Friday, January 29, 2010
Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.
CPSIA Casualty of the Week for January 25, 2010
CPSIA Means No Bling for Baby
When Elementary School teacher Marcy Cohen had her first baby girl, she and her sister Lori Rockoff, a social worker, started making tiny accessories for the newest addition to the family. With only a few strands of hair to adorn, the sister team developed "no slip" clips and bows. Soon, their sparkling rhinestone creations were catching the eye of friends and strangers, prompting them to launch Pea Soup Accessories for Kids, which quickly became a leading manufacturer of hand-made children's products. Their trendy product line includes a wide variety of accessories from embellished headbands to ornate socks.
Yet, while the sisters behind Pea Soup were busy supplying hundreds of high-end boutiques, Congress was working on the Consumer Product Safety Improvement Act (CPSIA) to devise new testing standards of the metal and crystal embellishments that give Pea Soup accessories their unique flair. While none of Pea Soup's products ever had any safety or lead problems, the confusing nature of the CPSIA forced the sisters to make substantial changes to much of their line.
"We did not want to take any chances with violating the new law," says Marcy. "In order to avoid any risks, we scrapped many of the products in our line and had to manufacture new ones with different and compliant materials."
As a result of the law and the cost of the required testing, Pea Soup was forced to significantly change their product line, eliminating much of the creative embellishments that made their accessories distinctive and leaving them with thousands of dollars worth of perfectly safe (and adorable) unsalable inventory.
For more information about Pea Soup visit, http://www.peasoupaccessories.com/about_us/
For additional information on the Alliance for Children's Product Safety and CPSIA, and to view previous "Casualties of the Week, visit http://www.AmendTheCPSIA.com/
Tuesday, January 26, 2010
Last Friday, Commissioner Bob Adler posted his long-awaited position paper on lead and related CPSIA issues. Weighing in at 21 pages and 89 footnotes, Mr. Adler's paper includes a thorough recitation of facts as well as his recommendations about the law. Among other things, he recommends making the lead exemption process more flexible and allowing clothing to be sold through charity resale shops. He also left the door open to changes that would ease the economic burden of the CPSIA on small businesses and low-income consumers. I agree with all of these changes - but I also think many other and more extensive changes are needed, too. I do not agree with the basis of Mr. Adler's reasoning, however, and that makes all the difference.
Mr. Adler devotes about half of his statement to a detailed analysis of lead safety, reciting many facts that are not in dispute. Unfortunately, he then leaps to familiar conclusions that we have seen in recent Commission meetings and which are also found in many of his written statements. He does signal some extremely limited flexibility on lead, more or less hewing to the line put forth by Central Casting.
Ironically, Mr. Adler's statement sometimes leaves you wondering where he stands, since he seems so sympathetic to both sides. It is frustrating to not have a clear picture of how he really sees the world. I fail to find persuasive his argument that the lead rules are good for us when they lead to ridiculous results like the banning of brass bushings on toy cars. Mr. Adler himself noted in the Learning Curve hearing that the brass bushings pose NO risk to children at a hypothetical tipping point with blood lead levels (in other words, the toys were incontrovertibly safe) - and then voted to ban them because the law compelled it. This should trigger a sense of outrage in the Commissioner . . . but it doesn't.
To me, as an ex-lawyer, the illogical results documented in the Learning Curve case are intolerable. It is proof of a defective law and a defective system. Banning acknowledged safe products is a SIGN of problems, not something to rejoice in. As you know, it costs money to toss away perfectly good product. It also costs a lot of money to employ CPSC staff and Commissioners to decide silly cases like the brass bushing case. Something's quite wrong if we are celebrating a system so obviously broken.
i believe there are fundamental flaws in Mr. Adler's views on lead which prompt him to make recommendations basically defending a broken, illogical and self-destructive legislative system. Let me start by stating what I considered to be incontrovertible facts:
- Lead is bad
- Lead can be dangerous to children
- Harming children is bad, and unacceptable if reasonably foreseeable.
- Lead poisoning in children is largely if not entirely the fault of lead house paint and leaded gasoline
Mr. Adler makes the latter point in his footnote 83: "Clothing is not a significant source of lead poisoning. Far and away the greatest source of lead poisoning is lead paint in older housing, lead-saturated soil from gasoline emanated over the years from automobile exhausts, and lead-saturated dust (both from paint and gasoline)." [Other citations omitted] It is important to remember that Mr. Adler KNOWS that blood lead level problems stem from house paint and the long term consequences of years of leaded gasoline use (particularly in the inner city).
Mr. Adler tries to prove that lead is bad - but that fact is beyond dispute. He goes further and builds the case that there is no "safe" level of lead, providing citations. Thus established, he then seems to justify the legislation's strict terms based on the logic that if science hasn't identified a safe level for lead, every instance of lead is therefore dangerous: "We may have currently reached the outer limits of our ability to measure negative effects of exposure to small amounts of lead, but that does not mean that no adverse effects are occurring. It basically means that we do not know." Scary stuff. . . but what does he really think?
It's hard to tell. Notwithstanding his assertion that no level of lead is safe, Adler seems oddly reassured by the permitted levels set by Congress: "[Given] that lead remains ubiquitous and often unavoidable, policymakers who are fully aware of lead's risks, have sought to determine some level of lead that would be acceptable - at least until new information becomes available." And these all-knowing policymakers (Congress) set a retroactive scheme of rapidly declining permitted lead levels. In other words, what was considered "safe" (meaning legal) on February 9, 2009, was "unsafe" on February 10, 2009, and what was considered "safe" on February 10, 2009 became "unsafe" on August 14, 2009, and what was "safe" on August 14, 2009 promises to become "unsafe" on August 14, 2011. Mr. Adler analyzes retroactivity under the CPSIA in his statement and then endorses it. Huh?
I fail to grasp the logic of either Congress or Mr. Adler here. Is lead in substrate dangerous or is it not? Is there a safe level for lead or is there not? Is lead safe on one day, and not safe on the next day? If so, can someone explain the science of that safe/unsafe trigger to me? I believe Mr. Adler's accommodative attitude toward the lead standards and retroactivity is best explained by politics than by any notions of safety or risk.
It is even harder to take Adler's stern tones on lead seriously when you consider the volume of lead elsewhere in a child's life. Will regulation of lead in substrate in children's products have any material impact on blood lead levels? Can anyone prove that it will, or that the cost of getting rid of all the lead is worth the cost? Remember that we could redeploy the same money for more impactful projects, like eliminating high lead levels in drinking water in schools or remediating soil contaminated with lead. We have already covered the fact that Mr. Adler knows that blood lead levels are fundamentally tied to exposure to leaded house paint and contaminated soil. It is also well-known that cars are coated in lead paint, legally under our laws. Lead is also in our food chain, is found in nature - and enters our bodies every day. [For data on this topic, see "Eat My Dust".] By obsessing on children's products in the face of these facts, Congress ensured that its new legislation would fail to deliver measurable results.
In essence, the slogan "no safe level for lead" connotes a risk-free condition. "Risk-free" is an unrealistic standard and FAR too expensive as public policy. Mr. Adler uses this formulation in his lengthy analysis of used clothing sales: "In sum, I cannot state with certainty that a "safety" threshold of, say, 1 µg/dL blood level change would never occur from zipper sucking. . . . The fact that I cannot say there is no risk is why I characterize the choice [between allowing and banning resale of used clothing] as between bad and worse." [Emphasis added] Mr. Adler is not following a legal principle here, he is asserting one. This is the precautionary principle, the famous Nanny State being implemented before your very eyes.
