Tuesday, May 26, 2009
The toxic issue of Tracking Labels could be the poster child for absurdity of the current notion of a "precautionary" law. First of all, the very idea of "precautionary" should be carefully reconsidered. The new law is, at best, a different form of precautionary safety law. The recalls in 2007-8 make clear that in the vast majority of cases, recalls are imposed before any injuries are reported. This is certainly "precautionary" and is one reason why injuries from children's products remain low. In that epic period of notorious recalls from lead-in-paint, the number of reported injuries were . . . one. Compare this to DEATHS from swimming pools which AVERAGED 283 PER YEAR in 2003-5. We were already enjoying the benefit of STRONG precautionary laws in children's product safety BEFORE the CPSIA.
Second, tracking labels themselves are precautions taken to an absurd, dangerous extreme. As I have stated publicly, our recall rate over 25 years is 0.00001%. Put another way, of all the units we have sold in the last 25 years, 99.99999% were compliant with law. These statistics are really not far off industry standards (they are better, of course, but not by much). The famous lead-in-paint recalls of 2007-8 (a two-year period) was for far less than 0.01% of all different toys being offered for sale in the United States (99.99%+ safe). If you expand the market definition to include all children's products, like shoes, apparel, pens, etc., the recall percentage is more like Learning Resources'. Think of it - we are going to expend VAST and DEADLY amounts of money to apply tracking labels on EVERYTHING because less than 0.0001% of all children's products might be recalled in any given TWO-YEAR PERIOD. Oh yeah, that makes sense.
We are only beginning to implement tracking labels at our company. If the law is not stayed, as I hope it will, we will be compliant. HOWEVER, the way we will become compliant is the way everyone will become compliant - we will start dropping products or changing our product mix to avoid this law. The items which will die are not only economically viable today but they are also valuable and useful. They must be - we continue to sell them with a profit incentive and they keep selling. Tracking labels ALONE will kill them off. Section 103 will cause a massive die-off of products and companies - all to purportedly improve recall rates on 0.0001% of all children's products in a given year. [As I stated in my testimony at the CPSC on May 12 (second panel), even the contention that tracking labels will improve recall rates is HIGHLY suspect.] Would you EVER plan around a risk as low as one-out-of-a-million in your daily life (aside from periodically buying a lottery ticket)? If the answer is yes, you presumably remain under the covers in your bed all day long, the only place you feel totally safe.
One last, disgusting fact about Section 103 Tracking Labels - the right to impose tracking labels was already among the CPSC's powers. Tracking labels, in fact, have been required by the CPSC as part of certain standards in the past, and only required the month of manufacture, not as many probing, confidential and ridiculous data as required by the CPSIA. Presumably, if the professional staff at the CPSC thought that tracking labels would better protect the American public, they would have used their power to impose them more broadly. Thank heavens Congress knows what's best for us!
We as a society need to make sure we do not slide down the slippery slope of national blindness. Provisions like Section 103 have the potential to KILL. I am not Cassandra - this is a real issue.
Is anyone listening?
Garage sales covered under new product safety laws
By SARA SHEPHERDThe Kansas City Star
Selling any used cribs or playpens at your upcoming garage sale? Children’s clothes with drawstrings or zippers? Pre-1985 books? Rubber duckies or pool floaties?
Better check them twice.
Just like megasize toy manufacturers and stores that sell products from China, the notoriously broad and confusing federal Consumer Product Safety Improvement Act applies to you and your front yard.
Anyone selling products, even used ones, that have been recalled or banned by the act is in violation. The act covers everything from toys with lead paint to cribs that might strangle babies.
“Ignorance of the law is not an excuse,” warns a 27-page Consumer Product Safety Commission resellers’ handbook, released this month. “But more importantly … you do not want to sell products that have the potential to harm anyone, especially a child.”
Besides people holding yard sales, the law applies to thrift or consignment stores, charities, flea markets and people who sell on auction Web sites, the handbook says.
Unlike manufacturers, resellers aren’t required to test used products for lead and phthalates.
However, they are supposed to educate themselves about safety standards and, somehow, ensure none of their products violates them.
The safety commission will not patrol garage sales, commission spokesman Scott Wolfson said. But store proprietors who knowingly or repeatedly violate the law may be fined.
All sellers — and shoppers — should learn about the rules, Wolfson said.
“You could be passing on a danger to an unknowing family,” he said. “We do a great job at CPSC of getting dangerous products off of store shelves. Our challenge has always been getting those same dangerous products out of people’s homes.”
