Sunday, August 30, 2009

CPSIA - A Rich Irony, Courtesy of the CPSC

As you probably know by now, Mattel won approval from the CPSC for its seven proprietary overseas labs to conduct official and certified safety tests under the CPSIA. The AP recently reported on this decision, and noted that the approval was seemingly secret, as it was absent from the CPSC website and was not announced by press release. For the first time in recent times, I found myself agreeing with a consumer advocate on a safety issue (Mike Green was quoted in the article noting the irony of this approval). The AP article generated a firestorm of commentary, such as the angry post of Holly Jahangiri on

Mattel, of course, lobbied to include this cost-saving provision in the new law. I have known of its existence for quite some time, and yes, it always stunk. Mattel is largely individually responsible for the maelstrom that spawned the CPSIA. How lovely that Congress saw the "logic" of making things a bit easier for them. To heck with Small Business, I guess. [Rep. Jason Altmire, are you listening? Probably not . . . .] The facts of this situation speak for themselves.

There are other ironies. First of all, Chairman Tenenbaum promised us that her "regulatory philosophy embraces open dialogue, information sharing with all stakeholders, and a commitment to finding mutual interests." Brave New World, huh? Well, just a quick clarification here: is a secret decision, not announced to the press or published online, the kind of "information sharing" and "openness" we can expect from a Tenenbaum-led CPSC? I would hope we could do better than this.

Second, and a richer irony, is that Mattel is not new to testing. Are any of you of the opinion that Mattel starting testing its products AFTER the famous recalls? Well, I have no direct knowledge of the situation, but my money says they were big testers before the recalls. Furthermore, I would presume that they have bulging file drawers FULL of test reports on the items that were recalled. So what happened? I believe Mattel tested the heck out of their products - but they apparently failed to properly supervise or control their supply chain, and their products were later recalled for undetected defects. Congress in its infinite wisdom decided the solution to this dilemma was to make everyone test before importing (something that I believe Mattel did) as a way to "assure" that the toy recalls would never recur. Yet, the Mattel facts suggest that this is nothing more than a fantasy. Or an election cycle publicity stunt. AND which operating company is the ONLY one approved to run its own labs so far? We can't know for sure since the CPSC seems to deem that information confidential, but I believe the answer is ONE - namely, Mattel, the company with the problems in its supply chain management processes.

Things are off to a rousing start at the CPSC.

Of course, I am not particularly jealous of Mattel for their labs. I cannot afford to set up a firewalled lab or seven of them, and I doubt we could ever generate enough testing volume to make it pay (try as Congress might to put us out of business from testing expenses). If they do a good job, I really have no objection to their performing their own tests. As experience instructs, however, the devil's in the details. Frankly, the tests aren't the issue for safety, anyhow - as Mattel's experience demonstrates. I wonder how the CPSC will deal with recalls of Mattel items tested in Mattel's own labs. Hmmm.

It's no irony that Mattel is leading the way and using its prodigious wealth to feather its nest, perhaps at the expense of everyone else (as a practical matter). It is a tragedy that Congress is so shamelessly indifferent to the woes of smaller companies suffering a terrible economic burden because of its nifty new safety law. As long as the Chicago Tribune keeps giving them headlines to stay employed, our self-concerned political leaders will be content to let us flap in the wind. But they are not quite as cold-hearted as that. At least we know that they are concerned about somebody besides themselves - like Mattel.

Thursday, August 27, 2009

CPSIA - Wanted, a Demonstration of CHARACTER

I hear from readers of this Blog practically every day. It is obvious that I am not alone in my strong opposition to the CPSIA. In fact, the pain seems to be widespread, across many industries, forms of business and channels of distribution, and feelings of disenfranchisement and loss remain intense. I get the sense that you recognize that Congress is deaf to your concerns, having made up "its" mind a long time ago. [In fact, this is not entirely true since many members of Congress are on record with strong reservations about the law. It's the Democratic leadership who closed their minds and closed their doors to us.]

Because Congressional leaders (Dems) won't talk to us and aren't motivated to do anything to fix the mess they made, much of the angst now focuses on the CPSC. I have said many times that I don't envy their job. The CPSC is paid to enforce this stupid law, and inevitably, enforcing a stupid law . . . well, it doesn't make you look good. Much frustration and anger has been directed at the agency for doing their unpleasant job, a burden replete with inflexible and uneconomic regulatory limitations, unreasonable workloads and unrealistic deadlines. In addition, the agency is acting in a disciplined way, writing rules to implement a stupid law in the stupid way Congress wanted it implemented. Of course the new CPSC rules look stupid - given where they came from. This could be anticipated - as a Federal agency, the CPSC must simply fill in the holes in the law, not re-write it. [There is Supreme Court law on this topic (Wayman v. Southard (1825): "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.").]

If Congress won't act and the CPSC can't help us, either . . . what do we still want under these circumstances?

I have an answer: we want a demonstration of character by the CPSC. I know those are strong words but it's time to stop beating around the bush. Congress is deaf - face it, if Mr. Waxman gave a damn about you and me, he might have found a couple hours to call a hearing in the last year. He has no intention to act, no matter the pain or waste we have proven (as our dear friend in Senator Durbin's office acknowledged last May). That means that unless we want to wait for someone to save us that isn't going to come, we need the CPSC to rise to the occasion. Notwithstanding the legal analysis above (which I happen to believe is correct), we need MORE from the CPSC and its leadership. They know as well as we do how misguided this law is. They know about our pointless losses and the incredible, wrenching disruptions in our businesses. They also know the law is causing MASSIVE misallocation of their limited resources away from real issues of safety and toward nonsense (like the agency's contemptible Resale Roundup program which has a zero percent chance of preventing an injury or saving a life, or the senseless devotion of hundreds or thousands of man-hours and millions of dollars to the prosecution of safety investigations of ballpoint pens, rhinestones and bikes and ATVs for their lead content). They know this law is ruining their agency and the markets they are supposed to patrol.

The agency's inability or unwillingness to find a way to steer this law to sanity is not as compelled as they might want you to believe. To argue such is nothing more than a cop out. Any lawyer worth his salt can read a law to mean anything he wants. In fact, the agency's tilt toward Congress might be remarkably shortsighted. Is it really in anyone's best interest, including the CPSC's, to play footsie with Congress on such a defective law? The outcome seems pre-ordained to me. Of course, the route of least resistance may be to try to convince America that policies like sending inspectors to garage sales are necessary to "keep kids safe" but how long will that illusion last, and when the mania finally passes, who will still respect the CPSC? They are hitching their wagon to legal lunacy that they themselves recognize clearly.

The solution is character. The CPSC can resist. Notably, they have been given permission by 28 Senators to use their "common sense". Perhaps a little more creativity in legislative construction is needed. Perhaps a little more skepticism about the perfection of Congress' legislative process or Congress' knowledge of safety issues is merited. There once was a day when the CPSC's principal concern was doing the "right" thing (as opposed to trying to please Congress), and the mission of safety was their guiding light. Unfortunately, today's mission seems to be maximizing bureaucracy, not safety. Guys, you are letting us down. We have no one left to turn to but you. Trust, faith and hope in the agency has not been entirely destroyed, despite low points like the pen decision, the ATV decision and Commissioner Moore's recommendation to sequester library books. I, for one, want to continue to believe that I can trust the CPSC, as I have for almost 20 years. I will admit my faith is wavering.

CPSC leadership can strike a different chord, can write different rules and can take more personal risk in pressing Congress for a restoration of rationality to our national standards of safety. This is an issue of character - I think it's time for action.

CPSIA - WSJ Letter to the Editor on Our Favorite Law

AUGUST 26, 2009
6:33 P.M. ET

Refusal to Fix Act Hardly Inspires Trust

Congress's refusal to fix the Consumer Product Safety and Improvement Act ("Consumer Product Destruction," Review & Outlook, Aug. 12) is, if possible, even more irresponsible than the original legislation. Intended to protect children from lead paint in Chinese toys, the law has resulted in both huge losses and new regulatory costs on industries ranging from motorcycle and ATV manufacturers to toy makers and retailers. Many of these products pose little or no risk of lead-poisoning to children—or anyone else. Yet faced with a real problem—one it created and which it alone has the power to undo—Congress does nothing.

This should serve as a warning to the rest of us as lawmakers seek to ram through massive climate and health-care legislation. The CPSC shows that the unintended consequences of crisis-driven lawmaking are often worse than the original problem—if it was a problem. Don't count on Congress to correct its mistakes.

Eric Havill
Branchport, N.Y.

Monday, August 24, 2009

CPSIA - Another One Bites the Dust (Change We Can Believe In?)

The funereal CPSIA has claimed another victim, a Chicago-based business named Woodland Magic Imports. This company is an importer of craft kits aimed at boys. In a letter auspiciously dated August 14, Woodland announced its closure owing to the stress of the CPSIA plus the weak economy. [Where have we heard this before???]

Their words: "The past couple years have been tough for everyone, starting with the toy safety challenges followed by a volatile economy. On the horizon for February are major changes in how products can be imported into the United States. It's enough to make everyone's head spin! We are no exception. Starting a new business during these challenging times has been a rough ride for us. We certainly feel blessed to have learned so much about this amazingly complex industry, but it has taken a toll on our family and, for that reason, we have decided to suspend our operations until further notice." [Emphasis added]

Should we care about little Woodland and its owners, employees and customers, when the mighty CPSIA making us all so safe? Isn't the demise of Woodland a "necessary" cost? You know, wrecking their family lives and depriving them of their aspirations, all to make everyone safer?

