Tuesday, December 8, 2009

CPSIA - An Open Letter on the Testing Stay

To all of my loyal readers:

You may not realize it, but we face a serious crisis right now. Last week, the CPSC held a hearing that discussed the possible extension of the testing and certification stay. The Commission is under pressure to ramp up implementation of the awful CPSIA and this therefore puts the testing stay in peril. Chairman Tenenbaum has heard the concerns of regulated businesses that some advance warning is needed, so Rumorville in forecasting a quick consideration of the question - possibly as early as next week. Commissioner Nancy Nord commented on the implications of the stay in her blog last week. At least one Commissioner, Bob Adler, is openly hostile to continuation of the stay. This is a big deal to companies regulated by the CPSIA.

What kind of disaster would the termination of the Stay in February mean to you? Let me count the problems:
  • The "15 Month Rule" was never issued when due on November 14th. The "15 Month Rule" was supposed to address testing frequency, sampling regimes, the need for additional testing, component testing rules, etc. [Component testing rules were cited as critical by Nancy Nord when the original stay was issued on January 30, 2009. How time flies . . . .] There is a workshop to be held on Thursday and Friday this week to solicit feedback from stakeholders. More than 200 people will attend and many more will watch and participate online in the web simulcast. Presumably this feedback needs to be fully digested before the Commission acts on the stay.
  • Comments on the "15 Month Rule" issues are due on January 11. For perspective, the original comments on the penalty factors were due in late December 2008, and a second round of comments were due on October 1. The revised penalty factors have not been released, and we are now within days of a full year since the first comment letters were received. With this as precedent, we are clearly MANY months from a completed "15 Month Rule". Arguably, without a fully articulated "15 Month Rule", an active testing requirement will be incomplete and utterly confusing.
  • The CPSC has not issued its phthalate testing standard.
  • The CPSC has not certified ONE phthalates lab yet.
  • The CPSC admits that it has not certified enough labs to handle a full burden of testing for many product classes or safety tests. They have not provided any quantification of this deficit besides acknowledging that for bikes, based on current accredited labs, it would take a full year to complete testing on all bikes on the U.S. market. That's one round of testing only, btw.
  • The CPSC has not certified labs for ASTM F963 testing yet.
  • The CPSC has not defined "children's product", "toy", "play" or "childcare article" yet, making the application of the rules completely opaque.
  • The CPSC has not leveled the playing field, acknowledging that fixed test costs place a disproportionately high burden on small businesses. This competitive disadvantage has no ready solution under current rules.
  • The CPSC has acknowledged that many companies have not acted to fill market gaps like component testing because the rules are not final (or even drafted in this case).
  • The CPSC is on its third enforcement policy on lead and lead-in-paint. With the enforcement-policy-of-the-week, the agency ensures that companies will have devote considerable resources to relearning the rules that they had previously mastered, leading to confusion and exhaustion. Imposing a further layer of incomplete, vague and unarticulated testing policies and plans will only reinforce chaos as the working standard for the children's product industry.
  • The rules that the CPSC has implemented are so ornate, confusingly worded, scattered among multiple documents, letters, and even video testimony, that only the most obsessive observers can claim an accurate understanding of every nuance. This group would not even include me, even though I have given up sleeping in favor of the CPSIA.

The Commission's sense of urgency to get this irritant off their plate is creating rumors that they intend to act as soon as the next business day after the workshop. As outrageous as this might seem, it's really worse - the workshop is not about the stay. The workshop is about component testing, frequency of testing, sampling schemes, when to require additional testing, etc. The CPSC has not asked for comments about the lifting of the stay but at least one Commissioner has reasoned that if it was a "big deal", the CPSC might have heard from more than the Handmade Toy Alliance. [Apparently, both Bob Adler and Jay Howell believe that the CPSC has had not heard from anyone other than the HTA on the stay, which is certainly not true.] This kind of thinking is worrisome in the extreme.