The commission studied thrift stores nationwide in 1999 and found that 69 percent were selling products that had been recalled, banned or failed to meet safety standards, according to the handbook.
After millions of lead-tainted toys from China were recalled in 2007, Congress enacted the sweeping and complicated Consumer Product Safety Improvement Act in August 2008. It took effect in February.
The new handbook, available at http://www.cpsc.gov/, summarizes the law for everyday people who sell used products.
It includes resources and guidelines for identifying risky products, plus horror stories — some with illustrations — of what has and could happen to children because of certain items:
•Drawstrings on hoods have caught on playground equipment and bus doors, causing children to be strangled or dragged and killed.
•Magnetic toy parts, if swallowed, have attracted one another inside children’s intestines, perforating them.
•Children have been hanged when their bodies, but not their heads, slipped between rails of top bunk beds.
•Others have suffocated when foam pellet stuffing from bean bag chairs clogged their mouths and noses.
Throughout Mission’s recent citywide garage sale, piles of used children’s clothes, playpens and bassinets, dolls and toys ranging from elaborate sets to cereal-box prizes were on sale — cheap.
Some sellers were mothers who said they policed their own products for their own children’s safety, but they either hadn’t heard of the new act or didn’t know it applied to them.
Karen Laughton’s wares included a bassinet and a large Fisher-Price toy once used by her children, now 4 and 7.
Laughton said she’d heard of similar products being recalled but that when she checked the list she learned hers were different models or years.
Otherwise, putting them out “wouldn’t feel right,” she said. “I would feel terrible if a kid got hurt because I sold something that I shouldn’t have.”
Stephanie Matchett was selling used toys and clothes her 1-year-old daughter and 4-year-old son had outgrown.
None of the clothes had neck drawstrings. Matchett said she assumed the pajamas were nonflammable because they were new not long ago.
Matchett said she has recall Web sites bookmarked on her computer but admits, “It changes so often...it’s so hard to keep up with everything.”
Stores that sell used products also are having a hard time keeping up.
As the safety act’s Feb. 10 compliance date loomed, frustrated manufacturers and retailers — including book publishers, toothbrush makers and bicycle suppliers — lobbied to have their products excluded from the act, or to be granted stays of enforcement until they could figure out how to comply.
Some succeeded. Others, including the resale industry, did not.
Adele Meyer, executive director of the National Association of Resale and Thrift Shops, said member stores are now doing the best they can to follow the law.
“It’s just the way it was written, it’s almost impossible to abide by this law,” Meyer said.
Some stores, to avoid any risk, quit accepting children’s products altogether, she said. Some that sold only children’s products have “reinvented themselves” by adding adult clothing or furniture to make up for lost inventory.
Stores have always checked recall lists, Meyer said, but some now call manufacturers directly to find out, for example, if a certain product contains phthalates.
Meyer said the safety commission doesn’t have the manpower to police the law among retailers, much less garage sale operators.
Merriam resident Meredith Mullen perused a table full of baby clothes at a recent sale in Mission.
Mullen, who was shopping for gifts for her nieces, said buyers should take responsibility, too: “If you purchase something at a garage sale, you should probably check it out when you get home.”
Some things you shouldn’t sell •Any recalled product, for children or adults. Cribs, playpens, bunk beds, baby walkers and board books are among commonly recalled products.
•Toys, other children’s products or furniture with paint containing more than the legal limit of lead. Potential culprits include inexpensive children’s metal jewelry and clothes with metal decorations or closures.
•Toys or child-care articles containing more than the legal limit of phthalates. Balls, bath and pool toys, dolls, bibs and teethers are examples of risky items.
•Books with metal spiral bindings or designed primarily for play, like plastic bath books, which may contain lead or phthalates.
Some things you can sell •Items made entirely of wood, without paint or hardware.
•Clothes, blankets and other items made entirely of yarn or textiles such as cotton, wool and nylon. Thread, elastic and closures must be non-metallic.
•Traditional books printed after 1985.
•Vintage children’s books and other collectibles not primarily intended for children.
The new CPSC handbook for product resellers can be downloaded free at http://www.cpsc.gov/.
