From tonight's Wall Street Journal website:
REVIEW & OUTLOOK
APRIL 6, 2010
Waxman's Lead Poison
A fix of a bad law that is no fix at all.
The word "enhancement" is suspect in any form of advertising, and it turns out the same applies to Congress. In his forthcoming Consumer Product Safety Enhancement Act, House baron Henry Waxman is botching the opportunity to fix a bad law while adding provisions that make life even worse for small businesses.
Since the Consumer Product Safety Improvement Act passed in 2008 after a scare over lead in toys from China, Democrats have defended their handiwork while blaming the Consumer Product Safety Commission for the law's ruthless implementation. The CPSC, under Republicans and Democrats, has correctly replied that it lacks the discretion to judge whether a product really poses a threat of lead poisoning. It also can't permit exemptions from the law based on risk, even for books or pogo sticks.
Mr. Waxman is insisting that any product applying for an exemption would still be subject to a three-pronged test to determine whether stripping lead from the product is "practicable or technologically feasible," whether a product might end up in a child's mouth and whether its exemption would affect public safety. In a response, CPSC Commissioner Nancy Nord explained that since all three tests have to be met for a product to qualify, "the exception is as empty as the exception for no absorption of any lead. Such a provision does not really help anyone."
Equally problematic is a provision that would require companies to disclose previously confidential information about product concerns. Today, a company may file something called a Section 15 report acknowledging complaints or internal concerns about a product, and the report remains confidential unless there is a recall or similar action. Under the new law, those reports could become public immediately, which would discourage companies from filing them at all, further compromising the transparency Democrats claim to want.
If Mr. Waxman wants to enhance Congress's original creation, he should start by letting product safety regulators consider whether products are safe.
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The problem is that Congress members, these days, seem to act as though they aren't actually passing laws, but are actually just drafting policy statements about high-level issues. They assume that the actual rule-making ought to be done by the regulatory bureaucracy.
The problem here is that the regulatory bureaucracy is A: part of the Executive Branch, and B: not actually elected. This violates the two main principles of American government--separation of powers, and representative democracy.
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