Well, I can't answer this question for others, but I can quote a staffer to Illinois' own Senator Dick Durbin:

April 16, 2009:

"I think you are right that the CPSIA imposes costs on businesses, and because of economies of scale it’s the smaller businesses that will feel these costs more acutely. This is part of a larger calculation that it’s worth the costs to shift from the old system of post-market correction (once a dangerous product is out in the market and leads to sick kids, recalls, lawsuits, etc.) to a new system of pre-market testing and certification (instead of just assuming products are safe and paying the price for false assumptions).

. . . I agree with you that the CPSIA means more costs for small business – because it means more costs for all businesses as part of the cost of moving to a pre-market rather than post-market correction system. But I think we will have to agree to disagree on whether the CPSIA gives the CPSC enough authority and flexibility to implement the new requirements in a way that accommodates the disproportionate impact to small businesses." [Emphasis added]

May 14, 2009:

"The House of Representatives has no intention of taking up consumer product safety legislation this year so a legislative fix would be very slow in coming. Senator Durbin is working to make sure that the Senate speedily confirms President Obama’s nominees for the CPSC, Inez Tenenbaum and Robert Adler, so that the CPSC is responsive to the concerns that you and other small business owners have shared."

Straight from the horse's mouth. Can't add anything more to that.

To Woodland Magic Imports, my heart goes out to you. I wish you well and express my deepest regret for the government-induced dashing of your dreams.

CPSIA Video Blog: Tracking Labels and "Reasonable Judgment"

In this video, I discuss the recent Tracking Labels guidance and its use of terms like "reasonable judgment" and "good faith efforts". No one is quite sure what these terms mean precisely, creating doubts in the marketplace on how to make those difficult "gray area" decisions. This ambiguity is "par for the course" with the CPSIA and has kindled a compliance competition among retailers, something I call Regulatory Compliance Exuberance. An example of this is TRU's announcement that it will be enforcing a 100 ppm lead substrate limit as of January 1, 2010, almost two years before the CPSC even has to consider such a limit. We have seen at least two retailers demanding tracking labels on merchandise made before August 14, too. Ouch. . . .

In addition, the CPSC left its enforcement authority open-ended by declining to define these terms. In other words, the rules seem to permit second guessing of manufacturers, likely in the context of a recall (a failure). Are they trying to incentivize a good decision-making process, or are they simply waiting to punish bad outcomes? Can you ever be on "safe ground" under the guidance?

Friday, August 21, 2009

CPSIA - Avery-Dennison Volunteers to Collect a CPSIA Tax

When I was the only representative of an operating company to testify before the CPSC Tracking Labels panel on May 12, I warned that the Section 103 requirements would turn Learning Resources into a "tracking labels company", as opposed to our current role as a developer and marketer of educational materials. I predicted that we would need a full-time label staff, considerable extra expense on labeling and testing and a brand new tracking labels software application. I explained that the tracking labels provision cannot be implemented without considerable data collection and retention. As my recent video blog confirms, the CPSC has ambitious expectations for everyone's data retention. By "ambitious", I mean "total, complete and permanent" and by "everyone", I mean "everyone". No relief was offered, IMHO.

[Ironically, I shared the podium that day with a tracking labels software maker who openly pandered for business during his "testimony", going so far as to assert that he was personally so concerned about the "safety" of his granddaughter's earrings that he would prefer them marred by an obvious tracking label than take the risk of not knowing their "co-hort" information. This remark was greeted by widespread snickering in the room.]

Soooo, how crazy am I? Avery-Dennison answered this question recently with their exciting new software/hardware solution that you can buy to label your goods to comply with Section 103 and to retain your production data. I am going to guess here . . . but I think this solution will cost you some money and may need you to add to your staff . . . . Like any ambitious company attempting to take advantage of ridiculous government rules, A-D will very likely (certainly?) charge by the piece, thus collecting a tax on each piece you sell from now on. [Anyone recall the time when Microsoft openly pondered charging a small fee for each email sent using its software?] This is nothing more than an "inefficient tax" - in other words, a government rule causes a market inefficiency solved by paying a fee to an enterprising third party, not the government. This type of inefficient tax is common in quota situations (you buy quotas from soneone who has them, rather than paying the government for the right - have you ever heard of "cap-and-trade"?). In this case, A-D and other companies stepped forward to collect the tax and deploy it for the benefit of their shareholders and employees. The only losers - you and your customers.

Does an inefficient tax benefit society? Taxes tend to depress economic activity by raising costs and either depressing earnings (reducing capital growth for future investment) or causing prices to rise (reducing demand). This additional cost is not accretive to society unless it is less than the cost of the ills "eliminated" by the new rule. Hey, I know all roads lead to Rome - the question remains "How much should we citizens be willing to pay for tracking labels?"

If I put on my consumer hat, I think I would be willing to pay zero for tracking labels for most things. First of all, as a consumer I have had virtually no experience with recalls other than cars (and those items are already tracked). Most of the items I buy are either consumed (they are gone now) or are too low in value to be worth tracking. I say this because if everything was tracked, I would have to pay for the effort to implement tracking on everything I buy. I happen to believe that few if any of my low-value posssessions will ever be recalled, thus I do not want to pay for this service (it's a waste of my money). If an item I possess is recalled and is of low value, I am better off (upfront) agreeing to discard it when in doubt than paying for this detection system that I don't expect to ever use. In fact, I incur costs even trying to figure out if an item is subject to recall. This is one of the points I have made repeatedly about resale shops - it is simply too expensive for them to check every piece against the CPSC website. That requirement is completely absurd and unrealistic, and likewise you aren't going to do deep research on an old item that you have used for 18 months and cost you $12. You are going to toss it or forget about it.

The only exception I can think of is for high value items or durable items that present particular known dangers (high value items intended for the use of infants or toddlers, a very vulnerable class of consumer). Since it is expensive to throw away a crib or playpen, I think those items should be marked.

With this analysis in mind, you can perhaps understand why I view the "opportunity" to use A-D's system as nothing more than a private tax being collected by a small number of companies at the pleasure of the Federal government. Calling it anything else is to obscure the reality of the situation.

The tracking labels fiasco is a good "poster child" for the CPSIA problems. The new rule has completely distorted and redefined the public debate. Lost in the shuffle is the point that the value of tracking labels is questionable at best. This point is not relevant in the eyes of the CPSC since the law was passed by (our all-knowing) Congress; the agency sees their job as "vigorously" enforcing the CPSIA. Sadly, they are right, the CPSIA is the law of the land, even if it is ridiculous, and the CPSC does not make the law. Since the CPSIA is now law, making a rational argument against it seems somehow off point. That's unfortunate. There was a time (two years ago, for instance) when I naively thought the government would listen to you and that our legal system was rational, more or less. Today, I find myself doubting this conclusion on a daily basis. Most frustrating, I find that I have lost ANY confidence in my ability as a citizen to get our government to listen. They made up their mind and moved on. [This is not true for everyone in government - we have the sympathetic ear of a minority of members of Congress but unfortunately, in today's Congress, it doesn't matter what anyone thinks other than about six people. . . and they don't give a darn about the problems discussed in this blog.] This is how we end up with bad rules like Section 103 and find that we can't do anything about it. That's not right, but that's how Mr. Waxman and Ms. Pelosi want it these days.

We can only hope that America will wake up from its fog soon . . . before too much damage is done.

Thursday, August 20, 2009

CPSIA - Gov. John Engler of NAM Targets CPSIA

John Engler, President of the National Association of Manufacturers, published an Op-Ed in the most recent issue of Industry Week Magazine.

Wednesday, August 19, 2009

CPSIA - Finally . . . Some Good News About Safety

GREAT NEWS! Apple is apparently "looking into" the issue of exploding iPods and iTouches after the EU gave them a poke. Boy, is that reassuring! The CPSC apparently has 800 pages of documents in its files about exploding Apple music devices. The CPSC, however, was so busy looking into whether ballpoint pens and rhinestones are always lead-free, approving the informal recall of Potato Clocks, okaying Palladium, Ruthenium and recycled nuclear fuel rods for use in children's products, etc. that it didn't have time to focus on exploding iPods. Understandable. Good thing the EU has some time on its hands. I certainly look forward to hearing more about how Apple's "look-see" is going. Obviously, this is no emergency requiring "vigorous enforcement" like the CPSIA.

Balance and equity, those are hallmarks of the new law and the new CPSC. I can't wait for the CPSC to ramp up their port inspections - gotta stop those dangerous rhinestones at the border. Apple's got that iPod thing in its sights and will probably send the agency a letter about it sometime, so it's "all systems go" for the CPSC to pursue the "real" safety issues like lead substrates testing and tracking labels . . . .

CPSIA - Tristan Benz Has An Important Question

Tristan Benz replied to my video blog with a video of her own.

In her video, Tristan makes a few simple points: (a) she's confused and feels that the CPSC has not made clear how she is supposed to run her business while they attempt to figure out how to implement the new law, (b) she's exhausted by having to read endless lengthy documents, seemingly a new one every day, and (c) she asks when the nightmare for Small Business will end. She says she is at the point of just giving up. The one thing she doesn't mention is that her hair barrettes are perfectly safe, as any idiot could tell you (or the CPSC). Nonetheless, the CPSIA is dominating her business life.

My response, in reverse order:

1. I am a natural optimist but this situation is testing my basic sense of the order of the universe. Until I see a real sign of commitment by Congress to address real issues in a sensible way, I cannot say I believe change will come. These days, I am from the "Show Me" State.

Don't hold your breath waiting for a stay or any other sign of recognition of the many problems by the CPSC. I am told they "can't" move in this direction because the leadership is "new" and must kowtow to Congress and pay homage to the law for now. That's a copout, of course.