Monday, May 25, 2009
I wish teaching Earth Science by way of a poster was my biggest concern. I have been on record for a long time worrying about how Science would be treated under this terrible law. For many reasons, science items are particularly exposed. That does not mean they are dangerous - their record for safe use is sterling - but under the rigid and unthinking arbitrary standards of the CPSIA, they are verboten, whether it makes sense or not. Up to now, perhaps you thought this issue was simply a product of my feverish imagination. Then comes along the Potato Clock. This clever product can be purchased from more than one source, and is also a DIY home science project, perfect for Science Fairs. Please note that the homemade Potato Clock utilizes "dangerous" items like nails, clips, wire, batteries, etc. Welcome to science education . . . .
Anyhow, recently a manufacturer of the Potato Clock decided to test its version for compliance with the newfangled CPSIA. In their eager beaver-ness, they shot themselves in the foot, discovering (horrors) that the insulation on the product's potato wires contain trace amounts of lead over the arbitrary limits of CPSIA. Not that anyone has ever been hurt from wire insulation (at least not from nibbling on it). Unfortunately, safety is the least of anyone's concerns under the CPSIA.
The actual knowledge of the product's testing failure precipitated the kind of CPSIA horror story that has been interfering with my sleep for months. First, the company decided that since it now knew of the test failure, it had an immediate reporting obligation under CPSIA Section 15(b). In addition, they concluded they had an obligation to immediately stop sale, since continuing to sell would be another "knowing" violation - yes, kids, that's a felony with possible penalties of jail time and asset forfeiture (goodbye house and car!).
Presumably, the executives at this company could not imagine going to jail for selling Potato Clocks as they had for years, but heck, Congress writes the rules. The CPSC, apparently, upon receiving this (unwanted) 15(b) report concurred - yep, the wire insulation exceeds the standard, and yep, you have to stop sale. No recall was required by the CPSC BUT the company appears to have decided almost immediately that an informal recall was mandated. Why might they have decided such a thing? Well, perhaps they had a generalized fear of liability from dealers who might be sued for selling this "dangerous" device if it ever came to light that the product had impermissible lead in the wire insulation. That seemingly uncontrollable situation forced the company's hand and despite the fact that the CPSC had no interest in a recall, the company sent out letters demanding that dealers immediately stop sale and return the devices to the company.
Okay, what's the problem? Aren't we all "safer" now that this "scourge" has been removed from store shelves? Well, hold on a moment. First of all, the product is not even theoretically considered "dangerous". This is a classic example of a hyper-technical violation of the CPSIA that entraps innocent and useful products. It's not a question of safety for anyone, including the CPSC, the company - and you. Stopping sale of this item made NO ONE SAFER - it only made the company poorer and left schools with less equipment to teach science.
There are some huge problems here. First, please note that this series of unfortunate events was driven by a well-intentioned company trying to comply with the law. Their reward - losses in the tens of thousands of dollars. Second, after learning that no good deed goes unpunished, the company began to think in terms of possible liabilities. With "actual knowledge" being irrefutable, the liability exposure under the law by acting sensibly skyrocketed, compelling the company to act self-destructively. Thus, the company imposed a recall on itself for a product everyone acknowledges is safe, removing it from schools and homes. Third, the company went further than the regulators demanded, all to minimize its exposure to lawsuits and possible criminal charges - for selling a Potato Clock. There is no way to stop this chain of events under this draconian law - ask yourself what you would have done. This story is going to be EVERYONE'S story soon. Get used to the idea.
But the WORST part of this story, the most chilling, is the part about the wire insulation. The Potato Clock was recalled for having too much lead in the wire insulation. Why did it have lead in it at all? Wire insulation contains lead because it is recycled vinyl, probably recovered principally from scrap of other wire. Remember, recycling is good for our planet, and responsible companies try to use recycled materials whenever possible. Only virgin vinyl can be certified lead-free. A switchover to virgin vinyl insulation would be very costly and would means that the old vinyl wouldn't be recycled anymore. That won't happen.
The real problem comes from the fact that the Potato Clock utilizes "ordinary" wire. Everyone and everything utilizes "ordinary" wire. No specially-coated wire is used in children's products and even if it were available, it would be too expensive for this kind of application. Potato Clocks should use "ordinary" wire. If ordinary wire will always fail the CPSIA standards because of its insulation, then everything using wire in schools can't be sold for use by children under 13 years of age. This means, among other things, no electricity education before the 7th grade in this country (and only for the 13 year olds in the room - the 12 year olds will have to leave the room until their birthday). Call me crazy, but I think that's bad public policy. I am not aware that teaching basic science is illegal in China, India, Germany, Australia, Canada, etc. Only in the land of idiots is a rule like this possible.