It is difficult to diffuse an argument based on the elimination of all possible risk. If we wish to organize our society around the elimination of risk, rather than the management of risk, we are doomed. All of us, not just the children's product industry. The sad truth is that no one in the Federal government can prove that the policies of the last 35 years on lead caused injury. Mr. Adler implicitly asserts that our inability to prove that it DIDN'T is enough justification to throw the old system out. This is a belief system, not science.The fear of risk is fanned by the threat of undetectable dangers. Mr. Adler notes: "To say the effects [of lead on healthy children] are not directly observable is not to say that that they are minor." He amplifies this point by implying a link to children's products to lead injuries without any proof of a relationship: "[MRI] technology has permitted us to identify permanent damage in adults stemming from childhood lead exposures." Exposure to what, precisely? ABC blocks or the soil next to an inner-city apartment building in the leaded gasoline era? Mr. Adler's assertion that we just don't know what the harm is dodges the real question - how do you know there is any harm resulting from THESE USES OF LEAD? No answer is supplied because no one can answer that question.
The Adler statement paints a pretty compelling picture and the 89 footnotes were presumably intended to add academic gravitas to his arguments. However, not all academics agree with Adler. Here are videos of the presentations of two Ph.D.s who specialize in risk assessment in children's products and lead issues taking an opposite view: Richard Reiss of Exponent and Barbara Beck of Gradient. They both note that the dose makes the poison and that only through true risk assessment will a sensible safety system be possible.
A couple brief notes:
- Mr. Adler talks a lot about retroactivity in the CPSIA. At the end of the day, he comes down . . . get ready for it . . . in favor of retaining retroactivity, but also for the recommendation of the Commission to make the pending 100 ppm lead standard prospective. I am not commenting on his arguments other than to say that I think relaxation of this provision would bring considerable economic relief without any possibility of physical harm to anyone. That's enough reasoning for me.
- In calling for change to the lead exemption process, Adler is apparently willing to support only "a modest expansion in the amount of discretion granted to the Commission". I find this rather curious and unexplained - he only wants a little discretion. Why? Does he worry that the Commission can't handle the responsibility for full discretion? Again, why? I wonder if greater powers suggested this very limited recommendation out of a lack of "trust", namely trust of future Commissions not hand-picked by this Dem-dominated Congress. No matter the explanation, it is curious indeed to see a Commissioner ask Congress to extend his Commission limited discretion.
- Adler devotes considerable space to sale of children's clothing at resale shops. He ultimately recommends that charity resale shops be allowed to sell children's clothing (possibly subject to posted Proposition 65-like warnings, see footnote 88). Adler's logic in this section is puzzling to me. Is Adler trying to defend children or defend the CPSIA? He concedes that clothing has no history of causing injury from lead but is apparently troubled that it cannot be proven that a child couldn't be harmed by clothing. Incredibly, he resolves the dilemma by distinguishing between resales made by charity shops and by for-profit shops, leaving the latter out of his proposed exemption. So is he approving the sale of unsafe products by charity resale shops to poor people so they can stay warm? Or is he saying that the clothes are probably safe, but can't be sold by for-profit stores for . . . what reason? If the clothing is safe to sell, sell it . . . and if it isn't, don't. WHO sells it shouldn't matter. But apparently it does.
An aside: Mr. Adler uses some strong language to discuss those of us who have pushed back on this law: "As I have waded into the debate, I have encountered many thoughtful, sincere, and anguished concerns about the CPSIA. I have also heard numerous overheated arguments, scanned many bloviating blogs, and read great numbers of error-laden emails (and letters) commenting on the law." For those of you who don't know this SAT word, "bloviating" is defined as "[to] discourse at length in a pompous or boastful manner" on dictionary.com. I wish our government officials would stick to the issues and avoid attacking the exercise of Free Speech by U.S. citizens. This is particularly the case here, since after a long fight, many of those bloviaters have been proven right. I don't expect thanks, but I think this is out of line.
I could go on, but I won't. Mr. Adler's voice in the debate is an important one and I appreciate his efforts to set the record straight. I don't agree with him and appreciate the opportunity to reply.
You be the judge!
Monday, January 25, 2010
"My own take is the vote for Brown was not so much a vote for or against policy or party, as it was a vote against the process itself. People don't like the political games, and they've lost confidence in a bumbling bureaucracy that since Katrina can't seem to get out of its own way. Why trust the government with a complicated health care proposal, when it can't catch a terrorist whose own father tried to turn him in? It will take the perseverance of Job and a lot of political courage, but if the two sides could somehow pay less attention to the voices on the fringes of the left and the right, take the Massachusetts voters' advice, and sit down together to see what they could agree on, who knows? They might get something done! They couldn't do worse. They might even like it - and I don't need a poll to tell me the rest of us surely would." [Emphasis added]
Hmmm, Mr. Schieffer has a point. I hope that Congress and others are not so myopic to believe that this message is just about health care. The daily stress event of reading the front page of the paper confirms that vitriol is the new drink of choice for the Obama Administration. The CPSIA saga is another one of those acidic partisan divisions that led to voter revolt. It's time to recognize that the process is a big part of the problem here.
The Brown election can be seen as a direct rebuke to the CPSIA process but the risk remains that the point might be missed by You Know Who, the CPSC Commission and other parties at interest. There is little sign of any contemplation on this point yet. The stridency is still there. For instance, BNA reported that some consumer advocates were jolly satisfied with the secrecy of the process to prepare last week's report to Congress: "Rachel Weintraub, director of product safety and senior counsel at Consumer Federation of America (CFA), told BNA Jan. 7 that a public meeting is not necessary since the recommendations were made public once they were submitted." I guess sunshine doesn't work for consumer advocates all the time, especially if it might weaken their powerful grip on the CPSIA.
If the parties supporting the CPSIA have no room to compromise on anything and will twist into any pretzel-like shape to prop it up, we're not going to get anywhere . . . and the anger of the voters will mount. The message from Massachusetts was loud and clear - to those that aren't deaf.
Now we will see who was listening.
Wednesday, January 20, 2010
Let's not forget that in 1972 the Federal Government created a little known agency to handle "threats" like this, namely the Consumer Product Safety Commission. Congress gave the CPSC the authority it needed to do its job. Oddly, today our Democratic-dominated government seems to think that only it can solve safety problems and further must LEAP into action to save us. I question this. Perhaps the CPSC even questions this.
Even more remarkable is the Dems persistence in pursuing a CPSIA strategy to "stop this cold". Have these Senators learned nothing from the last 18 months of CPSIA chaos and pain, preferring instead to continue legislating without research, hearings or contemplation? Well, the approach "worked" once before and they did read an AP story about it. . . .
Someday these Senators will be up for reelection. Mark your calendars!
Here's their letter for your reading pleasure:
Sent: Tuesday, January 19, 2010 12:16 PM
Subject: Cosponsor the Safe Kids' Jewelry Act - keep cadmium out of children's jewelry
Senators Schumer, Nelson and Klobuchar are seeking cosponsors of the Safe Kids’ Jewelry Act. A copy of the draft bill is attached. Please let Stacy Ettinger in Senator Schumer’s office know, this week, if your boss would like to cosponsor the bill or if you have any questions about the bill.
Also, appended below, please find the January 10, 2010, by Justin Pritchard on the Associated Press’s investigation into use of cadmium in children’s jewelry and the adverse health effects of cadmium exposure (http://www.msnbc.msn.com/id/34793600/ns/health-kids_and_parenting/print/1/displaymode/1098/ ).
