CPSIA - What does "Any" Mean, Anyhow? Waxman Staff Weighs in.

The Waxman Amendment 2.0 is still percolating but with Congress on its Spring break, progress has stopped briefly. That does not mean, however, that discussions have ended or that the Amendment is "dead". It will likely spring back to life shortly as Congress wakes up again next week.

Those of you who savor fractiousness and gridlock in your government will no doubt be pleased to know that the usual bickering and stubborn disputes over the awful CPSIA continues unabated.

In a meeting last week about the Waxman Amendment, senior Waxman staff again rejected the concept of allowing the CPSC to assess risk. [Given the extraordinary conservatism of this CPSC Commission, I can't imagine what Waxman is worried about . . . .]

The position of the Waxmanis has significant implications for the controversy over the word "any" in the lead exemption provision. Some commentators have argued that "any" does not mean none and that if "any" is accorded that meaning, then the exemption process would never yield any exemptions. [CPSC staff have reached similar conclusions, hence their universal rejection of exemption requests. This also explains their puzzling approval of nuclear waste for inclusion in children's products.] Resolution of this issue might not only crack the door for exemptions but might also help narrow the scope of CPSC responsibilities by eliminating obviously safe products from the lead rules. This would be good, to restate the obvious.

According to Waxman staff, the CPSC got it exactly right - the word "any" is meant to prevent exemptions if ANY lead could pass from the subject item into the human body. No matter that this means that there will never be any exemptions possible under the exemption process (!). No matter that there are many other environmental sources of lead which pose a far greater hazard in a child's life than almost all children's products. No matter that many useful products might be banned (see my latest casualty post). In the Waxmanis' estimable view, Congress "wanted" ZERO lead in the communal toy box. Otherwise, there might be a "perverse" effect on safety. Or so they say.

This is exceptionally unlikely to be true. Interviews with MANY members of Congress over the past two years confirms that "Congress" believed that the CPSIA included a real and workable mechanism for sensible exemptions. Not that anyone thought about the details of this bill for more than a few micro-seconds, but if they did, they thought there was a viable exemption process. Actually, it takes virtually no effort these days to find members of Congress who assert that the CPSIA was a toy bill. Gotta keep 'em guessing, I suppose.

It must be nice to be able to project your own views onto an entire institution. This is a good way to defect blame. What did Congress "want"? No one can know what that amorphous institution wanted or wants. At this point, the Waxmanis are self-appointed interpreters of the Congressional psyche. In reality, it only matters what "House baron Henry Waxman" wants. In this case, an impotent exemption process is exactly what he wants. The sham also provides him with cover against more skeptical members of Congress. That you can see through it hardly matters - do you actually expect members of Congress to read the law and figure out how it works? Come on!

That's participatory government for you. Unfortunately, you only think you are participating. Mr. Waxman will let you know when he needs your input. . . .