This will not be the end of the devastation of science education in this country. I have previously noted that microscope light bulbs have a little dot of solder on their base that will fail the lead tests. That means no more light for our school microscopes. Oh well. Other items commonly used for science education include fasteners (nails, screws and bobby pins), wire, magnets, rocks, glass and crystals, metal cups, aluminum foil, steel wool, switches, solar panels, lab equipment like thermometers, scales and ceramic ware, motors, aquariums - the list goes on and on. These items won't make it under the CPSIA for many reasons, some economic and some physical. NONE of them will fail because they are unsafe or because they have poisoned children in schools. Still, American elementary science education will be severely damaged thanks to your friends in Congress.
Given the light and uneven resistance to this law by the general public, I wonder at what point people will start to doubt the "wisdom" of their Congressional leaders on their fancy new safety scheme. I have spoken to members of the press who became interested in the CPSIA issue when their school book fair outlawed the sale of used books (no doubt in homage to Thomas Moore's advice to sequester old books until they are proven "safe"). What about everyone else? Perhaps when people realize their kids are learning about rocks from pictures (to keep them safe!) and are not allowed to have direct, hands-on science experiences until Congress deems it safe (in the 7th or 8th grade, depending on the date of your child's birth), they might start asking a few probing questions. It's about time.
There's no excuse for this. Rise up, America, before Congress allows this law to rot out your educational system!
Tuesday, May 19, 2009
I suppose this must be why they put lead-in-paint on cars.
Monday, May 18, 2009
a. The CPSC Public Meeting on Tracking Labels (May 12)
b. The CPSC Commission Decision to Reject the Bicycle Industry Application for Exemption and Call for a Two-Year Stay (May 12)
c. The CPSC Commission Decision to Reject the NAM Petition to Stay the Tracking Labels Provision (May 13)
d. The House Small Business Committee Hearing on the CPSIA (May 14)
These events are all over the map but can be correlated. It boils down to this (no surprise): the CPSIA is a rigid and inflexible law designed to remove discretion from the CPSC Commission. The CPSC is not free to decide what is safe and what is not anymore. The twisted logic of the CPSIA creates legal conundrums that have no possible solution under the law, leaving the Commission little choice but to legislate with stays (see the bicycles decision, for example). Small business remains a pawn in this dirty game of politics.
When faced with the request by the Bicycle Product Suppliers Association for an exemption, the CPSC staff correctly concluded that although the lead intake from bicycle use was absurdly low (as any sane adult would acknowledge), they had no choice under the law but to reject the request because SOME lead is absorbed. Less lead than absorbed by eating your daily dietary requirement of dirt, but more than zero. Under the CPSIA, this is an irresolvable dilemma. [I will spare you the silly comparisons between the intake from bikes and candy.]
The Commission, stuck with this law, utilized its only remedy to avoid a plainly stupid result for bikes - it authorized a two-year stay on a basis to be determined. Yes, they need a reason to grant the stay, to at least maintain the appearance of staying within their legal authority to protect the public. As in the case of ATVs, the Commission needs a safety excuse to permit the resumption of manufacturing and sale of bicycles in violation of the lead standards. [N.b., this decision is an illegal act under the Constitution (legislation by a Federal agency is against the law).] In the ATV case, the Commission noted the need to keep kids safe by keeping them off adult-sized ATVs. And in the case of bikes, the CPSC intends to protect against what dangerous alternative? Spraining your ankle while walking? Not being able to reach the pedals on adult bikes? Ms. Nord, in her statement accompanying the bike decision, comments: "This course of action is becoming all too frequent for the CPSC. It is needed to avoid market disruption and to protect consumers. However, it is not an optimal way to implement a statute." It doesn't take much to reduce a legal system to a shambles.
The Commission's helpful spirit didn't last long. In an incredible irony, on the very next day the Commission split 1-1 over a tracking labels stay in its first deadlock over the CPSIA. Despite overwhelming evidence of market damage provided in testimony at the CPSC's public meeting on Tuesday, as well as in more than 130 comment letters, the Democratic Commissioner decided he had given out enough justice for one week. Mr. Moore commented: "While the Commission has stayed enforcement of a few sections of the CPSIA for certain products, it has not granted a blanket stay of enforcement from a provision for every affected product, which is what this request seeks." Ummm, other than the stay on testing and certification you voted for, Mr. Moore. No matter, Mr. Moore notes that "[this] will be a learning process for all of us. . . ." Something to look forward to.
