Thursday, September 23, 2010

CPSIA - "Children's Product" Means Whatever They Want

770 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 40 days left until Election Day.

As the Commission privately dithers, or squabbles, for weeks over passing the final interpretative rule on the meaning of "Children's Product" under the CPSIA, a recent recall illustrates the uncertainty and capriciousness of the draft rule currently in use by the Compliance staff. Or, should I say, the uncertainty and capriciousness of the current administration running the CPSC shop?

On Tuesday of this week, the CPSC announced the recall of mood rings. No, they weren't recalled because the CPSC inspector's mood ring always turned black, but good guess! The agency cited "high levels of lead". Oooo, scary lead!

Ahem, doesn't the CPSIA only apply to "Children's Products", and if so, don't the mood rings need to be "Children's Products" to be subject to the new lead standards? Right and right, careful reader! You have been paying attention, unlike certain regulators. The CPSC says this is a product intended for children under 12, so they were just doing the Lord's work to recall them, right? Save the Children! Who could oppose that?

Perhaps we should hear the company's side of the story (courtesy of one of my readers, thank you, Anonymous!):

"September 21, 2010,

To Whom It May Concern:

From: D&D Distributing-Wholesale, Inc.

To Whom It May Concern:

We are writing in response to the Love Tester items that were found by CPSC staff to contain lead in excess of the current CPSIA limits. These items were originally purchased in 2005, and intended as a teenage to adult novelty, and not for children 12 and under. This is evidenced by the novelty of this item being to measure the sexual performance of the bearer with the results ranging from clammy to naughty, passionate and hot stuff. These words were specifically chosen to target a more mature market.

Nonetheless, due to our awareness potential future legislation, we instructed the factory to make these items using lead-free metal to avoid any problems. The factory confirmed that these goods would be made out of lead-free material and adjusted the prices to reflect this. In 2005, we felt that this effort was appropriate for the time. By the second half of 2007, D&D Distributing had started the process of testing new items as well as taking steps necessary to ensure that older items were lead safe. We had contacted the factory of the Love Testers again in 2007, and they responded that they had done their own testing to confirm that these items used lead-free metal.

We believed that this was enough evidence to make a reasonable assumption that the Love Tester items did not contain lead.

In early 2009, we were visited by CPSC Officer Marcus Morris. Officer Morris randomly selected items for x-ray testing, as well as several items offered by D&D staff, and a few items did have lead content in excess of the new limits. These items were ordered to stop sale. It was our intention to evaluate every questionable item imported previous to new federal law (CPSIA act of 2008), and test them using CPSC’s x-ray gun. Unfortunately, the Love Tester items were missed during this time. Since early 2009, we have had several other visits from Officer Morris, and many other items were offered by D&D to be tested.

CPSC has determined that the Love Tester items are for children 12 and under, and D&D agrees to comply with the CPSC’s decision to recall the items.

Best regards,

D&D Distributing-Wholesale, Inc."

[Emphasis added.]

So the CPSC just decided that this sex toy was for kids 12 and under. Perhaps kids grow up faster in Bethesda, I don't know, but the action of the CPSC seems to ignore the clear intent of the manufacturer, not to mention the rather obvious fact that this product is not suitable for Middle School children (or younger). Feeling "clammy" yet?

Okay, zealots of the world, you ask - how dare you defend icky LEAD? Don't you Rick know how dangerous lead is for the CHILDREN? Let's not forget the children . . . .

Lead's capacity to harm has never been in doubt, but of course, I believe facts and circumstances are important in determining WHEN lead is a worry. In this case, however, I think the issue is different.

As a manufacturer subject to the awful CPSIA and the unrelenting pressure of the manic CPSC, I object to rules "on wheels". If the CPSC can move the rule from here or there to justify whatever it wants to do today without restraint, how can I protect myself? How can I plan? Please TELL ME what a "Children's Product" is. I have to figure out what my legal obligations are. Do I have to test, or not? Do I need to be lead-free, or not? What about phthalates? I also sell to thousands of distributors and stores. They are as confused as me, or more. What if they disagree with my judgment? Who decides what's right? And what if the CPSC disagrees with both of us? What is our recourse? [You know the answer to that one.]

Will regulators at the CPSC ever understand how this kind of case absolutely SCREWS me and everyone else that stupidly remains in the children's market? Will someone PLEASE tell me how to run my business? PLEASE!

We seek meaning in what we do. We produce educational products for a reason - we want to change the world for the better, we want to make a better future for children in dozens of countries. It is our privilege to do this for a living. The CPSC ruins the fun and meaning we find in our work. They poison the well by doing damage to a mood ring company. They have attacked me directly, too - but I am prohibited from telling you in this space what they are doing. I want to, but I cannot (yet). And you're next.

This has to end. I am working on it, but you have to help, too. Do you want to be the next "mood ring" company? I don't. Please HELP me. Please HELP yourself. We (you) cannot sit on our hands at a terrible time like this.


Chris said...

Nail on the head, Rick. How can we be expected to hit a moving target?

I'm very tempted to contact the Office of Education, Global Outreach, and Small Business Ombudsman once it's established for EVERY product I need to make a determination on. They're here to help us, right?

For even more fun, I'd like to try an experiment after this office is established. Ask the Small Business Ombudsman for assistance, then ask the Office of Compliance for assistance on the same products. I have a feeling that the likelyhood of getting two different answers is greater than you'd expect.

- thanks to YKK for the idea of testing the 'testers'. What a great precident to prove the insanity of this legislation!

Wacky Hermit said...

This disturbs me on so many different levels that I'm still trying to suss out which one it disturbs me on most. And I hate to be right as much as you do, Rick, but I predicted something like this would happen. You can't legislate away the laws of statistics or the difficulties inherent in a sampling regime.

So it's worse than you thought, Rick, because not only does this ruling extend CPSIA to all products children might possibly conceive of touching, but it now effectively requires a 100% testing regime for all those products.

halojones-fan said...

I guess this shows us what'll happen to all those small manufacturers who think they can "get around" the CPSIA by labeling everything "not for use by kids under 12"...

Again, I think that the solution is Massive Compliance. Go to the store, get all the SKUs and manufacturers, and submit complaints on EVERYTHING. See how well the CPSC does when they have two hundred thousand complaints to process!

jennifer said...

This is beyond a scary precedent they are setting with this one for any company that makes anything. Since kids don't live in a bubble, as leader of the CPSC thinks they do or should coming into contact with things that are only intended for them, wouldn't the majority of the products fall under this? This is not helping or saving anyone, it is killing business. Period.

Anonymous said...

The insanity of this is beyond spine chilling . . . it's like something out of future-world fiction. . . .

They ARE determined to crush the small guys--100% . . . no exceptions.

Ask yourself, "WHY"?????

Chris said...

Do you think their response would be any different than the fewer than 100 responses to the draft interpretive rule defining children's product? They flat out ignored those comments.