SUPPORT THE SAFE KIDS’ JEWELRY ACT
Protect Children from Exposure to Cadmium and Other Toxic Heavy Metals in Children’s Jewelry
We write to request that you consider cosponsoring the Safe Kids’ Jewelry Act. We believe that this bill is vital to protect children from exposure to cadmium and other toxic heavy metals in children’s jewelry. The legislation would prohibit the manufacture and sale of children’s jewelry – including charms, bracelets, pendants, necklaces, earrings, or rings – containing cadmium, barium or antimony.
Cadmium is a soft, silver-white metal that typically is used to manufacture pigments and batteries and in the metal-plating and plastics industries. Cadmium is a known carcinogen and studies show that direct exposure has adverse developmental and reproductive effects and can lead to kidney disease, among other health problems. Infants and young children are particularly vulnerable to the dangerous effects of cadmium and other toxic heavy metals. Children’s growing bodies absorb these metals at much higher rates than adults and long-term cumulative exposure increases toxicity.
This legislation is needed because test findings show a growing presence of cadmium in children’s jewelry as foreign manufacturers switch from lead – now banned in children’s products – to cheap substitute metals. In lab testing for a recent Associated Press investigation, chemists found significant use of cadmium in a variety of charms, bracelets and pendants sold at several popular retail stores.
In addition to banning children’s jewelry made with cadmium, barium or antimony, the legislation provides for enforcement of the ban, as well as further study on whether other heavy metals should be banned for use in children’s jewelry or other children’s products. Specifically, the bill —
· Protects children. Children are most vulnerable to the health risks from cadmium and other heavy metals. The bill bans the manufacture and sale of children’s jewelry containing cadmium, barium or antimony marketed for children ages 12 and under. Products covered by the ban include charms, bracelets, pendants, necklaces, earrings and rings. The ban would take effect 90 days from enactment of the legislation.
· Gives the CPSC flexibility to designate the most effective testing and certification requirements. The bill gives the Commission authority and flexibility to set stringent, effective testing and certification requirements for manufacturers to ensure the safety of children’s jewelry.
· Sets criminal and civil penalties for violations. Children’s jewelry containing cadmium, barium or antimony would be considered a “banned hazardous substance” under the Federal Hazardous Substances Act (“FHSA”). The bill mandates application of criminal and/or civil penalties under the FHSA for any violations of the Safe Kids’ Jewelry Act. The bill requires the Commission to report annually to Congress on its actions to enforce the Safe Kids’ Jewelry Act, as well as whether the Commission imposed any criminal or civil penalties for violations of the Act.
· Does not preempt State or local law. A significant number of States and localities across the country are now considering enacting laws to ban sales of children’s jewelry containing cadmium and other heavy metals. The bill makes clear that the Safe Kids’ Jewelry Act would not preempt State or local laws relating to regulation of products containing cadmium, barium or antimony. The bill also clarifies that the Safe Kids’ Jewelry Act would not affect any enforcement action or liability of any person under State law.
· Requires CPSC to report to Congress regarding heavy metals which should be banned from children’s products. The bill requires the Commission to study and report to Congress within one year on whether other heavy metals should be banned from use in children’s jewelry or other children’s products.
We hope you will join us in supporting this bill. If you have any questions about the bill or would like to cosponsor the bill, please contact Stacy Ettinger in Senator Schumer’s office (4-7945 or firstname.lastname@example.org); Clint Odom in Senator Nelson’s office (email@example.com); or Jonathan Becker in Senator Klobuchar’s office (firstname.lastname@example.org).
Charles E. Schumer
Monday, January 18, 2010
The Report and the accompanying statements make interesting reading. I do not propose to summarize the documents here, but have set out a few thoughts:
a. The Commission's Consensus is Important. The Commissioners made a big effort to speak with one voice in the report. While they certainly did not agree on everything, their effort to achieve bipartisanship agreement in the report sends a good message. The Commission needs to work harder to find this middle ground more consistently and less fractiously. There is NO JUSTIFICATION for turning safety into a game of political football. If the Commission can work better together, confidence in their administration will grow and extremes will be avoided.
The prohibition against full Commission meetings in private (the Sunshine Act) is a hidden factor in the report. Since the Commission ill-advisedly voted down a public discussion of the report, the Commissioners were prevented from meeting in groups of three, four or five. When you read this report, imagine how it might have read if the five Commissioners were allowed to sit in a room and duke it out. It might have been a better document, more complete and more prescriptive.
b. Where's the Functional Purpose Exception??? The report is as interesting for what it DOESN'T say as for what it does say. Most importantly, the functional purpose exemption is GONE. Rumorville has it that the functional purpose exception became more and more ornate and complex as the Commissioners struggled to write a recommendation until even its most ardent supporters had to concede that it wasn't going to work. This was set up to be Waxman's excuse to do nothing or nearly nothing. It's not there anymore.
Too bad for Henry, huh?
c. The Commissioners' Statements Reveal that Common Sense is Divided on Party Lines. The Commissioners' statements reveal a lack of communication within the Commission. I know they were talking but it appears that some messages weren't being heard. The statements of the two Democrats (Moore apparently did not prepare a statement) were straight out of Central Casting. Disappointingly, Ms. Tenenbaum chose to repeat a fairy tale about the law's origins:
"In response to the flood of dangerous imported products, which were involved in tragic fatalities, poisonings and injuries involving children, Congress closely examined the needs of the CPSC and the statutory changes necessary to enhance the regulatory safety net maintained by the agency. Congress spent considerable time reviewing these needs and continually consulted with the agency’s leaders, staff, consumer groups, and the regulated community in order to carefully craft the proper legislation to achieve this end. Seeing a clear need to reauthorize and reinvigorate CPSC with new energy and purpose, Congress passed a sweeping law." [Emphasis added]
The re-characterization of what was essentially an anger-fueled legislative mania into some sort of group hug is apparently the Democrats' effort to justify a passive or inert approach to fixing the law. In addition, both Tenenbaum and Adler repeated the misleading togline about the dangers of lead, although I don't think that's news anymore. It's also not really relevant to discussing the issues under the law - and their persistent refusal to acknowledge this is disappointing.
The Republicans (Nord and Northup) delivered rational and balanced statements that calmly and appropriately diagnosed the issues with the law. They are cognizant of the excesses of the law, the dramatic impact on both the regulated community and the hobbled agency itself. The Reps make no effort to prop up the CPSIA - you know, the law passed by REPUBLICANS AND DEMOCRATS ALIKE. There's no pride of authorship by the Reps - to their credit, these Commissioners seem to be trying to restore a rational system of law and regulation designed to provide appropriate levels of safety at an affordable cost.
I am tired of the Dems on the Commission simply being good Dem soldiers rather than committed stewards of safety. The ANGER expressed in Massachusetts today is a strong message to the Dems - America is sick and tired of government aggressively inserting itself into every aspect of our lives, including by way of the CPSIA and its precautionary principle. See tonight's Wall Street Journal for more details. It will be interesting to see if Massachusetts impacts the CPSIA amendment process.
d. Does it Matter What's Safe Anymore? I am struck again by the absurdity of the debate over lead. As I see it, the debate is over which incidents of lead that are illegal should be permitted. This is different from defining what constitutes safe lead. This used to be a simple decision. Now the premise is that there is NO safe level of lead. Is that really TRUE?
Think of ALL cases where lead is found in children's products. Now separate them into two piles, one that is labeled "safe" and one that is labeled "not safe". How do these piles compare to the piles made by the CPSIA, FHSA and CPSA? Well, that question never comes up in the debate. The big question is about compliance with law, not safety.
