CPSIA - Certainty, CPSIA-style

These days, you can count on the CPSC to hold against regulated companies, particularly in response to media inquiries. Facts are a secondary consideration. The WORST thing that could happen to you or your product is if a reporter calls the CPSC. You're cooked - safety administration these days is some sort of reality show, and everything's dangerous if a reporter is sniffing around.

And three years later, they'll hit you with a big penalty.

This week's crisis is the "discovery" by the Associated Press that some enamels used on glassware (the outside) have lead or cadmium bound in. The recall fo 12 million acknowledged safe Shrek glasses was the first indicator that we faced a "crisis".

Heavy metal use in glassware enamel is not exactly big news, nor a particular cause for concern (except for enterprising and paranoid reporters). Consider for example that our ever-wise Congress EXEMPTED these coatings years ago from lead regulation ("[The lead paint ban] does not include printing inks or those materials which actually become a part of the substrate, such as the pigment in a plastic article, or those materials which are actually bonded to the substrate, such as by electroplating or ceramic glazing." 16 CFR 1303.2(b)(1)). [You may also be interested to see all the other exemptions to the lead paint ban, in 16 CFR 1303.3.]

When confronted with the "shocking" news that other coated glasses besides Shrek had lead or cadmium in the enamels, the CPSC withered. They caved, and labeled these glasses (all very likely safe but featuring Super Hero images and the like) as "Children's Products". Here's a video of the reporter enjoying his 15 minutes of fame playing off the Shrek scare. He concedes that even HE thinks the risk is "low". No matter, it's good to stir up the mud. AP needs all the coverage it can get these days.

I am so happy we are being ruled by junk scientists now.

And the CPSC's determination that these products are "Children's Products" means they are subject to CPSIA regulation. This empowers the agency to recall them "out of an abundance of caution" and to impose penalties for failures to comply with the myriad rules of the CPSIA. No matter that this classification was hardly clear previously. Hmmm. Let's see how the mishmash interpretative rule on "Children's Products" makes this determination "clear".

I say "mishmash" because I defy you to figure this out for yourself by reading all the pages they threw at us. In fact, the latest "interpretation" in the so-called Final Rule does NOT seem to override the interpretive dicta in the prior version. It merely comments on the public comments that the agency by-and-large utterly ignored. The CPSC never bothers to reissue or conform past rules or interpretations. That's a job for us hobbyists.

In any event, it so happens that I addressed this very issue in my comment letter on the rule. The following section comes from the never-overwritten text accompanying the prior version of the rule. Consider this advice given to industry:

"The more of these types of characteristics that a product has, the greater the likelihood that the product is a children’s product. For example, a pen which is decorated or whose advertising and marketing features themes that correspond to obvious children’s interests, e.g., preschool characters, will greatly influence the purchase for preschool children. However, there also are ‘novelty’ pens that could appeal to children 12 years of age or younger as well as older children and adults; such novelty pens would not be considered to be primarily intended for children. For example, a simple ball point stick pen bearing an elementary school’s name, without any other decorations, would likely appeal to anyone (i.e. students, teachers, parents) connected with the school. A pen with a silly head on the top, not associated with any particular mass media (and not sold in toy stores), may have just as much appeal to adults as it would to children. Pens with puzzle features that allow the user to take them apart and reconfigure the design also are likely to appeal to children and adults alike, and thus, are not likely to be considered children’s products because they are not primarily intended for children."

Clear as mud.

Remember, we in industry must interpret this gobbledygook and run our businesses. Perhaps even more difficult is to use "rules" like this in agreement with your dealers. Basically, since the rules make no sense, it is not possible to agree with many or sometimes ANY of your customers. Welcome to my world.

It is extremely unfortunate that in the wake of conceding the safety of the Shrek glassware, and even worse, in the face of explicit exemptions of glazings in the FHSA, the CPSC would proceed to declare these items within the scope of its regulations, thus exposing yet another group of innocent companies to huge unexpected and unjustified losses. Brands will be further damaged, consumer confidence dented, and no doubt, sales of children's products will be bruised in the prime selling season. Good going, government!

This agency seems downright dense about the impact of its activities. For myself, this act proves that the CPSC cannot be trusted, has lost any sense of what constitutes safe or unsafe, and is dangerously reactive (especially in response to members of Congress and members of the press). For regulated companies, this is the worst of times - we face a looney regulator who is absolutely devoid of self-discipline or judgment. They administer a kind of "hang-'em-high" justice. If you are ever in the gray area with the CPSC, you can count on them to push you over the edge. Their rationale - you have to err on the side of safety even if you have no reasonable basis to suspect that any safety issues existed.

Okay, I get it. But when the regulator has no idea where "safety" is, erring on the side of safety means pleasing reporters who are trying to sell papers. Reporters sell fear - that's the only way to sell papers these days. Connect the dots - random losses are coming to all of us.

Selling children's products is for crazy people. I cannot believe the damage being inflicted by these people.

The database gets approved tomorrow. Enjoy the ride!