One can only wonder how Mr. Moore's vote was regarded by the backers of the CPSIA agenda. First, we hear again and again that the CPSC must toe the line of the law. Then, when ATV'rs and the like begin to flex their political muscle and embarrassing articles about library books crop up, some Congressional venom flows and 28 Senators plead for "common sense". The Democrat on the Commission was positioned as the "good one" with "common sense" and Republican Nancy Nord set up as the "bad guy" standing in the way of progress. Now it again looks like Mr. Moore hasn't been reading his script. Of course, this is the guy who called for sequestering library books.
Mr. Pryor in his April 9 letter with 27 Senator friends instructs: "We confirm that the Congress provided for agency discretion . . . to implement the Act in a manner that would recognize anomalies in implementation and to work with businesses, institutions, and consumers to establish the protections of the Act without undue impact on the stream of commerce." [Emphasis added] Ah, but surely they didn't mean twice in ONE WEEK! With his "we'll all learn a lesson on this one" decision, Mr. Moore punctures the illusion (shaky at best) that the Republicans are the ones who lack common sense. Live by the sword, die by the sword. . . .
These decisions were bookended by a tracking labels hearing at the CPSC which set out extensive industry concerns over the cost and consequences of the new label rule, and a House subcommittee hearing that documented the terrible impact of the CPSIA on small business. After the polite and unusually civil hearing in the House, the Democrats nevertheless recharacterized it for their political purposes, ignoring clear ebidence provided by the witnesses.
Pardon me if the week left my head spinning.
So what happens next? An interesting perspective was offered by DNC Chairman Gov. Howard Dean on the CNBC Power Lunch program on May 7th: "[We've] had quite enough capitalism in the last eight years and I think we need some regulation now." That seems to sum it up.
Unless and until the new Commissioners okay a change in the law, unless and until a Democrat has the nerve or good character to admit a fundamental mistake in the drafting of the CPSIA (as the Republicans have conceded) and Congress takes action, there is little to hope for but time. The brunt of the impact of the law will be felt by small businesses and family businesses, a group with a great record for patrolling safety and staying close to the details. It's a shame that this strong group of corporate contributors will be sacrificed to satisfy the "better safe than sorry" crowd. We'll see whether they will feel safe or sorry when the consequences of their handiwork are known.
Thursday, May 14, 2009
Watch the hearing videos - Nancy Nord's testimony was honest, insightful and intelligent, and the committee treated her fairly. Notably, Ms. Nord said what I have always wanted to say (on the record), namely that none of the armchair quarterbacks in Congress can point to ACTUAL LANGUAGE in the CPSIA that gives the CPSC the purported "discretion" to exercise common sense judgment in implementing the law. Of course, there is no such language (the opposite is true, as Ms. Nord noted clearly) - the Dems' claims of such authorization is poisonous and shameless manipulation. The industry witnesses (including AmendTheCPSIA Rally speaker Susan Baustian) painted a depressing picture of a law devastating small business without acheiving any safety payoff. Small Business is the charge of this committee. The truth was spoken, did anyone listen?
Unfortunately, Chairman Jason Altmire of Pennsylvania had selective hearing today. See Altmire's Committee press release in which he makes up a story about industry fingering the CPSC. This didn't happen - the videos don't lie. The Republicans didn't have wax in their ears - the Republican Committee press release accurately notes that the testimony universally criticized the law, NOT the CPSC. Isn't that interesting - the Republicans seem able to digest the spoken word, yet the Dems hear what they want to hear. Oh, wait a sec, what's this? A press release from Jason Altmire's OWN website - it quotes Laurel Schreiber detailing the small business problems caused by the rigid and unrealistic law (and then Mr. Altmire launches into the Party lies - oops, I meant "Party line" - about the "bad" CPSC under Ms. Nord). So Mr. Altmire apparently was able to hear at least a little bit of criticism of the law, when it emitted from his own constituent, but still seems to have concluded, despite the testimony from several witnesses, that the problem is solely with the agency.
If Mr. Altmire and the Dems already "knew the answer" and had no intention of listening to the small business witnesses, why hold hearings at all? I can only speculate that this is some sort of Kabuki Theater staged for the benefit of I-have-no-idea. It seems that Mr. Waxman and his associates finally decided that if the "whiners" want a hearing, they'll get a hearing, and the Dems can twist it into whatever they want. The word must have come down to Mr. Altmire that if he wants to eat, he must toe the line. Hence the fantastic misleading press release. [He's not the first Dem to be taken out to the wood shed about the CPSIA.] Interestingly, Mr. Altmire seemed the epitome of polite and empathic concern at the hearing but turned into a jackal at press release time. This is not particularly endearing behavior, if you ask me.