There are rumors of a House hearing in early September. I have heard these rumors before, and will believe it when I can see it happening on C-SPAN. I have heard rumors of an amendment bill being drafted in the Senate - put it in the same category (believe it when you see it and have read it). I have heard that a number of Democrats are "quite concerned" but their public statements inspire ZERO confidence in me. [Senator Klobuchar, will you PLEASE stop referring to the little boy who swallowed a lead bangle?! We get it. . . .] Likewise the CPSC says they want to have "open dialogue" but their policy releases suggest that they are nodding off while we "dialogue". It's not just Congress that's deaf (compare the Tracking Labels Guidance to my testimony on May 12 or to my comment letter, for instance).

When somebody in the government SHOWS ME their commitment, I will become a believer. Right now, I am simply trying to be a survivor.

2. You are completely justified to be exhausted. I have heard this complaint from many other law-abiding company managers, who continue to believe they must immediately read and attempt to master each 50+ page entry in the deluge of documents from the CPSC. This is yet another sign of either the CPSC's utter insensitivity to the practicality of its prescriptions or its total obliviousness to the fate of businesses under the new regulatory regime. I personally think the deluge continues out of regulatory momentum and a sense of task, rather than any clear vision as to how to properly or fairly administer the implementation. I wish the CPSC could walk in our shoes for a few days. They live on another planet.

It's worth noting that our businesses do not exist in the a vacuum. Much of our day is spent trying to talk customers off a ledge on this awful law. None of this activity contributes to running a healthy and successful business. It's simply a drain of time, money and lots of energy, all of which could be much more effectively deployed in other aspects of our business. It goes without saying that NONE of this contributes to safety either, just bureaucracy. The inundation from customers over the CPSIA is completely draining, too.

3. I can practically prove that there is no way to run a business under the current evolving regulatory regime. I have been blogging, testifying, writing, "dialoguing", pleading, emailing, screaming, etc. for months and months to no avail. The CPSC's implementation documents, as they spew forth, seem to be drafted in the dark. Their studied indifference to the many impracticalities and problems means that we are left utterly without means. There is no happy answer to your question, and don't hold your breath for that "one pager" from the CPSC. They want you to figure it all out, and don't worry, if they think you are goofing up, they will whack you with a penalty, a recall and perhaps worse.

Tristan's video is a cry of pain. Hey, open dialoguers, if you want anyone to actually believe you care what the business community thinks and is experiencing, it is probably time to SHOW that you are listening.

Tuesday, August 18, 2009

CPSIA - Video Blog on Tracking Labels Guidance

In this video, I analyze the recent CPSC Tracking Labels Guidance to answer the following question: "If I don't label my products (as provided in the guidance) BUT must be able provide all the information specified in Section 103, how is it possible to do that without labels?" The guidance, deemed sensitive to the needs of small business, addresses this question. For my take on the new requirements, please watch below.

CPSIA - The CPSC Will Love This Jewelry

I was walking down the street this weekend and stumbled across a jeweler advertising Palladium. This was too good to be true, of course, because as we all know, this is a CPSC-blessed metal. Palladium, known to be capable of being harvested from nuclear fission, somehow earned the distinction of appearing on the list of CPSC-approved metals not requiring lead testing under the CPSIA.

Ever curious, I entered the store to see their stash of Palladium. I wanted to see what super-safe looks like. The two employees seemed mystified about my interest and after consultation among themselves, decided that there was only one piece of Palladium jewelry in the store. The earrings are shown here, fittingly beside a microscope. No doubt the dutiful store employees were carefully examining the trinkets for possible lead contamination. These earrings have stones in them, and luckily, the stones were ALSO on a list approved by the CPSC. No "dangerous" rhinestones, crystals or glass beads in this treasure, no - the earrings featured super-safe sapphires. Imagine my relief and joy!
For those used to spending $12.95 for similar earrings at Claire's Boutique, these baubles may seem a bit pricey. Okay, expensive . . . but safe. Actually, I am not entirely sure how expensive they are. The store employees told me that the price list for them was $1375 BUT they were certain the price was . . . low. No one was quite sure how to price the rare Palladium. Let's figure $2,000 just for kicks.
Remember, no price is too high for safety . . . . I am sure this thought will bring us comfort as our businesses crater.

Saturday, August 15, 2009

CPSIA - AAFA Op-Ed in Roll Call on Anniversary of CPSIA

Paper Is the Right Choice for Clothes and Shoes: Marking One Year of the CPSIA

Aug. 14, 2009, 9:52 a.m.
By Kevin Burke
Special to Roll Call

On Friday, we are marking the one-year anniversary of the Consumer Product Safety Improvement Act, landmark legislation that provided needed resources to the Consumer Product Safety Commission to improve consumer product safety. We are also commemorating the second of three phase-in dates for reductions in lead standards for children’s products.

As tradition holds, the first anniversary gift is paper. For our anniversary gift, Congress should consider giving the producers of children’s clothing and shoes a thoughtful piece of paper: legislation allowing the U.S. apparel and footwear industry the opportunity to continue making safe clothing and shoes.

The CPSIA was an effort to adapt consumer product safety to the changing manufacturing landscape. While well-intentioned, the CPSIA has unduly burdened businesses by shifting focus away from risk toward legal compliance. As a result, companies that manufacture and sell safe products have been forced to shut down.

The legislation went far beyond its intended purpose of keeping unsafe and dangerous toys off store shelves by creating a “guilty until proven innocent” compliance environment — even for products that have always been safe. As a result, manufacturers of children’s products are spending tremendous resources in duplicative testing of their products simply to comply with the legislation. These extra costs are doing little to improve public health or provide safety, and they are adding enormous pressures to companies already scrambling for ways to cope with the economic downturn.

The U.S. apparel and footwear industry has been a victim in this unfortunate debate that pits compliance against safety. We believe we have a strong safety record. While any recall is one too many, the amount of recalls in our industry in 2008 equaled less than 0.0082 percent of total merchandise sold. To give you an idea of that figure: If a football player were to stand at one end of a football field and run 0.0082 percent of the way to the other goal line, he would travel only a small fraction of an inch.

For us, product safety is engineered into clothing and shoes from the start. That is why we need strong and clear product safety rules that can be communicated and understood up and down the supply chain. However, the CPSIA’s rigid parameters have eliminated key “flexibility” and “risk assessment” tools that are needed for the product safety system to work efficiently. And with some rules implemented retroactively or being announced only a few days before they take effect, the system falls apart.

We will always work with the CPSC and consumer interest groups to determine what, if any, product safety problems exist in the industry and how to best rectify them. Congress should encourage this cooperative environment because it alleviates many of the current burdens the CPSIA imposes on industry — burdens that do not improve consumer safety. This transparent process creates a risk-based, common-sense product safety regulatory network that is agreeable to all stakeholders.

The current regulatory framework has made even the most low-hanging fruit nearly unreachable. When the legislation first passed, our industry began the process of seeking out a rule exempting fabric and textiles from the lead standard because the materials are inherently lead-free. Due to strict statutory language, the tedious process involved hearings, comments, thousands of test reports and several meetings. The final rule came out on Aug. 7, almost one year since the law was enacted. In the meantime, the industry has spent millions of dollars to demonstrate what it already knows — your plain white cotton T-shirt does not have lead in it.

Other exemption requests posed by our industry and others have not been so successful. Crystals and rhinestones on children’s clothing, shoes, princess costumes, dance uniforms, cell phones, jewelry, accessories and eyeglasses are now banned hazardous substances despite a CPSC staff determination that this “bling” does not pose a health risk to children. Furthermore, data shows crystals and rhinestones would leach less lead than some jewelry that is compliant with the strictest CPSIA lead standard that goes in effect two years from now. However, as new CPSC Chairwoman Inez Tenenbaum stated, “A decision to grant the exclusion by using compliant metal jewelry as the baseline for assessing the acceptable level of exposure will reintroduce risk analysis back into consideration. ... Such an interpretation of the exclusion section of the CPSIA appears to be in direct conflict with the statutory language, which does not allow for the consideration of risk.”

Last week, the Senate moved quickly in confirming the two remaining nominees to complete the slate of commissioners at the CPSC. For too long our nation’s product safety regulatory system had been underserved because of long-standing vacancies in vital leadership positions. Fortunately, the recent batch of confirmation hearings has renewed the discussion aimed at restoring common sense to our product safety rules and regulations. Through the appropriations process, chronic underfunding issues are swiftly being resolved as well.

Now that we have five commissioners providing leadership at the CPSC, the commissioners should begin following through on commitments made during confirmation hearings to quickly issue comprehensive and unmistakable guidance to fashion designers, manufacturers and retailers to resolve the immense confusion that has held our industry back.

Congress has an important role to play as well. Hearings are urgently needed to provide all stakeholders an opportunity to document the early successes and failures of the CPSIA. More importantly, with the one-year anniversary behind them, key Members of Congress should take a hard look at the legislation to see what fixes can be made — technical or otherwise — that will make this law work better and as intended. In answer to Chairwoman Tenenbaum’s appeal last week, one urgently needed legislative clarification would provide the CPSC with needed tools to grant common-sense exemptions based on risk.

The Consumer Product Safety Improvement Act was a historic piece of legislation that should have been lauded but instead has become known as the law of unintended consequences. For our one-year anniversary, Congress should give American consumers and businesses a piece of paper that makes it easier to buy and sell safe and compliant clothes and shoes.

Kevin Burke is president and CEO of the American Apparel & Footwear Association.

CPSIA - AP Story Features April Rally Committee Members

New lead limits big concern for small businesses


The Associated Press
9:31 p.m. Thursday, August 13, 2009

WASHINGTON — Tighter limits on the amount of lead the government allows in children's products and a requirement for new tracking labels are stirring fear among small business owners, already hurting in a tough economy.

Starting Friday, the new limits and labels are required as part of a consumer product safety law passed by Congress last summer in the wake of dozens of recalls of lead-tainted toys.

Consumer advocates hailed the measures. But some small businesses, like American Educational Products in Fort Collins, Colo. — it sells classroom teaching aids like flash cards, animal models, globes and relief maps — say the testing and labeling costs are crippling to their operations even though their products are safe. They want the law amended to exempt products that present little or no risk to young children.

"The challenge as a small business is that I cannot do it all (the testing) immediately," said Michael Warring, president of AMEP. "I would have to spend a full year of revenue to test every product I sell."

Warring recently laid off four of his 70 employees. In his 15 years with AMEP, he has not had one safety recall or complaint about lead.

Even so, Warring says he is required to test samplings of all products he makes and sells for young children, which he said costs about $2,000 per product. The tracking labels will add another cost, he says, since they must be a permanent marking on each product.

The new chairman of the Consumer Product Safety Commission, Inez Tenenbaum, has tried to reassure businesses that the agency will work with them as it enforces the new requirements.

"We're going to take into account situations where businesses are making the right efforts to manufacture products safer," said her chief spokesman, Scott Wolfson. "We are going to continue to put out new rules and new guidance to help companies in that effort."

The law, known as CPSIA, sets strict standards for lead and chemicals called phthalates when used in toys and products for children 12 and under. Lead can cause irreversible brain damage,
and some studies have linked phthalates to reproductive problems.

The bill was signed into law one year ago. Since then, CPSC rules have been trickling out — explaining who must comply, and how, as well as announcements about delays in enforcement for certain industries.

But the guidance from the agency has been confusing and belated, says Jolie Fay, a mother who runs a home crafts business — Skipping Hippos — making children's jackets and fleece ponchos out of her basement in Portland, Ore.

"My products are mostly fabric, and they're safe," Fay said. "Mom-home sewers are being pulled into this law to meet the same standards as big companies like Fisher-Price. It's not right."

Fay's orders began drying up in February, when the lead limits first became effective. On Friday, the limits tighten further, with the amount of lead allowed in kids' products decreasing to 300 parts per million and 90 ppm for lead paint.

Fay had all the fabrics and buttons tested on her clothing, and she says there was no lead. Still, she says, boutiques stopped calling in orders, too worried that they might lose inventory if a test later turned up positive for lead.

CPSC has issued guidance that natural fabrics like cotton and silk are exempt from the rules, but zippers, buttons and snaps are not.

Wolfson says the agency is working hard to hear the concerns of small business. But, he added, they have a "responsibility to know their obligations and comply with these new safety requirements starting on Friday."

CPSIA - Washington Times Editorial Bashes CPSIA

Friday, August 14, 2009

EDITORIAL: No more rhinestone cowboys

New regulations taking effect today make an awful new law even worse. Government is putting huge new burdens on retailers and manufacturers already reeling from a bad economy.

Treasured children's books published before 1985 already have been removed by the thousands from library shelves and second-hand stores. Also suddenly illegal are many plastics used in children's apparel (such as diapers) and toys. Rhinestones are definitely out, by specific bureaucratic edict. So are lots of children's bikes and all-terrain vehicles. Even clothing zippers are in peril.

Charities are taking it on the chin, with the Salvation Army alone estimating that it will be forced to destroy $100 million of inventory and significantly cut back some of its social services.

The culprit in all this mess is the 2008 Consumer Product Safety and Improvement Act, which went into effect in February and which today becomes even more stringent. In February, the law put a limit of 600 parts per million -- an absurdly low threshold -- of lead in any product intended for use by children. It also banned certain phthalates, which are chemicals used to soften various plastics. Today, the lead limit drops even further, to 300 parts per million.

Also beginning today, every children's product must carry a "tracking label" identifying the name, location and date of its manufacture. Compliance costs are so exorbitant that one respected manufacturer, Chairman Rick Woldenberg of Learning Resources, Inc., wrote the Consumer Product Safety Commission, "This provision alone may bankrupt companies and wipe out entire product lines, all without improving children's product safety."

Yet the law makes no distinctions between lead or phthalates that children have any likelihood of putting in their mouths and those that pose no realistic risk at all.

"Kids aren't licking the bottom of their shoes or chewing their youth-ATV battery terminals," said Quin Dodd, former chief of staff of the Consumer Product Safety Commission and a top critic of the bill. He notes that phthalates are what allow most toddlers' "booties" to have their anti-slippage qualities -- so banning them from those products is likely to cause more accidents from children's falls than it could possibly save from the risk of ingestion.

The phthalates involved probably aren't even dangerous. The Consumer Product Safety Commission itself, the U.S. Surgeon General and the federal Food and Drug Administration have determined that their actual risks are minimal or nonexistent.

Worse still is that the law actually makes violations a felony, punishable by up to five years in prison. Other provisions serve as open invitations to utterly speculative, jackpot-seeking lawsuits of the sort that can put even innocent companies, and their workers, out of business.

For a year, the Manhattan Institute's Walter Olson has been compiling horror stories about the Consumer Product Safety and Improvement Act at his Overlawyered blog. Those stories -- about what Mr. Olson describes as an "absolutist, not to say fanatical" law -- seem to be endless. Yet an out-of-touch Congress continues to ignore the horrible fruits of its handiwork.

Friday, August 14, 2009

CPSIA - Unanswered Tracking Labels Questions ("Clear as Mud")

The recent tracking labels guidance by the CPSC was greeted with relief by some commentators who interpreted it as signaling flexibility and "common sense" implementation of Section 103 of the CPSIA. Is that true? Common sense and flexibility reigns supreme again? At the anniversary of the CPSIA, these are critical questions to answer.


I have tried to make sense of the guidance for several days now. Frankly, this exercise is frustrating as the guidance is vague and misleading in many ways. I have argued at length with lawyers over the "plain" meaning of the guidance and was still left guessing. Some of these questions have a real economic impact on our company.

As with other guidance documents, the tracking labels guidance was written without regard to economics or how business decisions are made. The rationale for this approach is simple - you cannot place a price tag on safety, ergo “it follows” that the CSPC cannot take money into consideration in its interpretation of the new law. There is some basis for the understanding of the CPSIA, as the law took pains to eliminate money as a consideration (for example, look at the definition of “technological feasibility” in Section 101(d) which will bite us in two years).

This is naive, of course. Aside from raising the likelihood that their recommendations will be impractical or even impossible to achieve, the CPSC is taking a chance that they are creating remarkably negative economic incentives that will drive companies away from the children's market. Of course, if product availability declines, so will recalls, which in turn will make the CPSC look good. Your kids won’t have the same choices in warm clothing and your school won’t have access to enough good school supplies, but the regulators will feel the warm glow of a job well done!

I believe the "relief" granted by the tracking labels guidance, particularly for small businesses, is a mirage. It seems apparent that the intention is to impose the Section 103 requirements on one and all. As the guidance says, "The Commission believes that the purpose of Section 103(a) is not to impose significant additional burdens on manufacturers who already make available the required information for their products, but to bring those who do not up to a higher standard." In other words, the CPSC conjured up the notion that somebody was already doing this in the children's product market to justify their guidance. While this may be true in limited cases (I have no idea but likewise have never seen it myself), it is hardly a common practice, much less driven by market demand. [Full disclosure: we have for many years put serial numbers on a small number of high value electronic products to help us diagnose quality problems if they occur.] The imaginary companies providing this information are now put forth as a justification for getting the rest of us up to the "higher standard". In the case of our company, that higher standard is to address the “problem” of one recall of 130 pieces (all returned) in 25 years. Oh yes, I buy the argument.

I also believe the guidance has been tailored to relieve any future constraints on the behavior of the CPSC, leaving it open to put on its jackboots if political winds shift in that direction. Clear and binding limits on their regulatory discretion cannot be found in the guidance. The lack of constraint on these regulators is truly frightening to business people. Congress wants you to think our fear is good for consumers. I think you might understand the problem differently if you were on the butt end of that one. What if your local traffic cops had the same coercive power over you? Would you drive more – or less?

In order to make clear the nature of my concerns, I have prepared a list of "unanswered questions" for your consideration. It's not a short list. Rather than provide a shorter list and provide the full list upon request, I have decided to publish them in full below. I apologize for a very long post (even for me). I have organized them by category and italicized each question that I consider critical. I hope you find this useful.

The CPSC must not allow this situation to persist. While I have repeatedly expressed sympathy for the CPSC, I feel likewise that the CPSC is not adequately resisting this very misguided law, and is moving forward with a bit more enthusiasm than is appropriate. The guidance and other recent emissions from the CPSC read like something out of Mr. Waxman’s marketing department. While the new Chairman has stated her intention to “vigorously” enforce the new law as written, her job description does not extend to providing justifications for laws she did not write. Just because the laws are on the books doesn’t mean they make sense. The CPSC knows this, too. Notably, the CPSC has had the power to impose tracking labels for decades yet consistently declined to do so except in specific cases. To pander to Congress with trumped up justifications for this law is to reset safety administration to meet current political preference - and that's wrong. Lillian Hellman said it best: "I cannot and will not cut my conscience to fit this year's fashions." This is not naïveté on my part – it IS wrong.

Readers: If you think of other relevant unanswered questions, please leave them as a comment to this blogpost. Thank you!