If the stay is lifted on two months notice with all these rules open, undrafted or in process, utter chaos will break out, not only between CPSC regulators and their regulated companies and industries, but also between (a) consumer groups, regulators and regulated companies, (b) State AGs and regulated companies, and (c) regulated companies and their dealers/retailers. By lifting the stay under these uncertain conditions, the Commission is risking complete market chaos. While this would rain down misery across all regulated companies and industries, there is cold comfort in knowing that the Commission would eat its own cooking, suffering a devastating drop in reputation for taking such an economically insensitive and irresponsible act. It would also create whole new class of crises for the agency to deal with, rendering the agency crippled with overwork, inefficiencies and wear-and-tear. Not exactly a magic pill for good agency morale. If the Commission chooses to take this step, it will be shooting at the agency's feet as well as ours.

We need your help to stop this terrible step. First, it is ESSENTIAL that everyone attending the workshop SCREAM BLOODY MURDER on the issue of the stay. If the stay is lifted, you will be held responsible for complying with unwritten rules by your customers, your local newspaper, your State AG and the like. Your arguments with that cast of characters will get even more intense and distracting (if that's even possible). The upcoming workshop is your unique opportunity to make your voices heard.

Second, you need to let the Commission know directly how you feel. Here are the email addresses of the five Commissioners - send them an email THIS WEEK expressing your deep concern over the possible lifting of the stay. Please feel free to cc. me at rwoldenberg@learningresources.com.

Chairman Inez Tenenbaum itenenbaum@cpsc.gov

Commissioner Bob Adler radler@cpsc.gov

Commissioner Thomas Moore tmoore@cpsc.gov

Commissioner Nancy Nord nnord@cpsc.gov

Commissioner Anne Northup anorthup@cpsc.gov

Make your voices heard - don't let this issue catch you napping. We all have the power to help ourselves. It's time to take action on behalf of your company, your customers, your suppliers, your teammates. Please help us by contributing your voice to this critical issue THIS WEEK.

18 comments:

Donna Maria Coles Johnson said...

Rick: The small cosmetics manufacturing industry is dealing with similar issues. The pending FDA Globalization Act of 2009 (HR-759) is different from CPSIA, but the net effect is similar: imposition of standards that make it impossible for tiny business to survive -- and all without any corresponding public benefit. Our industry stands with you!

Donna Maria Coles Johnson
Founder & CEO
Indie Beauty Network

Vivian Zabel said...

So many businesses are being harmed and even closing because of the CPSIA, and the government doesn't seem to care.

I sent emails to each commissioner, although I forgot to Cc you. I will send you a copy of what I emailed them.

Vivian Zabel

VJ said...

Thanks for alerting us to this issue Rob. I am just beside myself. The government is not listening to us on any issue. I have written, now lets see if they listen.

VJ said...

Just so you all know, I received a response from Nancy Nord "I agree with you but am only one vote out of 5. You need to let the other commissioners know your views." Keep up the pressure!!

Vivian Zabel said...

I also received a reply from Nancy Nord with practically the same message.

I already emailed the other four, the same time I did her.

Guess we'll see.

VJ said...

Response from Inez Tenenbaum:
"Thank you very much for your message, Lyn. I appreciate your taking the time to give me your thoughts on this matter and assure you that I will consider them when making our decision on the stay. Knitted garments might fall within our rules excluding cotton, wool, and other materials, so you may not even need to test your products under the CPSIA.



Happy holidays,



Inez Tenenbaum

*** the fact that I make knitted garments largely for charity does not eliminate the danger to other businesses at peril from the CPSIA***

Vivian Zabel said...

Bureaucrats speak with forked tongues. They're mights and mays mean nothing.

VJ said...

Truer words were never spoken. I'm waiting for a response from the other commissioners.

Anonymous said...

This nonscense may be the final straw that collapses the economy completely. They do well to consider carefully--long and carefully--what they are about to do.

Jennifer Connolly said...

I also wrote to the chaiman and commissioners. The first to respond was Bob Adler. His comment was "Thanks so much for your very thoughtful and detailed comments. I truly appreciate them, and I promise that I will carefully consider them."
I hope the commission knows the full impact of rash regulation.

Vivian Zabel said...

Hmmm ... seems as if different commissioners are replying, and not replying to all emails.

Laurie said...

Can someone share the letter they wrote so I can make it my own and get it sent to the 5 commisioners. Thanks. lmfolino@msn.com

evought said...

If the stay is not extended, then the appropriate response is to file in Federal court for an injunction and emergency stay on the grounds that the law is (at least) unconstitutionally vague and over-broad. That kind of fight takes time to get started, so we should start thinking about it now. We can always back down if the situation changes in our favor.

We also need to work on the state level to get the governors and/or state AGs to issue rules that the CPSIA will not be enforced within the state and lobby our state reps to pass a law forbidding its enforcement. The state reps are typically more responsive to local business than to national lobbies. That is what they are for--- to protect YOU from exactly this sort of thing.

The Supreme Court has already ruled that the Fed gov't may not order state officials to enforce Federal law. If the state AGs do not enforce, Congress can do nothing.

Anonymous said...

The CPSIA is such a disaster. We need some common sense applications! Have any of you seen Commissioner Anne Northup's new blog?

www.safetyandcommonsense.blogspot.com

I think she is on our side. I just emailed her, too. I will let you know when I hear back! Thanks, Rick!
Susan

Vivian Zabel said...

Here is a reply I received from Robert Adler and my message under it:

Hi, Vivian

Thanks for the comments. I truly appreciate them, and I promise that I will consider them carefully.

Sincerely,

Bob
Robert Adler
Commissioner
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814-4408
301-504-7731 (phone)
radler@cpsc.gov


To: Adler, Robert
Subject: CPSIA testing stay

I know of businesses that are negatively affected by the CPSIA testing. This law was unnecessary if the previous laws had been enforced. Businesses in the U.S. were not the cause of the lead problem (except the one who imported toys from China and is now allowed to "test" their own products).

I hope you are not a member of the group determined to destroy small business and other lawful businesses in the United States. Your decision on whether to extend the stay or not (you should vote to extend) will tell us.

Vivian Zabel

VJ said...

The response I received from Bob Adler:

Hi, Lyn



Thanks for the comment. I truly appreciate it, and I promise to carefully consider it.



Sincerely,



Bob



Robert Adler

Commissioner

U.S. Consumer Product Safety Commission

4330 East West Highway

Bethesda, MD 20814-4408

301-504-7731 (phone)

radler@cpsc.gov

VJ said...

The Response I received from Anne Northrup. The most complete response so far!


Thank you so much for writing me about your concerns with the Consumer Product Safety Commission’s pending decision to lift the stay of enforcement on testing and certification for lead content. I am very concerned that lifting the stay prematurely will devastate the market – particularly, small businesses. There is no reason to rush lifting the stay for testing and certification of products that contain lead in a form that does not affect a child’s health.

We need to find a way to make the CPSIA a practical law that will protect children from risk without creating a cost-prohibitive compliance process. Small manufacturers and retailers cannot spread the price of compliance over as many items as larger companies. For this reason, the component testing rule is a fundamental element of compliance and has to precede any lifting of the stay. We should avoid making it financially difficult for American businesses employing American workers to bring innovative, quality products to market that comply with the law.

I am actively looking for a way to bring a reasonable, common sense interpretation to the CPSIA. I led the effort to ask the Commission to support a more flexible interpretation, but unfortunately it did not receive a majority of the Commissioner’s votes. Hopefully we can find a reasonable path forward before the stay is lifted.

I invite you to read my new blog, www.SafetyandCommonSense.blogspot.com. The examples you are sending me really help demonstrate the problem and I hope that you will send me more details, facts, or anything that shows me how you are being affected by the CPSIA: How much has it cost you? How are you coping with those costs? Have you eliminated product lines testing costs made them unprofitable? Your real-life stories are the best way to show the perverse effects of the law – that we are hurting our businesses without any real upgrade to our children’s safety. I also invite you to post the letter you sent me on my blog where your story can be seen by others.

Thank you again for your email. Please do not hesitate to send me more at Commissioner_Northup@cpsc.gov in the future. I hope you have a wonderful holiday season.

Sincerely,
Anne Northup

Vivian Zabel said...

VJ, thanks for sharing Anne's response.

The problem is there is no way to make the CPSIA work. It is a bad law through and through, covering areas and businesses that didn't need to be.

At least she gave a more thorough response.