This is not a rational system for administering risk. First of all, if lead were so deadly that it needed to be eliminated in all cases in all children's products, then presumably we would be even MORE motivated to remove it from our food, water and air (not to mention dirt). After all, we consume food etc. and the lead in the food gets into our bloodstreams. But this isn't an issue today because the CPSIA didn't make it illegal - and apparently the CPSC does not feel lead is dangerous in food, water or air (or else it would have acted on the threat under the FHSA). It gets worse - consider that lead paint is illegal on children's products but not on cars. If lead is so dangerous and mere contact with lead-in-substrate is so dangerous that it is utterly intolerable in a modern, sophisticated society likes ours, then why does the CPSC permit kids to touch or even ride in cars? After all, the zipper pull on a kid's golf bag is illegal if it has a dot of lead paint on it. But a whole car dripping with lead paint, that's fine.
The answer - it doesn't matter what's safe when it comes to lead, it only matters what's legal. The Dems prefer to portray what's illegal as unsafe, and imply that what's legal is safe. [Call this the All-Knowing Congress argument.] It's hard to take this seriously. It's time for them to drop the precautionary principle pretense and start being accountable for the rationality of their regulatory positions. If lead is a crisis as they say, then please ban everything with lead in it, including our entire food chain. I am ready to be safe, finally.
e. What Has Been Accomplished in the Last 18 Months??? Does it bother you as much as me that so little has been accomplished by the last 18 months of chaos? The many steps and achievements documented in the report and statements might make a bureaucrat blush with pride but how have injury statistics changed? [Recall statistics are a poor measure of the effectiveness of safety rules.] How much did we pay as a society for these extremely meager achievements? If you add in the cost to our society of a crippled safety agency, the price we paid is staggering. The waste is sickening. It's not possible for me to read the recounting without a sense of loss.
f. Does Anyone Else Want An Exemption? Umm, Yeah! It's important to note that the low number of exemption requests does not reflect a lack of interest in exemptions. Exemption requests are very expensive to prepare and are complex. In many cases, the exemption request will obviously be rejected or is too broad to state in any compelling way. For instance, educational products span so many categories that it is impossible to state a coherent exemption request. More importantly, the real inhibition to filing is a fear of losing the request. For many companies, it just doesn't pay to ask for permission - they prefer to beg for forgiveness if a problem ever arises.
Anne Northup correctly notes in her statement that it is bad law to require that regulated companies line up for exemptions. She is not arguing on behalf of the companies - she focuses on the huge burden these requests place on the CPSC and the Commission. She is TOTALLY correct. The idea that we should have a safety system based on exceptions would only appeal to the IRS. Somebody needs to listen to Northup on this point.
g. The Report Whitewashes Ineffective Help for Resale Shops. It is a sad joke to assert that coaching resale shops with the CPSC's guidance document and a few workshops is somehow a solution to the massive problem caused by the CPSIA. For one thing, it is quite clear that this message has not reached its audience. The CPSC's approach is inherently inefficient and unlikely to bring relief to many affected stores. A better law is the necessary solution. Second, it is apparent that the CPSC's efforts did not relieve anxiety - the stores are still dropping children's items. This lack of accountability begins to look cynical when you consider that only last week, Scott Wolfson was warning people not to sell cheap jewelry on auction sites or in resale shops. Hmmm, that sounds very reassuring, doesn't it? Problem solved!
If the Commission truly cares about resale shops, then a more effective approach (including a communication strategy) needs to be implemented.
With the issuance of the report and statements, the shuttlecock has been batted back to Congress. The next step is to work on a long-needed amendment of this awful law. Stay tuned.
Thursday, January 14, 2010
The Post concludes: "So, while this is certainly no matter to pooh-pooh, and it's important for the government to take whatever steps it must to keep poisonous metals out of the marketplace, it doesn't sound like occasion to panic, either." [Emphasis added]
We knew that Senators are absolutely ignorant of science so their foolishness can be understood, but what about the CPSC? Aren't they on a different level? In the olde days, the CPSC used its professionals for their highly-refined expertise. Today, the staff brainiacs are used to bureaucratically shovel paper from one end of their desk to the other, or to practice falling in line. The folks at the top, the (Democrat) politicians, seem to have the same mastery of science as their Congressional overlords and a similar disregard for the consequences of their actions.
So Inez Tenenbaum went on a media blitz, ably assisted by her associate Scott Wolfson, and SLAMMED the jewelry industry. They had seemingly done virtually no homework (if reading an AP story doesn't count as "research"), neglecting to take advice from the many Ph.D.s that they employ, and went ahead with an astoundingly irresponsible spree of rulemaking on the fly. And the consequences to them?
There's the rub - there won't be any. But there should be. This kind of tort is remediable in the private sector with lawsuits and damages. Not sure how easy it would be to prosecute such high ranking public officials for their conclusion-jumping. We can certainly count on our fearless leader Obama to COMMEND them for their precautionary actions. Surely by putting the jewelry industry out of business, they must have saved lives . . . somewhere. The nice thing about these folks, if they can assert it, it's "true". Or true enough.
What a sorry episode, and even with the Post on record with a calming and balanced summary of cadmium's risks, the train already left the station. Expect the next attempt at an amendment to the CPSIA to include dramatic restrictions on cadmium. Congress will save us, don't worry.
Hey, science is overrated. Trust me.
"Jumping on a report about toxic levels of cadmium in children's jewelry from China, Sen. Amy Klobuchar is pushing for a hearing on the issue. Klobuchar, D-Minn., sent a letter Tuesday to Senate Commerce Committee Chairman Jay Rockefeller, D-W. Va., that says, in part, 'this metal has no place in children's toys.'" [Emphasis added]
Jewelry . . . toys . . . it's all the same, isn't it? Heck, when you're saving children's LIVES, these piddling details are merely the hobgoblins of little minds (Ralph Waldo Emerson must have been from Minnesota). If her heart is in the right place, who cares if she has any idea what she's talking about?
Not one to let down her adoring public, Ms. Klobuchar shared some of her expertise on the CPSIA and toxins: "Citing [the CPSIA], Klobuchar wrote that although there are 'currently no cadmium restrictions on toys and jewelry, cadmium is a poison and if ingested, can hinder brain development and lead to other health problems in children.'"
This is, strictly speaking, not true. Well, how can you expect Klobuchar to actually check a factual statement like this? She is one busy Senator, there's no time for dilly-dallying. It's not like she's a lawyer (oops, she is!) or actually participated in writing the CPSIA (oops, she did!) and voted for it (oops again, she did). She probably even read the law at one time (oops . . .).
One of the brilliant changes put through by Ms. Klobuchar and her Congressional brethren in the CPSIA was the codification of ASTM F963 (Section 106 of the CPSIA), the formerly-voluntary standard of the toy industry. This document (it's really long, don't blame her for not leafing through it) imposes a requirement of not more than 75 mg/kg of cadmium in toys. The CPSIA even required the CPSC to examine the effectiveness of the ASTM standard within a year . . . and they did it without changing any requirements relating to heavy metals. But that was before the latest headlines.
Of course, Ms. Klobuchar was simply joining the fun along with Senator Schumer who introduced anti-cadmium legislation to save us, and Chairman Tenenbaum who encouraged people to rip jewelry off the necks and wrists of their kids: "We have proof that lead in children’s jewelry is dangerous and was pervasive in the marketplace. To prevent young children from possibly being exposed to lead, cadmium or any other hazardous heavy metal, take the jewelry away." [Emphasis added] Joe McCarthy would have loved this free-for-all.
Even the AP is now scratching its collective head. The same AP reporter issued a new article today puzzling over the panicked regulators: "When pressed, Tenenbaum's spokesman Scott Wolfson explained parents should grab the trinkets and toss them. Just be sure to 'safely dispose' of the merchandise under applicable state and federal environmental law." [When I read quotes like this, I think if there wasn't a Scott Wolfson at the CPSC, we'd have to make one up.]
The AP article carries on: "So what are America's Moms and Dads to do? While neither Tenenbaum nor Wolfson would outright say not to buy cheap children's jewelry, that inference was clear, too. A tough conversation around the kitchen table: don't buy any new stuff, don't give out any new stuff, don't play with the old stuff. In fact, get rid of the old stuff, but in a manner that doesn't risk putting toxins from the jewelry into the environment. And make sure you don't go out and resell the jewelry through online auctions or to a thrift store, said Wolfson." [Emphasis added] Wolfson has a way with words, doesn't he? Reporters must love him . . . .
The AP sums it up: "So instead of focusing in on specific items, as a recall would do, the CPSC officials are taking on an entire industry. . . . [The testing for AP] only looked at 103 pieces of low-priced children's jewelry — finding 12 items with cadmium content above 10 percent of the total weight. . . . Clearly, the CPSC is worried beyond those limited test results. Even during the height of product recalls from China several years ago — when millions of items of jewelry or painted toys with high lead levels were taken off store shelves — the CPSC did not issue such a public warning. Under the administration of President Barack Obama, and with Tenenbaum replacing commissioner Nancy Nord atop the agency, the CPSC is projecting a much more aggressive image." [Emphasis added]
Cooool under fire! I think the CPSC isn't going far enough. It is clear that we in industry do not measure up to our leaders' high standards and expectations. Imagine having to wonder what will be in the paper every morning, the pressure, the angst. [If it's in print, it must be true - just ask the Zhu Zhu Pets folks.] So, to avoid all that stress, I recommend that the CPSC take the bold step to make everything illegal. We should be required to turn over all of our possessions to the government for safe disposal according to applicable environmental protection laws and then move, naked, back into the caves where things will be much safer. This should make things simple and besides, the enforcement and legal staff create NOTHING BUT WORK for the Commission. My heart bleeds.
But wait, that won't make us safe just yet. Cadmium is in our food, in our water, in our air, in cigarettes, in batteries and fertilizers, in our workplaces - horrors! I just had an epiphany - Cadmium is so ever-present in our environment that it must be the cause for human mortality. There, I put that sentence in writing and published it - so it must be true. The CPSC therefore should ban food, water and breathing. It's the only thing they can do to save the human race.
And I used to think we had too much government. You ain't seen nothin' yet, baby. . . .
PLEASE NOTE - This essay is not a defense of cadmium. That's becoming a tiresome objection, frankly. Cadmium is bad, okay? Back to the story . . . .
The AP story, backed up by test reports that AP will apparently not release, prompted Senator Chuck Schumer to introduce legislation on Wednesday, two days later, to "stop it cold". After an equally lengthy deliberation and careful consideration of the flimsy facts of this case, Chairman Inez Tenenbaum of the CPSC made this astounding announcement today:
"Because of these recent developments, I have a message for parents, grandparents and caregivers: Do not allow young children to be given or to play with cheap metal jewelry, especially when they are unsupervised."
Whoa! Tenenbaum is saying that consumers should boycott ALL "cheap" metal jewelry now? Is she trying to put Claire's Boutique and countless thousands of other small companies out of business entirely, all because of the unconfirmed accusations of an AP reporter about a handful of pieces of jewelry from a tiny number of sources? Within 48 hours, too? I think that's irresponsible.
Yes, it's irresponsible, but that's the way this populist government of reactive politicians wants to govern. The Obamites are apparently shocked to discover that anything ever goes wrong, and if they ever find a single fly in the ointment, they then assume they are facing a broad scale assault. Hence, the immediate action to implement bans and cessations of trade.
Stop it cold, indeed - but what exactly is being stopped? Trade. Jobs. Futures.
Even worse, frankly, is the notion that this problem must be "solved" by legislation. While Senator Schumer was simply doing the usual, pandering for votes, where is it written that this problem is best resolved by Congressional action? [Let's put aside the niggling detail that some further assessment of the nature of this "dire" threat is appropriate before we take ANY action whatsoever.] Apparently, Mr. Schumer believes it's his job to fix this problem and that in the absence of his decisive action, the rest of the government would fall on its face.
Umm, well, we used to have a federal agency for this very task, the CPSC. Okay kids, gather 'round, let me tell you about a long ago time when the CPSC had actual authority to assess risk and depending on its independent judgment, was entitled to draft and implement rules governing safety in the marketplace. Wasn't that a wonderful time, kids?! Well, not anymore. Nowadays, apparently only Congress can exercise judgment. And that judgment is best exercised without the use of any scientific advice or reliance on the agency charged with the responsibility for safety administration.
Courtesy of the CPSIA, the CPSC is now a bureaucracy designed to serve the will of the politicians - determining what is safe (and what is not) is not their primary job anymore. Congress has no use for Ph.D.s or other people that actually understand science. With folks running the show like Chuck Schumer who apparently believe that an AP story is a perfect substitute for expert advice, there is no need for the CPSC to do anything other than fuel panic for Congress to assuage. Hence Ms. Tenenbaum's shocking announcement today.
This is completely wrongheaded and will damage markets almost immediately. It's all the more amazing because we have been here before, and paid the price with two years of chaos, misery and pain. The lessons of the CPSIA apparently weren't learned, and to judge from the knee-jerk reaction to the AP story, it appears unlikely that this group of politicians (Democrats) and administrators are capable of ever mastering them.
Remember, I think cadmium is bad. But bad is no justification for legislation or rulemaking on the fly. This is not a sudden and life-threatening crisis. This metal, while undesirable, was probably in the market for years, all without poisoning large swaths of American children. The story of the little boy in Minnesota who swallowed a jewerly bangle and died (monotonously repeated by Senator Amy Klobuchar and now by Inez Tenenbaum), sad as it is, should be retired. I have no interest in seeing the children's product industry put out to pasture just because of one accident.
Someday I hope we can restore some sense of proportion and restraint in safety administration. It can be done. . . .
Wednesday, January 13, 2010
Late last week, I published my recommended changes to the law and my list of other changes to process and procedure at the CPSC that I believe are necessary to restore rationality to the safety law governing children's product safety. It is important that you also express your views on this topic to the Commissioners. There isn't MUCH time left to influence the Commissioners but it's worth a try. You are welcome to use my list for inspiration or as a shortcut.
The Commissioners' email addresses are:
Inez Tenenbaum: email@example.com
Robert Adler: firstname.lastname@example.org
Thomas Moore: email@example.com
Nancy Nord: firstname.lastname@example.org
Anne Northup: Commissioner_Northup@cpsc.gov
Monday, January 11, 2010
Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.
CPSIA Casualty of the Week for January 11, 2010
NEW SAFETY LAW CLEANING OUT "THE KIDS CLOSET"
Kitty Boyce worked for 18 years to build her resale shop, The Kids Closet, located in Rochester, IL, into a well-known resale shop. With its colorful signage, brightly decorated interior and whimsical whale logo, The Kids Closet built its reputation on offering customers quality second-hand children's products at great values.
Shortly after being voted the "Number One Place to Shop Resale" by the Illinois Times, Kitty announced that because of CPSIA she was converting her store to sell predominately teen and adult clothing, home accessories and furniture, and changing its name to Remarkable Resale. The loss of revenue in her shop due to the changes in inventory forced her to lay off several employees.
"CPSIA has been devastating for us," said Kitty. "We just decided to get rid of all the toys and furniture. It's just not worth the risk."
While the Consumer Product Safety Commission has temporarily stayed requirements for testing and certifying products, all resale shops still must comply with the new lead and phthalate standards. Realistically, resale shops cannot be 100 percent certain that the used items meet the new requirements.
Due to the over-reaching law, Kitty Boyce's dedicated attempts to provide children and families with reasonably priced, gently used baby equipment, furniture and toys have been shut down. For Kitty and others, the risk of enforcement action by state attorneys general or private groups is too great. The result is that during one of the worst economies in decades, resale shops around the country are avoiding selling winter clothing for kids and other children's products.
This winter, ask Congress how denying a perfectly safe used winter coat to a child whose parents can't afford to buy a new one is protecting that child's health.
For more information about Kitty Boyce, visit http://www.thekidscloset.net/closet.htm
For additional information on the Alliance for Children's Product Safety and CPSIA, and to view previous "Casualties of the Week, visit http://www.AmendTheCPSIA.com/.
“Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.”
“The price of apathy towards public affairs is to be ruled by evil men.”
"The demagogue is one who preaches doctrines he knows to be untrue to men he knows to be idiots."
As a preface, it's important to note the following:
a. My suggestions for legislative and non-legislative changes will have NO material negative impact on safety. It is my fervent hope and intention that these changes will improve results for the agency.
b. It is critical that the agency be well-functioning after amendment of the law. In my legislative changes, I have placed a priority on cleaning up purposeless complexity and tasks that are not critical to the mission of supervising safety. It is essential the CPSC have a set of ordered priorities – because if everything is important, nothing is important. In my non-legislative changes, I propose prioritized resource allocations to improve focus on real drivers of behavior.
c. I believe the agency must reestablish a basic sense of what is safe and what is not safe. Judging from recent decisions of the Commission and recent recalls, I think the line between “safe” and “unsafe” has become blurred. Being careful about safety does NOT imply a fear of “everything”. I have tailored my legislative recommendations to focus in on REAL safety risks – only. In my non-legislative recommendations, I have focused on resource allocation, outreach/education and better communication with the regulated community, striving for constructive dialogue rather than behind-the-curve reactivity.
My list of non-legislative changes:
- Liaison office to manage Q&A with regulated companies. “No name” inquiries should be permitted. This office should be staffed adequately to ensure timely replies.
- Amnesty program – if a regulated entity turns itself in before it is notified that it is being investigated, the regulated party may NOT be penalized.
- Industry Outreach/Education – as a TOP priority, the CPSC must create an educational outreach program to sensitize industry to safety issues and to educate regulated companies on their legal obligations and on good safety practices. This office should operate independently of enforcement staff or activities. On-site training should be offered for free.
- The CPSC website should be reworked to meet best standards for access to information. The current website is quirky and difficult to navigate.
- The agency should reexamine its allocation of resources according to severity of threat, and then reorganize its assets in line with threat priorities. Threat level teams should be separately staffed and tasked, with timeliness of processing a top priority. If resources are allocated properly, the concept of a “queue” can be abandoned in favor of objective expectations on how threats are processed by the agency. The teams should be resourced independently, as though they were separate agencies (e.g., the "high threat" team would have different lab resources than the "medium threat" team).
- Industry self-regulation should again become the principal strategy of the agency to manage markets.
The task of properly allocating resources within the agency to bring about good results in the marketplace is far more important than having draconian rules on the books. With the scheme I recommend above, the CPSC would be in the optimal position to focus on real threats and to buttress safety against evolving threats. A revitalized agency focusing on high impact activities and structured to respond quickly and insightfully against emerging threats will make the CPSC a model agency within the Federal government.
It can be done . . . with some courage, some vision and a sense of conviction. The time is NOW.
Sunday, January 10, 2010
Readers of this blog are well-aware of the mounting ANGER over this astounding indifference to the facts of the awful CPSIA and to our suffering. The latest low point engineered by Democrats is the Commission's failure to approve public discussion of the recommended changes to the CPSIA, a report due next Friday. This is no small issue - read my post from yesterday for a summary of legal changes necessary to restore sanity to safety administration in children's products - yet the Dems apparently feel discussion of these issues in front of you might somehow limit their discretion. Huh? It is very tempting to believe that handlers from Congress (Guess Who) have given strict instructions to the Dem Commissioners that there will be NO public debate of these issues. And there won't.
These blows to our faith in government raise serious questions of character. Leadership is accountable to the American public. A failure to operate openly and with an open mind is intolerable. People will not forget.
I understand that bipartisan meetings between Congressional staffers and the CPSC have been cancelled or postponed until the report is issued. Furthermore, I believe that Mr. Waxman is already circulating new language for his amendment redux quietly, sans hearing or public discussion. Connect the dots - the Democrats have decided what the report will say (they have the votes to ram it through), it has been pre-approved by Guess Who (which means it will not fix the CPSIA because the Dems on the Hill don't care about our little problems) and a public discussion between Commissioners is pointless. As the self-appointed Prince of "Darkness", Bob Adler, put it, "I think the positions at this point are pretty firmly set." Right - set by Guess Who. Discussion in public will only embarrass the Dems on the Commission - they are only allowed to read from the script and will be unable to defend loopy positions without looking loopy themselves.
If all of this has not fully eroded trust in these folks, let's not forget that we are not living in a vacuum. The behavior of the Dems on other issues is part of the milieu. These same "leaders" are making other messes for us to regard, such as Harry Reid's "apology" for incredibly racist remarks about Obama's skin color and "dialect". OMG, can you believe the shamelessness? The Dems made everything nicey-nice by Obama and Al Sharpton forgiving Reid's "poor choice of words". Please, you can't say something like that without thinking it, and if you think it, you are a bigot. Plain and simple. No apology will cover up this disgusting fact. ANY person in a minority will tell you that prejudice is deeply rooted, and no apology will rid the system of that poison. Reid's apology rings rather hollow to me. And he's the voice of the Dems in the Senate.
And then there's health care. To protect you, Mr. Obama and the jackals crying out for health care reform have insisted on taxing "Cadillac" health care plans. This sounds "bad", right - like someone's getting something they don't deserve, all at your expense. More benefits for "fat cats", right? A great sound bite for the saviors to make their case . . . .
That's what Obama and the other Democratic do-gooders are all about, making things fair for "regular" Americans, isn't it? Well, Fortune Magazine has a different slant on this critical term in the Obamacare plan - namely, that the tax on so-called "Cadillac" plans will mainly punish the elderly. Why? Well, here's a shocker, more expensive health care is generally health care delivered to sicker populations, like older Americans. Here's an example of a plan that crosses the Cadillac boundary: "Now to Medicare -- no Cadillac plan -- which will spend about $510 billion this year to cover fewer than 46 million people. That's more than $11,000 a person, well over the Cadillac threshold of $9,850 for single retirees 55 and up. And that's without counting Medigap coverage (for which I have no numbers), which would send the average higher." Right - Medicare, the health plan for older Americans. While the health care proposals do not tax Medicare, the math makes it clear that care for older populations costs more and may well be subject to the new tax.
I am sick of the misleading messaging, the manipulation, the indifference, the obstruction of this crop of Democrats. I have no idea if the CPSC Democratic leadership will rise to the occasion and do the right thing or whether the House and Senator Democrats will wake up to the terrible mess they made and take the appropriate steps to fix it or whether (as seems likely) the fix is in and we are cooked, but this much I DO know - I am sick of this treatment. I cannot support this kind of leadership and cannot abide by it.