Get used to it, it's a fixed game. The Democrat-run Congress has decided to go its own way - they don't work for you anymore and are deaf to your legitimate concerns. The situation has devolved into "anti-transparency" where government has been taken over by people with a Nanny State agenda, and they will impose it using all available "behind closed doors" means to keep inquiring eyes away. The "anti-transparency" government operates by repeating the Big Lie over and over - namely that the law is perfect (oh what a great process to craft it!), that we really need this protection, and that the CPSC is at fault with intentionally incompetent implementation - until we all fall under their spell or expire from exhaustion (they seem to be indifferent). You will see this again with Climate Control and the Toxic Substances Control Act (Waxman's version of REACH).
This new way of government is for the "have's", not the "have-not's". In this case, the "have's" are consumer groups and rich industry groups or companies with large, vocal constituencies. The "have-not's" are the rest of us, including MANY law-abiding family businesses that used to be considered the backbone of the economy. This is not what the Constitution promises but the stewards of your future are unconcerned. After all, fairness and equity are secondary considerations since we REALLY need all this precautionary protection. The shadowy staffers who run Energy and Commerce in both Houses of Congress send messages to their Commissioners on how to grant common sense "justice", and ignore the law in the process. This works great for our staffer government.
Why is this "anti-transparency"? Ahem, what about public hearings instead of quiet instruction in the dead of night? What about laws that are written down, and enforced as written? What about laws that apply to everyone equally, without regard to economic ability to mount multi-million dollar campaigns to gain exemptions? In the new world where enforcement and practice diverge away from the law itself, we are subject to unwritten laws that can change without due process. This is simply not right and is subject to abuse.
And another thing, Mr. Obama does NOT feel your pain. His position, like the rest of the Deaf Dems, is to jam this law down your throats, reasonable or not. Before we grant him Sainthood for a good couple months of speechifying, I believe he should be held to account for his culpable silence and complicity on this law.
I may recall this matter the next time I vote.
Monday, May 11, 2009
a. Tomorrow is the scheduled CPSC Tracking Labels meeting. There will be two panels of speakers, one of which includes me. The meeting runs from about 1 PM - 5:30 PM EST and can be viewed online. Interestingly, the vote on the NAM petition to stay the implementation of Section 103 (tracking labels) has been delayed from last Friday until Wednesday after this meeting, supposedly at the request of Commissioner Thomas Moore. This move is quite sensible as it made NO sense to vote on the NAM petition two days before having an open meeting on the topic. That would have really been thumbing the Commission's nose at industry, a very unnecessary slight. Comments were finally made available online at http://www.cpsc.gov/ and are hundreds of pages long. There were perhaps 150 comment letters filed, impressing the folks at the CPSC. Let's hope they listen hard tomorrow. The big issue is how long is needed for a stay. My comment letter stated that two years are needed.
b. As if May 12th wouldn't be interesting enough, it is also the day docketed for the Commission decision on the bicycle exemption request. The CPSC staff properly recommended voting the request down because, although no sane person would believe that bicycles are dangerous because of lead, the leaden CPSIA says that if any lead can leak into the human body from a bicycle (i.e., one atom of lead), no exception can be made. Thanks, Congress! Apparently, it would be much better to get in our lead paint-encrusted cars and drive to our destinations, kids. Cap and trade that, Mr. Waxman!
The Commission has no easy out on bikes like they did on ATVs. That is, there is no excuse to legislate this time, never mind that legislating is illegal for an agency of the U.S. government. With that door seemingly closed, we are either about to venture off even further into legal netherworld OR the Commission will ding the bike folks as the Staff recommends. I hope they do ding the bikers, not because I have anything against bikes or the bicycle industry, or even because I don't want the CPSC to continue the new tradition of secret laws (I don't like secret laws, in fact). No, I want them to deny the bike request because this law has to be changed. The worse it gets, the better it gets for opponents of this law. And, with bikes finally outlawed, we ought to have more people available for a march on Congress . . . .
c. The interesting week continues on Thursday when, heavens-to-Betsy, an actual House committee holds hearings on the CPSIA! Yes, at least as of today, the House Committee on Small Business Subcommittee on Investigations and Oversight will hold hearings on Thursday at 10 AM EST. See the Committee's website for more details. Despite my pleas, I have not been invited to appear as a witness. That being said, this is progress. Let's hope for good questioning and thoughtful inquiry.
d. As you all know by now, Mr. Obama has appointed two new Commissioners, Inez Moore Tenenbaum as Chairman and Bob Adler as Commissioner. Ms. Tenenbaum appears to be new to the safety gig and is considered to be a bit of an unknown. Let's hope that her background as a South Carolinian leaves her open to the notion that not all industry objections to the dreaded CPSIA are self-interested and "evil". One can always hope . . . . We need open-minded and curious leadership to help mend fences and restore common sense to safety regulation.
I have previously written about Mr. Adler, reporting on his keynote speech at ICPHSO earlier in February. As you will see, he gave very sensible and even-handed remarks and seems to be open to a dialogue with all parties. I hope his optimistic vision is achievable. I would also note that he is a Professor of Strategy and Entrepreneurship at UNC Business School. This would suggest that his mission in life is not put all of us out of business . . . . I am actually looking forward to having Bob Adler on board at the CPSC. Please don't make me sorry I said that!
The appointment of Tenenbaum and Adler has positive implications for the CPSIA saga. Okay, perhaps I am a giddy optimist. For one thing, I think that everyone (EVERYONE) knows that this law is seriously screwed up. The issue now is how to dig our way out of this mess. [Start by turning the bike petition down, Commission!] The Dems in Congress would rather eat dirt than hand a "victory" over to Republican Nancy Nord by admitting that anything is wrong with their precious law. Thus, no movement can be expected on the law itself while she remains the sheriff in town. That being said, desperate Senators have instructed the CPSC to operate with "common sense", meaning that the CPSC is being given free rein to disregard the law and do as it pleases. Thus, the ATV stay. There are limits to this kind of giddy disregard of law (the Constitution, blah blah blah, oh-what-a-killjoy) and in time, the Commission will define how far they are willing to go to fix things for Congress. The next step in this saga on behalf of Congress (barring some surprise on Thursday at the Small Business subcommittee hearings) is to confirm the two new Commissioners and then in due course, hold a showy hearing of the House Committee on Energy and Commerce (Bobby Rush's Subcommittee, actually) where the new Chairman can give her diagnosis of the law's issues, what's working and what's not. This message will shock and amaze the Dems who were previously "unaware" of any problems . . . . They will then set about liberating the agency now that it is in safe Democratic hands again. Will the world be safe for democracy after this? Who knows, but let's hope we can survive long enough to find out.
Btw, for those of you keeping score at home, the two new Commissioners cannot BOTH serve prior to August 14, when authorization of the reduction of the size of the Commission from five to three Commissioners legally expires. Thus, if no one resigns before August, presumably Mr. Adler will have to sit out the fun for a few months while he works on getting his handicap down. The Republicans have another vacancy to fill as well, also to serve after August 14. Each Commissioner gets their own staff, and soaks up perhaps $1 million per annum in funding. Your tax dollars at work!
Wednesday, May 6, 2009
With President Obama's appointment this week of two new Commissioners at the CPSC (subject to Senate confirmation), hearings are likely to occur (eventually) under the auspices of the House Committee on Energy and Commerce. It will be interesting to see if any semblance of open dialogue is permitted at that time. In any event, the testimony of the new Chairman (and perhaps others) will be an indicator of whether further relief will be allowed. The speculation from Rumorville is that the message of a Democratic Chairman will be much better received by Congress, even if the message is exactly the same as less-palatable previous witnesses have delivered. The current situation where the CPSC must keep issuing stays to resolve safety dilemmas, leadtime issues or basic fairness and equity is completely intolerable and even the consumer groups and legislators are admitting it (privately). One hopes, perhaps naively, that at the time of a hearing, Congress will find the resolve to address these issues openly and with an open mind.
Ironically, the greatest outcast in this "safety war" has the greatest ability to contribute to a solution. Corporate America doesn't deserves its title of Public Enemy Number One and wears the crown with unease. If the new Commissioners can foster a renewed environment of trust on Capitol Hill, perhaps industry input can finally be considered constructively. Since far less than 1% of companies affected by the CPSIA have ever had a run-in with the CPSC or are known to have caused torts because of lead or phthalates, it seems likely that their expertise in their businesses and their products can be useful in crafting rules that facilitate better safety while not choking off commerce. I continue to believe this is possible.
Step one: vote for the tracking labels stay!
Monday, May 4, 2009
a. The ATV Stay is LEGISLATION - AND IS AN ILLEGAL ACT BY THE CPSC. The Statement of Nancy Nord says it all: "We have heard from Members of Congress that they did not mean for the law to impact youth ATV's in this way, that we should use stays of enforcement to address "anomalies" in the law, and that, with respect to ATV's, we should regulate prospectively." WHOA! Hold on, Jack! I must be imagining things. I have a rather vivid recollection of the CPSC General Counsel intoning publicly on November 6 that Congress MEANT the CPSIA to apply retroactively and that Members of Congress had told the CPSC privately (and adamantly) that they had carefully considered this provision and wrote it to be retroactive. In fact, I remember a particularly colorful turn of phrase used to describe the manner in which this message was delivered to said General Counsel by these Members of Congress when they asserted that her September 12 opinion letter on retroactivity was not "tough" enough. . . . The phrase used left no doubt as to the urgent and emphatic nature of the message from Congress that retroactivity was intended. And NOW, Members of Congress seem to be having a rather different recollection. With all these memory issues, you'd think that someone would think to defer to the written law. . . .
The decision of the CPSC to rewrite the law on ATVs is called LEGISLATION even if 28 Senators really really wanted them to do it. It is also called baloney. Of course, it is politically expedient for Congress to require the CPSC to be its clean-up crew. Problem - what about the REST OF US? Hmmm, I guess Congress' careful consideration of retroactivity will produce yet more "unintended consequences". What's the difference, anyhow? Once the ruckus over ATVs dies down, Congress can go back to whatever it is doing and safely ignore the devastation in the rest of the children's market.
b. The ATV Problem Comes With A Built-In Excuse to Act - So How Will The CPSC Find Loopholes for Bikes, Books and Pens? The CPSC pointed to the dilemma of holding kid-sized ATVs off the market for admitted lead standard violations, given that parents would simply let their kids ride adult-sized ATVs which are known to be unsafe for kids. Skewered on the horns of a dilemma, the CPSC resolved the ATV problem with common sense (illegally, but sensibly). But now there's the not insignificant issue that no such excuse allows the CPSC to manhandle the law for the benefit of other CPSIA poster children, such as library books or ballpoint pens. Consider, for example, the Request for Exemption by the Writing Instrument Manufacturing Association. Guess how much lead you would absorb from one minute's sweat contact exposure to a ballpoint pen . . . . Try four one-hundred-TRILLIONTHS of a gram (0.00000000000004 grams). Yes, that's right. Put another way, how long would you have to exposure yourself to a pen in your sweaty palm to absorb a microgram of lead (one-millionth of a gram) through sweat? Between 475 and 476 years. Personally, I wouldn't make it that long writing on my hand.
If the ATV decision means that administration of the CPSIA going forward will depend on constantly taking the temperature of Congress, expressed not as laws crafted in the light of day subject to established legislative process but instead as backroom conversations or advice from shadowy staffers who seek to make the CPSIA spin like a top, then perhaps the agency will be able to cut these product classes and industries free. Anything's possible, I guess, especially if there is no real legal process, just a sham to give the appearance of accountable governance. Nifty - the only cost we will incur is the loss of the integrity of our legal system. To me, this is an incredible abuse of power.
c. The CPSC Confirms that Lead Intake Which Has No Measurable Impact on Blood Lead Levels Cannot be Tolerated under the CPSIA. I cannot say this is a revelation but at least we have it now in unambiguous terms, written down: "[The ATV Applicants] presented information that the lead exposure from their components would [not] result in any measurable increase in blood lead level (a conclusion . . . not dispositive of the absorption analysis in section 101(b)(1)), although certainly important to scientists considering the risk of lead exposure . . . ." You know, like the professional staff at the CPSC used to be allowed to do.
The Notice goes on: "To the extent that [ATV component alloys] are required for safety reasons relating to functionality, greater durability or corrosion resistance, removing the lead from these alloys could result in a vehicle more prone to structural breakage, premature brake failure, or other defects that could present a risk of death or serious injury." To me, this seems like a small price to pay for a day's ATV ride to avoid taking in the same lead you would breathe in less than five minutes. It continues: "In contrast, Congress has eliminated the risk analysis associated with the absorption of lead." Brave New World - learn to love it, guys!
Bottom line: The ATV decision is make-it-up-as-you-go-along law. That is TERRIBLE news for everyone, even those who seem to benefit in the short run from this particular decision. Beware this kind of gift. Law crafted in shadows has a tendency to bite hard.