress. As an independent agency of the U.S. government, NOT a subsidiary of the legislative branch or an organ of the House Energy and Commerce Committee, the CPSC has the authority to make up its own mind and to set rational policy. It's time that the Commission draw a line for one and all to see. Especially Mr. Waxman.

No comments: