Thursday, August 26, 2010

CPSIA - Making It Up as We Go Along

743 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are 68 days left until Election Day.

The CPSC today whacked education company Lakeshore Learning Materials with a recall of Magnetic Maze products. This recall involved 18,500 units of a total of five products sold over a 18-month period. Was this recall justified? Well, anything goes these days but consider the facts:

There have been no reported injuries from this "hazard" - namely loose magnets. The company has received ten reports of loose magnets. The CPSC sums up the "hazard" this way:

"The magnetic maze board’s plastic wand can separate and expose a magnet that can be a choking hazard to children. Also, if a child has more than one of these toys and the magnets detach and are swallowed, the magnets can attract each other and cause intestinal perforations or blockages, which can be fatal." [Emphasis added]

Before we unpack this baloney, please consider for the umpteenth time where the CPSC's LEGAL BASIS for issuing a recall comes from. The authority to recall consumer products derives from the FHSA which restricts the agency's authority to "imminent hazards". Section 12(a) of the FHSA provides this definition: "As used in this section, and hereinafter in this Act, the term 'imminently hazardous consumer product' means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury." [Emphasis added]

So the CPSC must reach the legal conclusion that this product creates an IMMINENT AND UNREASONABLE RISK of death, serious injury or severe personal injury to order a recall. Did they meet that standard here?

The CPSC provides two explanations for this recall, namely small parts/choking hazards and intestinal perforations from ingestion of magnets. Of course, the latter hazard is derived from a fear of Magnetix, a notorious recall in the bad zone of 2007/8. There is no indication that these magnets were strong magnets as found in the Magnetix product.

A quick glance at this product confirms that the product is DESIGNED with small parts. These products were certainly tested for compliance with law (we know these folks well, and they are exemplary corporate citizens who are exceptionally careful about legal compliance and safety). Therefore, the assertion that the presence of small parts in this product somehow constitutes a violation of law or good practice just doesn't hold water. I could use stronger language, but I think this is a nonsense excuse.

And what about intestinal perforations? That's pretty icky, shouldn't we be intolerant of loose magnets? Well, the CPSC states the conditions under which these magnets could be a problem:

Step 1: The child must have more than one recalled product. [You need two products to have two magnets! There are 18,500 defective units in the world, let's not forget - a total universe of 18,500 magnets.]

Step 2: TWO magnets must fall out, one from each unit. [Ten loose magnets in the world are known. As noted above, there is no indication that these magnets are dangerously strong enough to perforate anything. A niggling detail?]

Step 3: An idiot child must choose to EAT these two yummy loose magnets in one sitting.

This has never happened, apparently. Could it happen?

This is well-beyond farfetched, but there you go. At today's CPSC, the agency is apparently no longer permitted by the politicians who run the place to reason or to assess any form of risk. If the risk can be put into words, that seems to make it real enough to punish any company severely. No doubt this recall exposes Lakeshore to grievous penalties, too. And for what? Can anyone make the case that this makes anyone ACTUALLY safer? And, call me picky, but is this a case of "imminent and unreasonable risk of death, serious illness, or severe personal injury"? I believe this speaks for itself - the answer is no.

Remember, these regulators work for us, the citizens of this country. As the regulators confuse and scramble the expectations of industry and consumers, as they disregard their enabling legislation to chart a path that makes sense only to them - something important is lost. Is that acceptable? Not to me. Remember this on November 2nd. Let's hope it's not too late by then.


Carlos Pero said...

I presume the child swings the product around by the string and the wand breaks off, and due to a design flaw, a scary magnet inside comes loose. It's a shame the CPSC has to incite fear to justify getting involved in what should be a customer service issue.

Anonymous said...

Speaking of making it up, what is your evidence that CPSC initiated the recall and not the company?

Anonymous said... is your answer. Direct from the recall announcement sent out from, you guessed it, the CPSC - see below. Take note that the CPSC...IN COOPERATION with the firm named below. Yes it is voluntary but who else are you going to report to? The FBI, Oprah, perhaps?
This is a B.S. recall...

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

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

I have no direct knowledge of this case, and have no idea if the company or the CPSC initiated the recall. However, the CPSC PR machine is behind this notice, and the impression is intentionally given that this is a CPSC action. We may never know but the CPSC is claiming the "glory" in its press release while at the same time explaining the hazard in a misleading way. At a certain point, it seems to be splitting hairs over who "initiated" the recall. The CPSC took it over, it belongs to them now.

When a company self-imposes a recall, whether correctly or not, the public and the manufacturing community has virtually no choice but to take the recall as the CPSC's opinion on the matter. We can't tell the difference - because the CPSC never distances itself from this kind of bad news (the agency is our protector, after all). Even in those rare cases where the CPSC doesn't make you do a recall wunder circumstances another company already has, you still face tremendous fear and resistance in the market. Why? Because of the original recall. It's a real problem.

And while we're on the subject, has it occurred to you that this dynamic also likely means that many of the recalls "imposed" in the past may NOT have been initiated by the agency? And, if that's true, then perhaps the "crisis" wasn't so great after all. In any event, the CSPC can't account for more than one death and three asserted injuries from lead in an 11-year period from 1999-2010. Hmmmm.

Sorry if I somehow misled you.

Geoff Jones said...