My "unanswered questions":


a. In setting penalties or defining the scope of recalls, how will the CPSC balance the consequences of imperfect Section 103 compliance and the cost of perfect Section 103 compliance? In other words, if the interest of the public is met with an appropriately-defined recall and the reasonable expenses of such recall is met by a manufacturer, will a technical or inconsequential violation of Section 103 be the subject of a significant penalty or other remedies?

b. The guidance states that the CPSC will initially focus on compliance with Section 103 in the context of recalls. I interpret this to mean that the CPSC will NOT presently take action on labels EXCEPT in the circumstances of a recall. Is this correct? If not, what does this policy signify? How will manufacturers know when the enforcement policy changes? Will it require a vote of the Commission?

c. If the Guidance means that enforcement will only take place when a product is recalled, does that mean that the agency will not investigate tracking label issues beyond the recalled products once it becomes aware of a violation on a recalled item?

d. How will the agency deal with reports of violations of Section 103 in the absence of a recall? After all, these are presumably violations of law. Will the agency use the new consumer database to find offenders? Does the guidance mean that the CPSC will NOT take preemptive action upon actual knowledge of problems other than in the context of a recall? [This question could be extended to the CPSC's other partial enforcement stays, such as with decorative stones. If a report is made of rhinestones in jeans for nine year olds, clearly a violation of Federal law but outside the stated enforcement focus of the agency, will the agency tell the person making the report that they will not bring the offender to account? What if the person making the report is a “whistleblower” – will the whistleblower be refused for exposing this “crime”? Will the CPSC intervene in opposition if a State AG takes action to enforce the statute against such an "offender" for a violation that is covered by its commitment to not enforce?]]

e. How will the agency coordinate its policies with the U.S. Customs Service? In other words, if importers bring in product in compliance with the CPSC's stated enforcement policy, can Customs stop the product anyhow? Who will make these decisions? How will/can the CPSC prevent this activity by Customs? Will Customs set its own priorities for enforcement in its responsibilities to guard the borders from “unsafe” products? Likewise, what steps will the CPSC take to bring State AGs in line with its enforcement policy? Does the CPSC contemplate hosting a meeting of State AG offices to create this kind of enforcement alignment?

f. In exercising "discretion" in assessing penalties for violations of Section 103, the guidance specifically cites that "inadvertent omission" is "unlikely" to be assessed penalties. What does "inadvertent" mean? Pure error? Pure error combined with good intentions? Pure error made by reasonable people acting with due caution? Reasoned and intentional omission based on an erroneous understanding of the law, CPSC enforcement policy or both? Will "inadvertent" omission of essential information also be considered a "forgivable" infraction? How will the agency handle apparently widespread "inadvertent" omissions by a single company?

g. What is the boundary between respecting "good faith efforts" and determining what is and is not an "inadvertent" omission? If a manufacturer can establish "good faith efforts" or the use of "reasonable judgment", will ALL errors be considered "inadvertent"? In other words, has the CPSC established a safe harbor where good behavior will be accorded preferential penalty treatment?

h. Does the CPSC intend to moderate penalties based on the “no harm, no foul” principle? Or, if the agency is concentrating on penalizing only in the context of a recall, won’t the necessary outcome be that every violation will be deemed serious since it may appear that the absence of tracking labels somehow makes the recall less-than-optimal? Will the company subject to recall be entitled to any defenses? Will the failure to properly or effectively label products be considered an irremediable offense in a recall context, as it follows logically that without tracking labels, any subsequent recall will be "less effective" than a recall conducted with proper tracking labels? If that's the case, why not set the penalties right now? [Please note that while the presence of recalled items remaining in the marketplace presents a theoretical risk of injury, in many cases the incidence of injuries associated with recalled products is basically zero, suggesting that a negligible impact from the tiny percentage of unreturned product that might otherwise have been returned. Of course, in the case of certain hazards, it is certainly possible that the calculation of the probability of injury is materially greater – these items are the ones which are the best and most appropriate objects of tracking label legislation.]

i. Will the manufacturer's ability to mitigate consequences, perhaps by expanding a recall, be considered by the CPSC in assessing the seriousness of a tracking labels problem?? Is a manufacturer ever empowered to make an economic judgment about the value of compliance, or is that always an intentional violation of Section 103 (felony)?

j. If a manufacturer discovers that it has made a violation of the Section 103 requirements, must it file a Section 15(b) report? If it does turn itself in, will it get penalized? If it gets penalized as a consequence of turning itself in, why would anyone turn themselves in?

k. Must companies provide tracking labels information if the CPSC says they won’t enforce? If they are never subject to recall (say the maker of plain white cotton t-shirts), why should they expend the money to label when the CPSC states they will not enforce except in the context of a recall? Then again, this is an intentional violation of law, subject to severe penalties under the CPSIA. If then it follows that everyone must always fully comply with the law, regardless of the CPSC’s statement of its enforcement discretion, isn’t it true that this guidance lets no one off the hook?

"Reasonable Judgment"/"Best Judgment"/"Good Faith Efforts" of Manufacturers

a. How will the CPSC Enforcement Staff determine if a manufacturer exercised "reasonable judgment"?

b. How is "reasonable judgment" different from "business judgment"?

c. Does "reasonable judgment" include ANY concepts of economic rationality?

d. What constitutes a "good faith effort" to comply? Will errors discount claims of good faith efforts?

e. Will concepts of the imputed knowledge of a reasonable man using reasonable care be incorporated into the definition of "reasonable judgment" or "good faith efforts"?

f. Are there indicia of "good faith efforts"? For instance, does the presence of full-time quality control staff satisfy this requirement? Supply chain agreements? Random inspections? Routine testing? Database of complaints? Review of current product recalls? Record of product modification? Employment of outside counsel? Participation in industry activities relating to safety (i.e., webinars, seminars, industry meetings, etc.)? Participation in COC/ICTI-CARE programs on corporate conduct? Compliance with mass market retailer requirements?

g. What recordkeeping requirements are implied in the need to prove up "good faith efforts" or "reasonable judgment"? If a manufacturer doesn't have the records to support their claims, will it be impossible to demonstrate good faith or reasonable judgment? In other words, is this a factual inquiry based on PROCESS or OUTCOME? If the answer is "outcome", how can any manufacturer defend their judgment if the outcome is deemed "wrong"?

h. Does the CPSC intend to respect the judgment of companies in determining whether it is impractical to mark a product? If not, how can a manufacturer feel secure in its decision-making without obtaining the prior approval of the CPSC?

i. The guidance states that the CPSC "expects that manufacturers will use their best judgment to develop markings that best suit their business and product." What are the limits to this "discretion"? How far can they exercise that discretion and what are the lines that they cannot cross? If Section 103 defines the limits, is the discretion simply limited to HOW the information is provided, not whether it is supplied? [That appears to be a theme of the guidance document.] If manufacturers have this "discretion", is the CPSC giving up the right to second guess these choices?

August 14

a. Will the date of manufacture of goods determine whether items require the Section 103 information?

b. If the date of manufacture is not known, as might be the case in imported products sourced from a trading company, would a manufacturer be justified in using a date prior to August based on the assertion of its source?

Private Label Goods

a. What are the obligations of component manufacturers on labeling? If a product is known to be a component in another product, what are the labeling obligations? Whose obligations are they? What if the product is only occasionally used as a component, or is known to be used as a component without the permission of the manufacturer? Does that affect the answer on labeling?

b. If a product is a "blank" for later downstream modification, what are the labeling requirements?

c. If a domestic company, importing from China, provides or manufactures private label goods for another domestic company, which company name should appear on the product? The guidance speaks only about the clear question of a manufacturer or an importer, but does not address the case of an intermediary between the factory and the company branding the imported product. I believe the logic of the guidance would suggest that the company branding the company should be named on the product, NOT the confidential intermediary source. This is a critical, if not THE critical, question for many business dependent on the confidentiality of their sources. Would the CPSC be willing to define "importer" to be the final branding reseller of private label imported goods to address this issue?

d. What are a manufacturer's obligations if it becomes aware of labeling problems downstream, such as the omission of labeling information required under the guidance by the downstream supplier?

Commodities/Unbranded Products

a. The tracking labels guidance seems to ban unbranded products. Is that the intention?

b. If you are a marketer or manufacturer of commodities, such as plain painted bar magnets, must you label your products? What if you sell only through dealers, and for those dealers, the confidentiality of the source is considered a commercial necessity? Can the obligation to label be transferred as a matter of contract between the supplier and the dealer, so that the distributor/dealer takes on responsibility for labeling the product? Will the CPSC respect contractual transfers of responsibility under Section 103?

c. We market commodities that have an appearance demanded by the market. Does the new guidance require that we mark these commodities to distinguish sources? What if marking the product makes it unmarketable? What if it costs so much to mark it that it becomes unprofitable? Is it the intention of the CPSC to force manufacturers in that situation to choose between making the product and labeling it in accordance with Section 103? What if the design of the commodity has educational or other tertiary value that would be diminished by markings or change in design? What if no similar product has ever been recalled in the records of the CPSC?

d. Many commodities, particularly those used in the educational business, come from industries which do not cater to children and may not be aware of the CPSIA. For instance, aluminum foil is used widely in science kits but is clearly produced for the food industry and for household use. Products like this will not be designed to comply with the CPSIA and given the low volume of sales in our specialty market, are unlikely to cater to our need to comply with the CPSIA. If the item was not intended for children by the manufacturer, will the product therefore be exempt from the labeling requirements? Who makes this determination?

Exempt Products under Section 101

a. Are manufacturers exempt from the Section 101 lead standards still subject to Section 103 labeling requirements? Many such items have earned these exemptions by submitting proof of their non-toxicity. Must they also incur the costs of labeling despite the official acceptance of their products’ safety? If not, this would presumably mean that the expectation is that ALL consumer products designed or intended for children twelve years of age or younger will require tracking labels, and further that there are NO exceptions possible. The CPSIA notably does not provide an exemption process for products subject to Section 103.

