Monday, June 7, 2010

CPSIA - Lowest Common Denominator Government

We saw a display of Mr. Obama's team in action this past week as McDonald's was cornered into a national recall of a safe product. How did it happen? Did our government rise to the occasion, or simply resume its descent into the abyss?

"Americans want to be safe. And they expect their federal government to protect them. So that is what I'm here to do." Chairman Inez Tenenbaum, NPR Report “Under Obama, Agencies Step Up Rule-Making

Last week in a coordinated media extravaganza, an anonymous caller alerted Rep. Jackie Speier (D-CA) to the trace presence of cadmium in Shrek glasses being sold by McDonald's. In a rapid fire series of events, McDonald's announced a voluntary recall of the offending Made-in-America glasses “at the urging of the [CPSC] commission ”. The CPSC apparently pushed for the recall of the glasses by McDonald's after quickly testing the glasses.

[It turns out that there were two "anonymous tipsters", one of whom is Jennifer Taggart, a regular reader of this blog. Ms. Taggart has acknowledged that cadmium levels on the McDonald's glasses are well within California's Proposition 65 restrictions. Prop. 65 is easily the most restrictive and challenging of the myriad local safety regulations.]

Rep. Speier seized the election year opportunity to lecture McDonald's on safety: “’Our children’s health should not depend on the consciences of anonymous sources. Although McDonald’s did the right thing by recalling these products, we need stronger testing standards to ensure that all children’s products are proven safe before they hit the shelves,’ said Speier. ‘Cadmium is a toxic substance that is extremely dangerous to the developmental health of children. . . . Thanks to this anonymous tip received by my office, the proper agencies were alerted, necessary action was taken by McDonald’s, and the long-term health of millions of children is no longer at risk.’”

Jackie Speier is a Democrat representing the San Francisco area.

A media deluge followed the recall. Typical of the hyperbole is this article from "McDonald's announced the voluntary recall after small amounts of cadmium were found in the enamel with which character images were painted on the glasses . . . . Long-term exposure to low levels of cadmium from those glasses can cause various health problems, including cancer, bone softening and severe kidney problems. [NJ State Assemblyman Paul] Moriarty, in a news release, demanded an investigation . . . . 'It's stunning that in this day and age our children can still come into contact with toxic materials just by using a glass featuring a cartoon character,' Moriarty said in the release. . . . " [Emphasis added] AP could not resist the McDonald's cadmium frenzy that it helped to create: "A recall of 12 million cadmium-tainted ''Shrek'' drinking glasses sold by McDonald's raises questions about the safety of millions of similar cheap promotional products that have been sitting in Americans' kitchen cabinets for years."

It all boils down to trust, right? After all, it’s McDonald’s. McDonald’s is America, McDonald’s is children. If you can’t trust McDonald's, who can you trust?

I will attempt to answer that question.

First - Can you trust McDonald's?

Yes, absolutely, without reservation. McDonald's (not a customer of ours, never was) has the best reputation of any company in the toy industry (in my humble opinion) for safety, conscientiousness and attention to detail. McDonald's is HARDLY asleep at the wheel. Rep. Speier’s remarks are outrageous but for the fact that she is a California Democrat from San Francisco. Consider the source. I believe McDonald's ten times out of ten against Rep. Speier.

On the other hand, if McDonald's is so wonderful, why on Earth did they recall these glasses? Okay, you be the CEO of McDonald's for a moment – what would you do? Fight for the right to sell cadmium-laced glasses? Argue that the glasses are “safe”, that toxic cadmium isn't harmful? Please, McDonald's had no choice because it has to protect its brand. Listen to the Moms in the video above. If they don't trust McDonald's, they will walk across the street to Wendy’s. McDonald's has NO CHOICE but to “do the right thing”. The cost of the recall is a secondary concern. Burn, baby, burn.

Second - Can you trust an anonymous tipster?

Why be anonymous if you are acting “heroically”? Well, for one thing, being anonymous means you aren't accountable if you are wrong. The two tipsters were using XRF guns, acknowledged by the CPSC to be imperfect and best used to screen for possible faults. It might be embarrassing - or expensive - to start a public panic and then be proven wrong. This mess might be seen as your fault and somebody might want you to pay for the expenses. Hmmm.

What if the caller had reason to hide his/her identity? This is the very worrisome scenario. There are many people who might want to rat out a McDonald's. How about a competitor? Or a spurned supplier? A disgruntled employee or spouse of an employee? This is one of the primary objections I made to the public database - the potential for abuse is rampant. An anonymous tipster very well might be up to no good. McDonald’s loss could be the tipster’s gain – an ill-intentioned tipster in partnership with a self-promoting fear monger in election season (like Jackie Speier) could be a powder keg. [Ed. Note: It is worth noting for clarity's sake that Jennifer Taggart has identified herself so this discussion does not apply to her.]