Let's not forget that if the company found this problem and reported it to the CPSC (i.e. told on itself out of fear of reprisals if it didn't report, I'm still not sure how the 5th Ammendment isn't being trampled on here...) the CPSC at one time had the discretion to say, not a big deal, this isn't something you need to report. With the advent of the 15b report you can do what is termed a "Fast Track Recall". In essence quickly "rip off the band-aid" and implement a recall witin 20 days without needing to get an indication from the CPSC that there really is a problem. This doesn't excuse you from being fined. Companies are so scared not to report even trivial problems that consumers are being innundated with recall notices for things that really aren't dangerous at all. This has the effect of "crying wolf" to the point that the public is getting numb to recalls at all and doesn't pay any attention to them. Rick I know you have pointed out that you had very good success with the one recall from your company, in my case we have had a couple recalls and in each case, even with a mailing list of customers we struggle to get 15% response (i.e CPSC recall notice, emails, snail mail to the customer, even follow-up calls by customer representatives). I think that these "nonsense" recall are having the opposite effect on consumers and that they no longer even responding to the recalls at all. This means that the only thing companies are getting out of recalls is a trashed reputation for trying to do the right thing. Lyndsey Layton did an article in the Washington Post on July 2, 2010 that pretty much spelled it out, consumers have "recall fatigue".

Anonymous said...

Most recalls are initiated by companies, not CPSC, and have been for decades. Play-it-safe recalling is nothing new.

CPSC has been handling hundreds of recalls a year for years -- nothing has changed and the numbers are not much different pre- or post CPSIA. Actually, they've gone down slightly.

The public has never paid attention to recalls and never will.

This press release was mostly the same old boilerplate used in every recall -- especially the part about "in cooperation with the CPSC."

This is a molehill.

Sebastian said...

Was it a molehill when McDonald's glasses were recalled? Because the Time magazine about the topic explained that cadmium was a clear and present danger and that consumers should be very concerned.
For that matter, this seems like a similar recall to those used to justify CPSIA in the first place (or as my kids refer to it, "That stupid lead law".)

Anonymous said...

If the Dems lose in November (and the chairmanship of the House Energy & Commerce rotates to the other party), it is reasonable to expect that the congressional oversight will change so as to provide some relief. However, what will it take to replace and/or restrict some of the current commissioners who are pushing the draconian regulatory atmosphere? For how long are these individuals appointed, and what is the chance that others can be put in place given that the Executive branch will hold power until 2012? Thoughts/comments?

Rick Woldenberg, Chairman - Learning Resources Inc. said...
This comment has been removed by the author.
halojones-fan said...

It seems to me that the narrative writes itself--Democrats obsessed with bureaucratic minutiae over actual substance; Democrats who claim that potential future threats are just as dangerous as immediate hazards (work in pool-drain covers, and also point out the irony of Democrats depending on Scary Things Might Happen while telling us that terrorists don't exist); Democrats who appoint themselves regulators of industries they don't understand and let big business write the regulations; Democrats who claim that it's not their problem when ludicrously severe testing requirements drive companies out of business.

"You say that you're interested in safety? Then show us that we're unsafe. Our whole business model is based on selling products to children; why do you think we'd want to kill our customers?"

"You say that you want to jumpstart the economic recovery. That's great--why not get out of the way and let us recover? The economic crisis is not your opportunity to reorganize the toy-manufacturing industry."

bchiasson said...

It doesn't matter whether or not the CPSC mandated the recall or Lakeshore voluntarily issued the recall. The CPSC is trying to justify their existence.

The CPSC recall notice states, "the magnets can attract each other and cause intestinal perforations or blockages, which can be fatal.".

Yet, the recall notice doesn't state this toy actually contained "hazardous" magnets. The ASTM F963-08 clearly states the definition of a hazardous magnet as follows:

...magnets and hazardous magnetic components as those being small parts and containing a magnet with a Flux Index of 50 or greater.

According to the Federal Register of July 21, 2009 (Volume 74, Number 138), such hazardous magnets are prohibited in toys for children 14 and under. Did these Lakeshore Mazes have hazardous magnets? Doubtful, but we'll never know.

Forget about the cost impact to businesses. The most critical issue is that "real" hazardous product can be slipping through the cracks as the CPSC is distracted by these benign witch hunts. Taxpayers should be outraged.

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

Anon, you are right - if the voting patterns and administrative strategies of the folks controlling the Commission don't change, we stay screwed.

The bet is that a Republican Congress which is motivated to do something about this issue (this is hopefully not a leap of faith) has means to cause an agency to bend to its will.

Our only chance is to send a STRONG message to the CPSC through our actions pre-election and with our votes. When the Republicans win the House and hopefully the Senate, we must IMMEDIATELY descend on the new majority and lobby for relief.

Time will tell.

Anonymous said...

Why do you think Republicans would be any more inclined to do something? Would they not also be concerned with the possible appearance that they don't care about children's safety?

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

Anon, I cannot guarantee the future, of course. That said, the Republicans have been very solicitous and concerned about the legitimate business issues I have raised about the CPSIA since November 2008. In fact, they were sympathetic and active from literally DAY ONE (three days after the election, in fact). Two Republican Senators and six Republican Members of Congress spoke at our Rally in April 2009 (Waxman scheduled a House Energy and Commerce meeting to coincide with our rally, so no Dems accepted our invitation to speak).

The Republicans have also been active in demanding hearings, pushing for relief at the CPSC (from Congress and also via Republican members of the Commission) and most recently, worked on negotiating a fair and appropriate amendment to the CPSIA. Waxman refused to budge, even a millimeter, and the amendment died an appropriate death.

Will the Republicans act for us when they get their gavels back? I certainly hope so, but we will have to see what happens. I feel we have made a business-like case that the flaws in the law are desperately penal to businesses without savnig a life or preventing a new injury. It's pure wasteful regulation, a Washington specialty. I believe Republicans will act to repair the damage for the benefit of the AMerican people. Hopefully the Nanny State will fire its Nanny.

Anonymous said...

Meanwhile you should see what Mattel who's so wonderful they get to manage their own testing is up to.

Sarcasm Much? said...

Great news, only 172 children have died this year in swimming pools since Memorial Day! Those stern warnings sure made a difference.