Small Business Exceptions

a. If Small Businesses do not have to create "lot, batch or run number" systems, what are the "reasonable practices" required of such companies to "keep records of components used in their products"? How is this different than creating a system to track lots? .

b. If Small Businesses do not have to create "lot, batch or run number" systems, isn't that inconsistent with a requirement to put a date on the products? Most small companies, if not all small companies, have a one-to-one relationship between date of production and lots. If you number a lot, it is effectively a batch number. If there is no obligation to create a batch numbering system, what "common sense relief" is the guidance offering to small manufacturers with this requirement?

c. Further to the last point, if you must be able to identify each piece back to its production run, how does the CPSC believe this will be done in the absence of a batch numbering system (dates or whatever)? Isn't this an explicit requirement to create a comprehensive data collection system documenting batches and relating them to each unit sold? If so, how does this guidance provide ANY relief to ANYONE? If not, please clarify what steps you believe have been eliminated for small businesses ill-equipped to comply with this rule?

d. Federal law (The Small Business Act) defines a "small business" as one with 500 or fewer employees (as a general rule). If we have 500 or fewer employees in our company, are we entitled to rely on the exception granted to "small volume manufacturers"? Would larger companies also be entitled to rely on this exemption under certain circumstances? If so, please describe those circumstances?

e. Section 103 of the CPSIA requires that the date of manufacture be "ascertainable" by a consumer. If small companies do not have an obligation to create lot records or lot markings, how are they supposed to meet this requirement? Is the date requirement considered part of the lot marking rules under your guidance?

f. You have stated that "Although Section 103(a) does not require manufacturers that do not use lot, batch or run numbers to create such a system, the Commission believes that compliance with this Section generally will require that manufacturers have in place a reasonable means to ascertain detailed production information, including the means to distinguish products made from different factories, made with different components, at different times or have other material differences that make the product non-identical from previous products." What are examples of "reasonable means" that fall short of a new system to retain lot or batch records? The guidance seems to require that a system be created to retain detailed records of production runs despite the fact that you have explicitly acknowledged that no new system is required. What exactly is a manufacturer supposed to do to meet this guidance?

g. The guidance states that "The business and recordkeeping practices of peer manufacturers should be considered." We are in an industry comprised almost entirely of private, independently-held companies. How are we supposed to consider the private, confidential practices of competitors? Wouldn't it be a violation of antitrust rules to compare competitive practices with our competitors and possibly align them?

h. In a FAQ aimed at "crafters", the CSPC states: "If someone handed you one of your products sold last year, what would you be able to tell them about the materials used? Keeping your receipts and purchase orders will help you to better know the source of your product and its components and when you began using them. Ask your fellow hand crafters if they have any tips or ideas that can help. . . . Compliance with the new requirements will call on a number of small hand crafters to rethink the way they maintain their records and mark their products." This guidance seems to contradict your instruction that a lot marking system not be developed. Can these statements be reconciled, or is the CPSC speaking out of both sides of its mouth? The clear implication of this guidance is that crafters must be able to prove up components and lot information for individual units in the marketplace. This means that they have not received any relief whatsoever.

i. Again, in a FAQ, the CPSC gives the following Q&A: "Is the information ascertainable if I mark my product and packaging with a code and website address where all the required information can be found? Yes, provided the name of a manufacturer or private labeler is also identified so a consumer without access to the internet can know whom to contact directly to also obtain the required information." Thus, the guidance seems to state that web address is NOT enough and that the safe harbor only exists if there is ALSO a code, presumably identifying the lot. Is this correct?


a. If it is reasonable for bulk vending products to be marked on their shipping case, which would presumably not be "ascertainable" to consumers, can other manufacturers satisfy the requirements of Section 103 by marking the exterior of the shipping carton rather than the product itself? It is worth noting that the largest recall in the history of the United States occurred in the bulk vending industry. If it is acceptable for that industry to mark its shipping cartons rather than its products, why should industries or companies with a strong safety record be held to a higher standard?

b. We understand that the CPSC has been telling “crafters” that if contact information like a web address or phone number is on their product, they will be deemed to have met the requirements of the tracking labels. Can all manufacturers rely on this advice, or just “crafters”? If only certain companies can take that approach, which companies are “in” and which are “out”? Will the agency put out rules so that companies can safely rely on written guidance, rather than rumor? In the marketplace, dealers do not feel comfortable relying on a manufacturer’s assurance that oral guidance has been given to bless their approach to labeling.

c. Will the agency respect the judgment of a company in determining what “ascertainable” means for purposes of Section 103? If the agency will not define “ascertainable” and reserves the right to second guess companies’ exercise of judgment, how do you expect companies to proceed on markings, given multi-level distribution and the demands of dealers for assurance that labeling is compliant? Is it your expectation that we must pay a testing laboratory to give us a certificate blessing our labeling practices? Please note that a precedent for tracking labels is the law on safety labels, which was bright line and clear. The CPSIA tracking labels provision is hardly bright line and clear.

d. Will the agency respect the judgment of companies in determining that certain products fit within the “impractical to mark” guidance? What is the possible liability exposure for a company who makes the “wrong” determination? In other areas of the law, the process involved in making a “business judgment” absolves liability, even if the decision is “wrong”. In this case, the guidance seem to suggest that the CPSC wants to have it both ways, where companies are responsible to make a good decision without specific guidelines but if they make an incorrect judgment, then the CPSC reserves the right to “teach them a lesson” with penalties. What would you advise a company to do under these circumstances? Make products for adults?

e. We make a variety of kits which contain small parts or numerous parts of equal importance. You have given guidance on games which include game boards and small pieces, but have not addressed other kinds of kits. What if the kit is comprised of crayons or pencils? What if the contents are consumables (such as a craft kit comprised of felt, buttons, feathers, and so on)?

f. We sell products that are often taken out of its permanent packaging so that components can be sold separately. We know this happens but do not advertise it as a feature of our product. It is also not our intention that dealers do this, but we know they will do it from time to time. Since we deem the products to be a set to be sold together, we do not believe we must mark every item. To do so would be prohibitively expensive. Your guidance says that if a set is separated and the parts sold separately, then each part must be separately marked. Notably, none of these products have every caused an injury or resulted in a failed test report. What are we supposed to do on marking the components of these sets? If we are obligated to mark the parts, are we also obligated to stop sale and mark components of other products if we become actually aware of one dealer separating the products? If not one dealer, how many? Will we be held to a “reasonable man” standard where we will be subject to imputed knowledge that we in fact do not have? Will the dealer be responsible for these markings?

g. The guidance says that the name of the “manufacturer” or private labeler be “ascertainable” from the marking. The CPSA definition of manufacturer includes both the manufacturer and the importer. Does this mean that the guidance will allow the importer to put its name on the product and leave off the factory identity?

h. The guidance says that the name of the manufacturer must be part of the ascertainable information in the marking, and the definition of manufacturer includes importer. The implication of the guidance is also that private labeler is included in the definition of “manufacturer”. Assuming this is true, is it also therefore true that the location to be placed on the product (city and state) are of the importer, rather than the factory? It is our assumption that this is probably the intention of the guidance. This kind of information is found on many consumer goods, and is also required by EN71 to help consumers find the source of children’s products. If the meaning is that the city and state of the factory is instead required as part of the markings, it will be much more disruptive since this conflicts with the requirements of EN71 as well as U.S. Customs laws on country of origin, and is very uncommon in product markings. Isn’t the purpose of this requirement similar to the advice to include a web address or phone number, to facilitate contacting the source? If so, the city and state requirement is meant to help distinguish between businesses with similar names located in various places around the U.S., rather than to disclose the factory address. This needs clarification.

i. If we discovered a tracking label error in our inventory, is that a reportable "offense" under Section 15(b) requiring a report within 24 hours to the CPSC? Will we have to recall improperly labeled goods after discovery? Will we be penalized later if the item is recalled? Will we be compelled to relabel the goods in our inventory? Send out replacement labels to our dealers? Follow up with them and collect documentation about the proper relabeling of this merchandise in their stores and/or warehouses? [They will charge us for this service.] Will we be required to recall these items to fix the labels? Will you decide these questions based on scale? Based on your investigations?

j. Is it your intention to spot-check tracking labels in the marketplace? Is it your intention to send information requests to children's product companies about tracking labels? Spot or unannounced site inspections? What are our rights if you request this information or show up unannounced at our place of business?

k. Some commentators believe that the Guidance is ambiguous on whether the name of the actual manufacturer (factory) must appear on the package. Since the definition of the manufacturer in the guidance is EITHER the manufacturer or the importer, we interpret this to mean that the identity of the importer will satisfy this requirement. Please confirm. If a consumer calls up to learn the identity of the factory, are we obligated to provide it? This is a critical question – the answer must be “no” or else the confidentiality of sources will be compromised with devastating impact, particularly on small businesses.

l. For an assembled item, is the assembler invariably considered the "manufacturer"? Is this driven by the fact that the date of assembly is considered the relevant date for purposes of lot identification? This would also suggest that if the assembler is the manufacturer for purposes of this regulation, then the manufacturers of the components are NOT the manufacturer. Please confirm.

m. The need to make products in different lots "materially different" or "non-identical" begs many questions. For example, how are we to manage this responsibility for a multi-part kit where the main component is marked but the other items are NOT marked? Will your answer depend on whether there is (or was) a recall? Even more pertinently, will your answer change if there is a recall of an unmarked (not primary) component in the kit? This could happen, for example, if a low value magnet is recalled that appears as a component in many kits. In addition, the guidance requires that we be able to "distinguish products made by different factories". Does this apply to components in a kit? Has the CPSC carefully considered the implications of a positive answer to the foregoing question? Frankly, the business of making kits for kids will become ensnarled in so many gratuitous distinguishing marks (all in the off-chance that a recall might happen) that the products will become utterly uneconomic. Please explain the details of this requirement.