This could happen to you, too. The CPSIA encourages this kind of rat-me-out frenzy. How many businesses will close or sell out because of this shameful law? Time will tell. In the meantime, the sport of trashing trademarks and company reputations will thrive at the hands of the "anonymous tipsters".

Third - Can you trust the CPSC?

We ought to be able to trust them. Have they earned this trust?

Here’s a June 4th tweet from Scott Wolfson, Director of Public Affairs: "Scott_Wolfson: Note to reporters: the recalled McDonald's glasses are not toxic." Interesting - the CPSC apparently pushed for the recall of safe products. Wolfson is also responsible for the press release detailing this recall: "The designs on the glasses contain cadmium. Long term exposure to cadmium can cause adverse health effects." Same guy. And Wolfson offered these calming words of reassurance to the AP: "Wolfson said the recalled glasses have 'far less cadmium' than the [recently] recalled jewelry. He would not say how much cadmium leached from the glasses in tests, only that it was 'slightly above the protective level currently being developed by the agency.'"

I believe Mr. Wolfson is the author of the CPSC's OnSafety blog - here's how he counseled consumers about the McDonald's glasses in a recent post: "If you bought these “Shrek Forever After 3D” glasses at McDonald’s – millions of you did – stop using them immediately. . . . The glasses contain low-levels of cadmium. . . . The company has stepped up to do the right thing [in issuing a recall]." [Emphasis added] He also justified the recall of non-toxic glasses in the New York Times as follows: "Both C.P.S.C. and McDonald’s are being highly protective of children in announcing this recall."

Scott has a way with words, doesn't he? Makes you wonder what his job is, exactly.

So the CPSC admits that the glasses were safe. Yet the "commission" urged McDonald's to recall the glasses. Why? Wolfson says implausibly that the CPSC was being "highly protective" in recalling non-toxic glasses. Actually, "Why" may not even be the right question.

Let's consider the question of "how". On what legal basis did the CPSC press McDonald's to take this step? The authority of the agency to demand a recall depends on the presence of a "substantial product hazard". There is no other basis for the agency to take action - it cannot act on whims or because it is always crabby on Mondays. I have addressed this issue previously in this space, and noted that the authority to initiate a recall is based on the existence of "a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public."

If the CPSC's Director of Public Affairs notifies the press that the product is not toxic, it is incontestably certain that the glasses don't present a substantial product hazard in this case. For perspective, consider the views of the U.S. factory responsible for the glasses:

"[VP Ron] Biagi . . . added that [in addition to McDonald's] Durand Glass also does material safety tests. 'We will do nothing (different) because we don't need to,' Biagi added. 'You are always looking for the most healthful way to make a product. What we're producing today, it is safe.' Biagi said there are multiple suppliers, domestic and foreign, of the enamel used for the Shrek glasses. Other glass producers use the same product, he said. Late Friday, the company issued a short statement from its CEO for North American operations, Fred Dohn. 'All the products, whether decorated or undecorated, that Arc International is delivering on the markets meet the highest standards of quality and safety,' Dohn stated. 'Arc International is a professional manufacturer that stands behind all its products. We therefore see this as an internal decision by McDonald's and will be investigating the matter once we receive more information.'"

So what gives? By all appearances, the leadership of the agency substantially exceeded its legal authority in pressuring McDonald's to recall these glasses. Any problem with that?

I won't insult your intelligence with a rant about the trustworthiness of the Democrats who are running the shop these days. If you trust Jackie Speier and the like after this sorry tale, I can't help you.

In closing, let's recall the words of Ms. Tenenbaum: "Americans want to be safe. And they expect their federal government to protect them. So that is what I'm here to do." By all appearances, Ms. Tenenbaum was doing exactly what she promised - her agency is wrapping you in bubble wrap whether you need it or not. She says that's how you want it - no matter that it's outside her legal authority, well-beyond any notion of common sense and implemented with a complete disregard to economic consequences or the impact on other market participants. It's okay because the press eats it up . . . and it helps reelect members of Congress. Everybody's a winner as we sink into the abyss.

Lowest Common Denominator Government. Yes We Can.


michael warring said...

It is difficult enought to follow the current laws, how in the world are we to follow conceptual laws? Who's conception should we use? Which agency position are we to manage by?

I have asked my six legislative representatives (two business locations) to explain the legal basis for the CPSC position in this one. Every business person following this blog should be doing the same, right now. I know I cannot manage to imaginary laws, I doubt that any of you can either.

April said...

Very well said Micheal.
As someone who is supposed to guide her company along the road of reduced liability, I am terrifed of this turn of events. You are right, when worry and emotion override law and logic, there is no way to be proactive. It is very difficult to make recommendations to our supply chain when I cannot anticipate what the next "toxin du jour" will be.

Ben said...

Rick, a thought that occured to me.

Any idea what age children normally begin to use glasses instead of plastic cups? I would think it's after the age they would be mouthing the outside of the glass.

Ben said...