The Democrats have made this mess entirely themselves. No one forced them to be so deaf and so indifferent. No one required their arrogance, high-handedness or insensitivity to the misery that they caused. When November 2 comes around and the American people exact their revenge, the party leadership will have no one to blame but themselves.
I look forward to that day.
Friday, January 8, 2010
My list of changes is long. I have a separate list of non-legislative changes that I also recommend, which I will pass along in a future post. Please note that my list is not meant to imply any limitation on the agency's ability to respond to emerging threats or changing conditions. In that sense, each recommended change is intended to incorporate a power by the CPSC to alter it (expand or contract) according to a risk assessment process in the future. It is also true that some of these recommendations can be accomplished by agency rulemaking. As we have observed, that rulemaking is taking forever or is seemingly stuck . . . so I put them all on my list.
I have a couple of other important objectives underlying my recommendations. First, it is critical that the law provide economic incentives tailored to the actual drivers of market behavior. The current law gives little credence to the way business people make decisions or how they interact. The CPSIA takes the simpleminded approach of ultra-strict standards combined with draconian penalties. This is ironic, given that the 2007/8 recalls that incited this law were EACH violations of then current law. Thus, it was NEVER a question of standards - only of compliance with those standards. Compliance issues are complex behavioral issues. Simply ratcheting up penalties to the stratosphere won't change behavior much because the consequences of recalls were already very great. Something else is needed.
Second, we MUST assure that the agency is relieved of excessive bureaucratic burdens and distractions, and is given back the ability to focus on real threats. This means that we cannot always work within the context of the present CPSIA scheme, because it requires a great deal of wasteful investment by the CPSC. In addition, we must give discretion back to the agency. Congress needs to get out of the way and let the CPSC do its job.
My recommended changes to the CPSIA:
1. Restore the CPSC’s authority to base its safety decisions, resource allocation and rules on risk assessment.
2. Definition of “Children’s Product” should be limited to children 6 years or younger. The argument that young children play with the toys or possessions of their older siblings is not supported by statistically significant injury statistics. If children are not being harmed by this interaction, we should not have to spend billions on safety initiatives that will have little impact.
3. Definition of “Toy” (for phthalates purposes) should be limited to children 3 years old or younger. Human factors analysis by CPSC staff indicate that it is not age-appropriate for children over three to mouth their possessions. Again, there are no statistically significant injury statistics that support a contention that children over three have any material risk from mouthing toys.
4. Definition of “Toy” should explicitly refer only to products in the form used in play. This would eliminate uninflated globes from the mouthing rules. In addition, sleepwear should only be included in childcare articles to the extent the plasticized part of the sleepwear is intended or is reasonably foreseeable to be mouthed.
5. Definition of “Children’s Product” should eliminate the factor set forth in Section 3(a)(2)(c) of the CPSA. This change is intended to make determining which items are “in” and which are “out” more objective. The Commission already has in place age grading guidelines that supplant the “common recognition” factor and provide objective guidance.
6. Definition of “Children’s Product” should be limited to a narrow class of product, ideally just toys. There is no justification based on injury statistics to regulate apparel, footwear, appliqués, hair accessories, books, pens, bikes, ATVs, educational products, rhinestones and so on. Much of the morass befalling the agency over the past two years stems from this overly-broad definition.
7. Definition of “Children’s Product” should not include anything primarily sold into the schools or which is used primarily under the supervision of adults.
8. The standards/bans for lead and phthalates should be prospective from February 10, 2009, allowing the sale of merchandise manufactured in compliance with law prior to the implementation of the law. This is ABSOLUTELY necessary to protect the thrift store industry.
9. Make ANY AND ALL changes in standards after February 10, 2009 EXPLICITLY PROSPECTIVE, including those already implemented.
10. Phthalate testing should explicitly exempt inaccessible components, metals, minerals, hard plastics, natural fibers and wood. The statutory test standard should explicitly permit testing the entire product as a whole. California law, which may conflict with these definitions, should be explicitly preempted.
11. Eliminate the 100 ppm lead standard for August 2011. There is no scientific evidence that the change from 300 ppm to 100 ppm as a limit on lead-in-substrate will have any material impact on blood lead levels. However, the economic impact of this meaningless change could be severe - the equivalent of a high tax serving no known purpose.
12. Lead-in-substrate testing should be a “reasonable testing program”, not mandated outside testing. Ideally a combination of in-house testing, spot checking, XRF (allowed for this use) and supply chain management. The focus of the rules should be on safety, NOT on compliance. Third party testing can be included as a safe harbor for a “reasonable testing program”.
13. Small lot manufacturers are exempt from all testing requirements (but not the standards). ANY product which sells less than 25,000 units per annum is exempt from testing requirements.
14. Eliminate required future reductions in the lead-in-paint standard levels if technologically-feasible. There is no scientific evidence that this further reduction will have any material impact on health, but will have an economic impact on the marketplace.
15. Clarify that all inks are excluded from the lead-in-paint ban.
16. Modify definition of “technologically feasible” to take into account economics. It is demonstrably unfair to small businesses to apply a rule that works like this: “If Rolex CAN do it, Timex MUST do it.” A technological feasibility standard without reference to economics is completely unreasonable to small companies or companies relying on narrow margins.
17. Restore ASTM F963 to voluntary standard status.
18. Eliminate the “periodic review” provisions that require ratcheting up of requirements (e.g., periodic review of F963 to achieve “highest levels of safety” that are “feasible”). Would like to further gut this provision, as I do not see that the CPSC adds any value in the process but has significant procedural burdens. This is pure government waste.
19. Eliminate exceptions to preemption (such as Sec. 106(h)). Add effective preemption of State laws on lead and lead-in-paint. Interstate commerce demands that there be one authority on safety, not 51 independent regulators. The disorder in the marketplace from the Proposition 65-style “consumer right to know” laws (like Illinois’ new Lead Poisoning Prevention Act) needs to be eliminated by explicitly preempting them in the changes to the CPSIA.
20. Add penalties (up to and including felonies) for false or misleading accusations of violations of law or safety violations.
21. Make the resale of used product that violates safety standard a misdemeanor with very limited fines (like a traffic ticket). Can only escalate if done with actual knowledge.
22. Eliminate the “knowing” standard with its imputed knowledge of a reasonable man exercising due care. This standard is a 20/20 hindsight standard and is thus subject to considerable abuse. An actual knowledge standard would ease fears among regulated companies.
23. Completely reformulate penalties to restrict them to egregious conduct, reckless endangerment or conduct resulting in serious injury. The CPSC should have the authority to assess penalties when it deems it necessary, such as for repeated violations, but the practice should be that penalties are meant to provide incentives to good behavior ONLY (not for retribution or redistribution of wealth). Minor violations should either be handled administratively without penalties or should be subject to capped penalties akin to “traffic tickets”.
24. State AG enforcement should be limited to matters involving actual knowledge leading to injury or to enforce a CPSC order.
25. Restore the ability to export non-compliant product as long as the product is compliant with the destination jurisdiction's law.
26. Mandatory tracking labels should be explicitly restricted to cribs, bassinets, play pens, all long life “heirloom” products with a known history of injuring the most vulnerable children (babies). Tracking labels would be voluntary on all other children's products and if in use, can be used to trim scale of recalls (as with other data maintained by businesses). CPSC should retain ability to expand the application of tracking labels as warranted. The power to impose tracking labels was a part of the prior law, it should be noted.