n. If new books are deemed lead-free based on worldwide standards for printing inks today, why do they need tracking labels? Particularly in the case of "ordinary books", what is the tracking label meant to accomplish if effectively the CPSC has acknowledged that the only conceivable safety issue (lead in the ink) is absent by definition?

o. What if it's feasible to mark the product but not its packaging, owing to short runs?

p. What if the code on the packaging does not match the product? What if packaging and products are made separately and are only combined when assembly is completed? What if hand working the packaging either destroys its aesthetics or makes it too expensive to sell?

q. What steps will the CPSC take to find those companies faking tracking labels to gain competitive advantage? How can law-abiding companies rely on a level playing field?

r. When assembling a kit using components without lot markings, how is a manufacturer supposed to maintain sufficient records to satisfy the guidance? Will there ever be an obligation under the guidance to mark these components to identify them to the kit?

s. If I make a product for users over 12 years of age, such as laboratory items, and a dealer catering to schools wants to buy and resell the product, the new dealer may refuse to sell it if we do not provide labels to meet your specification. This is ironic, as we are outside the law given our intent. However the activity of other people, namely our dealers, brings us back into being subject to the law. Is this what you intended? What am I supposed to tell the dealer?

t. The guidance states: “The question of what should be ascertainable is a different question than whether that specific information can be marked on the product or packaging.” Thus, it appears that the CPSC will not permit ANY manufacturers to sell ANY children’s product for which the specified Section 103 information is not “ascertainable”. In other words, if a consumer calls up to inquire about the Section 103 information for any unit of a children’s product made on or after August 14, regardless of whether made by a small lot manufacturer, that information must be available – or less. Correct? Crafters, take note.

I would observe that the free pass given to bulk vendors violates this principle as a consumer will not be able to ascertain the Section 103 information as defined in the guidance. While I don’t object to the bulk vending solution (it’s sensible), I do not think the message is coherent. Hence my “unanswered question”.

u. If the product is deemed appropriate for no tracking labels, how precisely is the Section 103 information supposed to be “ascertainable”? Remember, the rationale for not marking products may equally well exclude the other suggested (and impractical) ways suggested to distinguish products made in different production runs. [Think of a dot of red paint on that beautiful necklace you want to buy for your daughter. Hmmm.] The CPSC should explain that one in detail. I presume magic is not part of the solution.


a. What are our obligations on recordkeeping? The guidance speaks in terms of no need to create a numbering system but also speaks about keeping detailed production data so that the lot for each item may be determined. Without an existing lot numbering system, we have no recordkeeping for components presently. [The absence of that recordkeeping is no indictment of our practices as we have never had need for them in 25 years owing to our many other activities to maintain quality and compliance.]

b. How long must we retain these records? Normal statutes of limitations are three, five and seven years. Recalls can take place years later. Must we retain these records "forever"? Is that fair?

c. For those of us who do not make the Space Shuttle or somehow do business without becoming a Six Sigma company, retaining detailed records on the source and lot designation of components is well-beyond our ability to manage. It is also going to be extremely expensive and potentially of no real value. Yet, your guidance seems to hold us accountable for this information, regardless of these economic issues. Is this what you expect of small companies? Will you stick to this interpretation even if the necessary solution of this dilemma is a massive reduction in our product line, or abandonment of the specialty markets that we currently serve?

Tuesday, August 11, 2009

CPSIA - WSJ Publishes Fifth Editorial Against the CPSIA


AUGUST 11, 2009, 7:31 P.M. ET

Consumer Product Destruction
Congress's lead in toys panic is set to ruin more businesses.

Congress has the power to destroy, and that's precisely what it has done with its needless 2008 panic over lead in toys. More suffering is on the way for thousands of private businesses because Democrats refuse even to acknowledge, much less fix, their mistake.

Last year, Congress whooped through the Consumer Product Safety and Improvement Act to soothe fears about lead paint on toys from China. In its hurry, it imposed draconian lead limits that have ravaged businesses in industries from childrens books to thrift stores to ATVs since the law went into effect in February. This week, the screws are tightening further, as products directed at children under 12 must meet stricter lead standards, and companies face higher penalties for any mistakes. Because the rules are retroactive, toys or other items that are legal to sell on Thursday will be banned on Friday.

And this time Dick Durbin and Henry Waxman won't have a Republican to blame. Last spring, Congressional Democrats pounded the CPSC's Republican Chairman Nancy Nord for the law's failings. In an April letter to Ms. Nord, 28 Senators, including Mr. Durbin, Mark Pryor, Jay Rockefeller and Dianne Feinstein insisted that "Congress provided for agency discretion" and anticipated the CPSC would use that discretion in a way that "would recognize anomalies in implementation."

That was an attempt to dodge blame for the mess Congress created. The problem is that the law itself explicitly bars the CPSC from making judgments on product safety risks when handing down exclusions. In a July decision denying a petition by jewelry makers to exempt crystal and glass beads, new Obama Chairman Inez Tenenbaum cited the same issue that Nancy Nord did. To wit, for the agency to grant an exemption would mean using risk analysis, which is forbidden by the law. Such an interpretation "appears to be in direct conflict with the statutory language," Ms. Tenenbaum wrote.

Jewelry makers now join the legions of other businesses on the hook for millions of dollars in lost sales, inventory or testing costs despite products that pose little to no risk of lead poisoning to children. In the spring, thrift-store operators like Goodwill and the Salvation Army predicted that without regulatory relief they would have to destroy more than $100 million of inventory. Toy stores expected some $600 million in playthings that would have to be trashed and another $2 billion in losses across the industry. Motorcycle and ATV makers predicted total losses and business disruptions around $1 billion. Children's clothing stores have suffered huge losses, with Gymboree losing 40% of its market value overnight after reporting losses related to the House's lead-paint panic.

Eight bills have since been introduced in the House to remedy the problems, only to stall in the ideological quicksand of Mr. Waxman's Energy and Commerce Committee. He has so far failed even to hold hearings. Texas Senator Kay Bailey Hutchinson wants hearings in the Senate, but Democrats are too busy trying to nationalize the health-care industry.

Commissioner Tenenbaum says she favors a "common sense approach" to regulation, but she needs Congress to rewrite the law. Until Congress acts, products that pose no risk to consumers will continue to be recalled and destroyed while businesses struggle with additional costs in a recession.

CPSIA - Something Else . . . Again?

Sometimes I feel the assault never ends. Today is such a day. I just heard about the latest innovation of our very own Congress. The new morsel is the Foreign Manufacturers Legal Accountability Act of 2009 (S. 1606), introduced last week by Senators Whitehouse (D-RI), Sessions (R-AL) and Durbin (D-IL). In this "long awaited" legislation, the three gallant Senators provide a way for Americans to sue foreign manufacturers by forcing the foreign manufacturers to accept service of process in this country and further, to accept personal jurisdiction in our courts. In order to spread the love, the bill specifically includes products subject to the Consumer Product Safety Act.

If this legal jargon has not put you to sleep yet, it means that you can sue a foreign manufacturer in U.S. courts under this legislation without a hassle. Previously, to pull a foreigner into the jurisdiction of our courts was difficult or impossible. The law ostensibly was inspired by evil Chinese drywall, and naturally our Senators need to jump into action by pointing the finger overseas. [Couldn't be the fault of the unaware importer, naturally - he's American.] Sound good?

Let's hope this goes NOWHERE. Here are a few reasons to be more than a little suspicious:

a. Mr. Durbin thought the CPSIA was a great idea (and still does). That's enough for me, personally. Other CPSIA rabble-rousers supporting this brave new world include the Consumers Union and Consumer Federation of America, as well as the "American Association of Justice" (formerly known as the Association of Trial Lawyers of America). Let me just say, what's good for trial lawyers is not good for us. Period. Take a close look at the links above - how many are sponsored by plaintiff lawyers? Worried yet?

b. If you make foreign manufacturers subject to our courts, what do you think will change for THEM? Do you think they will experience a greater or lesser incentive to enter our markets? Okay, maybe we won't miss the drywall guy, I'll grant you that. But what about the incentives felt by other factories? Some, perhaps like the factories that makes your iPod or iPhone, have enough capital and are sufficiently international in their reach that this law will little effect on them. Others, particularly the small, private family-owned factories supporting much of our middle market and small business importers, cannot take on the U.S. legal system. This law cooks their goose.

Trying to find new factories to custom manufacture products will be much harder if lawsuit exposure comes with your purchase orders. Right now, foreign factories do not have to add legal exposure to U.S. consumers into their importers' costs. All American consumers benefit from the resulting lower prices (one reason for our high standard of living). It is up to us to select and supervise our supply chain properly - that's our job. If something goes wrong, we believe you are going to come looking for us. Most (if not all) U.S. companies maintain liability insurance for this very purpose. This shifts the liability (contingent risk) to insurance companies at an affordable cost to everyone. As long as you deal with a creditworthy supplier, you will have recourse if there's a problem. This phenomenon is nothing new and if anything, this allocation of risk between U.S. businesses, their insurers and their factories is simply a matter of contract and no concern to their customers. If this law goes through, however, the entire system breaks down. Expect many market dropouts - and expect prices to go WAY up.

c. This bill is jingoistic and is intended to create a trade barrier to hurt foreign companies attempting to sell here. Trade barriers are fundamentally misguided. What happens when we put up a big trade barrier? A trade war, perhaps? In fact, a typical response (besides punitive tariffs on our products overseas) would be reciprocal laws. In other words, our principal trading partners might pass similar rules aimed at U.S. businesses, meaning that we would become subject to lawsuits all of the world. Do you know what it costs to defend a lawsuit in a foreign jurisdiction? The number isn't small. Will that provide a positive incentive for American businesses to branch out and find customers overseas? I know that it would be a viable option for us to leave a market (a country), simply to avoid lawsuits. The grass is definitely greener overseas right now. This law is a "solution" to all that.

Connect the dots, guys.

The tyranny of these new looney laws must be stopped. The damage keeps piling up. This is not my imagination - yet it definitely is your government. We better take it back before it's too late.

Monday, August 10, 2009

CPSIA - Battle Creek Examiner Letter to the Editor

Last week the Battle Creek Examiner published an article entitled "Protecting kids: Safety focus of new product label rules". The BCE today published my response as a Letter to the Editor as follows:

"Your article "Protecting Kids" (August 4) promotes the mistaken notion that the tracking labels provision of the Consumer Product Safety Improvement Act will improve children's product safety. The provision, intended to make recalls "more effective," is unlikely to have the desired effect except for high value, heirloom-type products with long life like cribs and bassinets. However, the expense and liability risk borne by companies remaining in the children's market will have a terrible effect on product availability. We will all lose from the silent erosion of critical markets like apparel and school supplies.

The costs imposed by the new law will hurt all of us by stunting innovation and slowing down small business formation. The gigantic new penalties you herald already led to many resale shops closing their children's departments. Will the residents of Battle Creek benefit next winter when warm clothing is not available to those in need? These effects are called "unintended consequences" in the press, but they are simply the direct result of a law that needs to be fixed.

It's time for Congress to address the obvious problems with the law. Changes need to be made to the law to allow the CPSC to assess the relative safety risk of products. This will protect everyone while permitting companies to do business.

Richard Woldenberg
Learning Resources Inc."

Sunday, August 9, 2009

CPSIA - Report from the Department of "Common Sense"

I am sure you, like me, are deeply grateful at the full scale adoption of "common sense" in the implementation of the CPSIA. It solves so many problems and makes life so easy for industry - it's a terrific development. As you know, this took Congressional leadership to get done. In April, 28 Senators wrote a letter to the CPSC imploring them to use "common sense" in implementing the noxious CPSIA (they didn't exactly call it the "noxious" CPSIA but there you go). Specifically, our Senatorial leaders implored the CPSC as follows: "It is our view that the Consumer Product Safety Commission is empowered by the CPSIA to exercise its authority and enforcement discretion in a manner that ensures enforcement of the Act in a comprehensive manner while providing appropriate and common-sense relief to businesses and institutions." [Emphasis added.] Since then, the CPSC has been busily trying to answer this clarion call with ever more common sensical rulings and guidance.

I have come to believe that "common sense" must be in the eyes of the beholder. I once thought that I, too, knew what "common sense" was. Apparently not. Wikipedia defines "common sense" as "Common sense refers to those beliefs or propositions that seem, to many people, to be prudent and of sound judgment, without dependence upon esoteric knowledge." Given the latest rulings by the CPSC, I must not be included in "many people". Take this blog with a grain of salt, I guess.

The latest "common sense" blast from the CPSC has been ringing in my ears for a couple days now. Perhaps you have waded through their illuminating 94-pager setting out materials that are exceptions to the lead testing requirements. I wrote about this a couple days ago. Although I realize that this document should not be taken as a recommendation on the composition of children's products, it is hard to resist the urge to take it as a CPSC-designated safe harbor. I also know that's not true, since the CPSC went to pains to make it clear that it will be wasting a great deal of resources checking up on these certifiably "safe" materials and will bring a plague of frogs on you if you are one ppm over the line. I believe Mr. Waxman thinks this is what a cautious, forward-thinking government should do.

Anyhow . . . I was puzzling over the list of metals and jewels deemed okay by the new common sense CPSC. Of course, when I read it, I asked myself who paid for this report - Tiffany's? Perhaps the London Metals Exchange.

Let's see, if I want to redesign my products to avoid the expensive CPSIA testing requirements, what materials are left available to me? [Remember, this is a "common sense" implementation of the law.]

How about plastics? We use a lot of plastics, like polystyrene, polypropylene and ABS, largely, with a few other common variants thrown in for good luck. This is hardly unusual - these are among the most common consumer product plastics on Earth. You buy hundreds of pounds of these plastics every year in your daily life. According to the CPSC, however, these materials cannot be certified lead-free (ergo not deemed compliant with the law, has nothing to do with safety) and need to be endlessly retested. [Btw, I have been doing just that and since 1990, we have NEVER had a single failure for lead. But of course, that's only 19 years, can't rule out a future failure . . . .]

So all of our products made of plastics need to be retooled to avoid testing. What can we use?

The CPSC lists a variety of metals that can be used without testing. The agency naturally eliminates common steel (found in most fasteners and staples and formed metal parts). Darn. Alloys like brass are also out (this is why pens are a "common sense" problem). Ouch, that hurts. Now what?

Well, you are certainly NOT out of options. The CPSC helpfully provides this excellent list for our comfort:

1. Pure gold (no carats specified, let's assume 24 carat - why not use the good stuff?!)
2. Pure silver
3. Titanium (both α-and β-phases)
4. Platinum

These materials are a bit expensive. The current cost per pound of gold is $15,317. Hmmm. Silver is cheaper, only $266 per pound. Please note, for perspective, that Aluminum (must be tested, of course) is $.89 per pound, steel costs about $.18 per pound and copper costs $2.75 per pound. Brass sells for about half copper. Even titanium, which is unworkable in the low tech factories that make children's products, costs about $10 per pound. Finally, our friend Platinum is going for a mere $18,264 a pound.

BUT those aren't the only options you have under the new common sense guidelines! You can also add:

5. Palladium ($4,029 per pound currently)
6. Rhodium ($24,820 per pound, currently)
7. Osmium ($5,840 per pound, currently)
8. Iridium ($6,205 per pound, currently)
9. Ruthenium ($1,314 per pound, currently) This cheapy is only for bargain hunters.

Boy, I can hardly decide!

A few interesting tidbits about these great new material choices provided by the ever-sensible CPSC:

Palladium is mined and it takes ONLY "many metric tons of ore" to extract one troy ounce of the precious metal (31 grams). It is also possible to gin some up with nuclear fission if your children's product company has some space nuclear reactor capacity. Unfortunately, we stopped using our reactor a while ago since it uses lead in some of its components.

Rhodium, deemed one of the world's most expensive precious metals, has only 25 tons of annual production and at one time was eight times more expensive than gold. Price is no concern when safety is concerned, of course! Like its brethren on the "okay" list, Rhodium is also abstracted from spent nuclear fuel rods. Here's a "watch out": "Rhodium metal is, as a noble metal, inert. However, when rhodium is chemically bound, it is reactive. Lethal intake (LD50) for rats is 12.6 mg/kg of rhodium chloride (RhCl3). Rhodium compounds can strongly stain human skin." On the plus side, it does NOT contain lead! In fact, it isn't lead at all.

Osmium is the second densest metal (after Iridium, also on the CPSC's preferred list). That's going to whack your shipping costs, ouch. Current consumption of Osmium in the U.S., for all uses, is estimated at about 140 pounds. Better get yours now! World production is estimated at less one ton per year. And . . . "Osmium reacts with oxygen at room temperature forming volatile osmium tetroxide. Some osmium compounds are also converted to the tetroxide if oxygen is present. This makes osmium tetroxide the main source for the contact to the environment. Osmium tetroxide is highly volatile and penetrates skin readily, and is very toxic by inhalation, ingestion, and skin contact." Okay, it explodes and it poisons, but at least it's not lead.

Iridium is found on meteorites and may be a clue to the extinction of the dinosaurs. And you thought it was lead poisoning, come on! Iridium is the most corrosion resistant metal known to man, which will be helpful if you store your children's product in a strong acid bath. About 6,800 pounds are produced annually. Since the CPSC has blessed using Iridium in children's products without testing, it is worth noting that "finely divided iridium powder can be hazardous to handle, as it is an irritant and may ignite in air. Very little is known about the toxicity of iridium compounds because they are used in very small amounts, but soluble salts, such as the iridium halides, could be hazardous due to elements other than iridium or due to iridium itself." Okay, it's just a "watch out", no need to panic. I am sure the CPSC thought of this when publishing its list . . . .

Finally, there's Ruthenium, produced in the tiny quantity of 12 tons per year and deemed "exceedingly rare". We probably should avoid the Ruthenium refined from used nuclear fuel rods, just some basic "common sense" there! Ditto for the other metals sourced from nuclear fission. Ruthenium poses a few common health and safety issues: "The compound ruthenium tetroxide, RuO4, similar to osmium tetroxide, is volatile, highly toxic and may cause explosions if allowed to come into contact with combustible materials. Ruthenium plays no biological role but does strongly stain human skin, may be carcinogenic and bio-accumulates in bone." Don't worry though, the CPSC thinks this item is just fine to include in children's products!

Yes, our costs are going to go up, but what about bling? We gotta have some sizzle. Unfortunately, the CPSC has a big problem with rhinestones, crystals and glass beads - those might have lead in them (horrors!) and therefore are ILLEGAL. I know they are inexpensive and are used everywhere on everything like jewelry, clothing, footwear and even sunglasses, but out they go. You can't (CANNOT) be too safe. So what does the common sense CPSC offer as a substitute? You knew they wouldn't let you down - all you need to do is pour in gobs of diamonds, rubies, sapphires and emeralds! Pearls are good, too. Price is no object when safety is concerned.

I am picturing diamond and ruby-encrusted alphabet blocks made of a ruthenium-iridium alloy . . . yes, it's a brave new world. I guarantee I would not have thought of this without the help of the CPSC. Thank heavens for government!

Glad we cleared all that up. Common sense, you gotta love it! I can't wait for the CPSC's guidelines on when to come in out of the rain.