One other comment. This looks like it's only the beginning of a new wave of the precautionary safety push. I'm starting to see a big push from bloggers supporting the Safe Chemicals Act and the one I read last night on Huffington Post had this gem.

""Reducing exposure to unnecessary synthetic chemicals is practical precaution -- the new, responsible lifestyle in an age of chemical ubiquity. And, just as our increasing understanding of chemical risks compels us to take precautions as parents, this knowledge should also be applied to our government regulations. Smart policy uses forethought because, as the old adage goes, "an ounce of prevention is worth a pound of cure." The environmental, economic, and health crises we continue to face only serve to reinforce that fact we need to place more emphasis on prevention. I'm hoping that the recently introduced Safe Chemicals Act can be one piece in an array of new policies that will start infusing the wisdom of forethought into government regulation. Not because we are worried, but because we are responsible."

So remember they aren't worried they are just being responsible. Then you click the link to his website and you are greated with a nice fear mongering video about the dangers lurking in your home and yard.

Rick Woldenberg, Chairman - Learning Resources Inc. said...

Ben, first of all, this product is SAFE. The CPSC acknowledges this in writing, although you are apparently supposed to ignore their quotes in the press. Wink-wink, nudge, nudge. Soooo, if it's safe, it doesn't need regulation. Sorry, Barack, but life isn't better with more regulation. We are living your dream.

Anyhow, I think we should figure out when cadmium is bad and when it isn't. In my view, since we are a living cadmium experiment and have been for many decades, the absence of identifiable victims (besides lab rats) is telling. I am referring to the ABSOLUTE ABSENCE OF VICTIMS. This "crisis" is the fault of one AP reporter, the product of his junk science, vivid imagination. I cannot identify the problem.

As for your other point, you are spot on. The next battle (perhaps the underlying problem in the CPSIA, actually) is Henry Waxman's dream of "reforming" the Toxic Substances Control Act. He wants to change it into a REACH-style law, where Mother Government takes responsibility for making sure we are always safe.

There was once a time when European-style legislation used to elicit snorts in this country. Now, the very fact that the Europeans have written self-destructive legislation that is damaging their economy has become a JUSTIFICATION for copying them. They are our "beacons".

Lemmings do this, too.

Ben said...

Just to clarify I'm not disagreeing that the glasses are safe. I have one in my house.

My thought was based on the news video in your post. The reporter interviewed several mothers of very young children asking if their kids would mouth the outside of the glass. I was trying to pinpoint whether kids young enough to mouth objects would be given breakable glasses.

Rick Woldenberg, Chairman - Learning Resources Inc. said...

Ben, frankly, I hate to go in that direction, despite your irrefutable logic. The basic paranoia here derives from a fear of cadmium atoms. Parents fear not only licking but simply touching. Cadmium "contamination", in the form of 10 or 20 cadmium atoms that might come off on kids hands. This is the source of the spasms of fear. You can't argue logically with irrational fears - these folks revel in their general fear of the unknown.

This is the new field of "junk science", Ph.D.s in this field are able to determine that these cadmium atoms are deadly because cadmium "causes" bone softening and other horrific maladies. In the field of junk science, it doesn't matter that none of us have ever encountered "bone softening" - it only matters that it sounds really scary. Practitioners of junk science are also able to utterly ignore ALL other sources of cadmium in our lives, as though elimination of the Shrek glasses takes care of the "problem". Life is simple for junk scientists.

Of course, there isn't a day that goes by that I don't thank our Heavenly Father that we are being prorected by Inez Tenenbaum and the CPSC. I feel so safe . . . .

Anonymous said...

Am I the only one missing the irony that for the "long term health of our children" we just might want to consider recalling the FOOD at McDonalds? Just a thought...

Sebastian said...

I find that the frenzy over the imagined threats just don't match up with the reality of how healthy US kids are compared to kids in the developing world (where they might share cups with the whole family and are still hoping for reliable clean water) or even with a couple generations in the past.
Each of my parents had a sibling who died in childhood. Go back another generation and you were often losing several family members or whole families to epidemics like cholera.
Having lost the perspective of what real dangers to life and health exist in the world, we seem to be expending the same energy that developed polio vaccines into "protecting our children" against threats that are relatively low risk, if not unsubstantiated and largely imaginary.
McDonald's will probably bounce from this (although I almost hope that CPSC does it again often enough to get the McDonald's legal smack down team focused their direction). But I'm glad that the food and clothing that my kids wear isn't dependant on income from the unfairly targeted glass company. I shudder to think of how many orders they're having cancelled.

Anonymous said...

According to a managing chemist at the leading European test house, the issue of cadmium on glasses is not exposure during use but exposure during recycling, during which process the cadmium is heated and a chemical reaction is created which produces dioxin, possibly the most toxic substance known to man. Of course this begs the question of whether ALL glasses should be checked for cadmium. Furthermore, the chemist does not understand why this is an issue at all for us as the EU dealt with this problem a long time ago with understandable and easy to follow regulation.