27. Elimination of whistleblower provision entirely. There is no demonstrated need for this provision which only creates an atmosphere of distrust and abuse in the workplace. To properly ensure corporate team play, the government should refrain from paying spies to infiltrate the workplace unless there is a demonstrated need based on actual data.
28. Elimination of lab certification process ENTIRELY. The CPSC adds NO value to this process, and in fact slows the process of labs coming on board with new testing capabilities. I am not aware of any instances of fraud by labs but if there were to be fraud, we already have anti-fraud standards on the books to protect consumers. Give the CPSC the power to create or modify certification standards or requirements if warranted in the future. Place reliance on industry organizations or independent professional organizations for certifications.
a. For in-house labs, use established firewall rules as “but for” condition for companies to avoid liability. Otherwise, companies should bear full responsibility for testing done in-house.
29. Public injury/incident database restricted to recalls only
a. If allow unfiltered postings, companies need adequate time to respond BEFORE posting. There needs to be enough time to allow for inspection of product and to conduct tests.
b. Must post name and contact info to put info up on the DB. NO anonymous postings
c. Liability for fraud, including fines and possible jail time. Need to prominently note this on the DB. There needs to be a consequence for bad actors spreading bad information intentionally.
d. The terms of the DB should not permit postings of CPSC private remedies, like “do-not-sell” orders.
e. The current timetable is unreasonable, needs to be spread out to allow for more consideration of unintended consequences.
f. The current rules specify removal of inaccurate data that is TOO SLOW. Data needs to be impounded while being investigated (Zhu Zhu Pets wouldn’t have survived this scheme).
I also recommend consideration of an exception from the lead-in-paint rules for violations which have less than XXX grams per unit. These essentially technical or de minimus violations might be exempt from recalls but not from "do-not-sell" orders. I am recommending some acknowledgement that certain L-I-P violations are not worth the expense to recall. A strict liability standard for L-I-P is not necessary to protect the public.
She, like Nancy Nord, offered her thoughts on the unfortunate snuffing of a five Commissioner discussion of these issues in her blog from this morning. I urge you to read it. These blogposts are apparently the venue that is being left to Nord and Northup to talk to you. As I have noted repeatedly, Commissioner Adler, the self-appointed Prince of "Darkness", has stated that we all "know" the views of the Commissioners through their blogs. That's all the Sunshine he has left for you.
So you better read their blogs.
Open government, you gotta love it. Shame we, the general public, aren't in charge anymore . . . .
Thursday, January 7, 2010
"[The Minority Commissioners] have followed the procedures that we all agreed to this past summer in order to try to get things on the agenda. I very distinctly remember a very spirited conversation that Commissioner Adler and I had where we expressed concern about whether the Minority would be able to get things on the agenda and I was assured that certainly we were not wanting to tamp down the Minority voice and things would be put on the agenda freely."
Bob Adler explained his great reluctance to engage in a "public debate" as he contends that a debate is inappropriate right now. In fact, he characterized it as a "waste of time". After all, he says "I know what you [Northup/Nord] believe . . . . but I think the positions at this point are pretty firmly set." As for the Minority's ability to participate meaningfully, he notes: "Lord knows, nobody's views are being squelched on this. We got months of separate statements, dissents, tweets, blogs, editorials. People's views are pretty clearly known." Hence, there is no point to putting discussion of the recommended changes to the law onto next week's public meeting agenda.
Mr. Adler neglected to mention the public's interest in this matter.
Referring to himself as the "Prince of Darkness", Adler signalled that his views would be unpopular. It was an ironic label in retrospect. As the Prince of Darkness, he seems to be the poster child for obstructing the spirit, if not the letter, of the Sunshine Act. A really lovely thing for an Obama Democrat to be known for. . . .
In any event, it appears that Mr. Adler feels that blogging is Nancy Nord's outlet for making herself known - to the Commission and to you. She accommodated him tonight with a very insightful blogpost entitled "Sunshine Doesn't Shine Through Closed Doors". I hope you will read it.
And if you don't read her blog, you won't know what Nancy Nord thinks. Inez Tenenbaum and the Prince of Darkness have seen to that.
[Ed. Note: There's still time to admit your error and change your mind, folks.]
"We all agree protection of our children is paramount. Congress can fix the CPSIA to ensure it accomplishes the safety intended without necessarily overburdening our economy. This can only be achieved with your assistance, the mandated detailed report to Congress, and increased transparency of your efforts to implement the law. We look forward to your report."
The Commission noted in its meeting yesterday that the agency has not been given much time to get this report done. In addition, there seems to be little consensus on the Commission on the content of the report. Finally, as you may have figured out by now, I think there may be some value in talking about the issues in an open meeting. . . . So I call on the CPSC to get this report RIGHT. Be late, if you must, but get the recommendations done properly. AND, I call on the Commission to reverse its partisan and ill-considered decision to forgo public debate on the content of this report. Let's learn from the lessons of Watergate and let the light shine in. Trust the public as they trust you, and let them hear you state your positions and work together as a Commission, not a collection of individuals.
It's time to step up to the challenge, guys.
I was thinking of that phase today as I was pondering the astounding mental gymnastics employed by Chairman Inez Tenenbaum and Commissioner Bob Adler to justify keeping private the Commissioners' debate over the agency's recommendations to change the CPSIA until the report is delivered to Congress. Tenenbaum and Adler both asserted yesterday that the private deliberations currently going on were more than sufficient to create the necessary "vigorous debate" all of us Americans hope would occur on a five-person Commission.
You are probably scratching your head. What's the big deal about the Commissioners sitting in one room and discussing an important issue? Well, there's a legal problem here: the Government in the Sunshine Act prohibits meetings of more than two Commissioners without announcing the meeting publicly and making it available to the public. [You owe C-SPAN to this law.] Arguably, three Commissioners can't take a taxi together or gather around the water cooler to resolve issues relating to the Cubs Spring Training line-up without an Internet camera firing away.
Here's some background on the Sunshine Act:
"The Government in the Sunshine Act was passed by the Congress of the United States in 1976. It required for the first time that all multithreaded federal agencies (meaning those which have units that work independent of each other) hold their meetings regularly in public session. The bill explicitly defined meetings as essentially any gathering, formal or informal, of agency members, stretching so far as to include conference calls.
Many federal agencies, most notably the independent regulatory agencies, are headed by collegial bodies. A clear example of this setup can be found in the five commissioners of the Federal Trade Commission. These agencies make most of their decisions through discussions and voting by the board or commissions members. This law was created so that these meetings would be in the public domain for all of us to review, so that if we wish, we can investigate the procedures and decisions of any multithreaded federal agency.
This bill was conceived and passed in the wake of the Watergate scandal, when American mistrust of government was running very high. The government responded by creating various committees to open the meetings of the government, but without a legal backbone to stand on, these groups were wholly ineffective. After some pressure from the public, the act was passed in order to provide a legal backbone for the opening of meeting records to the public."
So the Commissioners are not allowed to meet as a group unless you (the general public) are invited. As the above link attests, this means Commissioners may be constrained in what they choose to say - because you are peering in. Mr. Adler noted this issue yesterday and also expressed his frustration that as soon as he says something in a public meeting, "it's all over the blogosphere". You know, like in this column. Aside from the fact that the Sunshine Act is MEANT to facilitate precisely that, it also fosters accountability. I believe these same concepts underlie the Freedom of Speech, something we are all dependent on.
Ms. Nord pointed out that the purpose of a five-person Commission is to meet and work as a group. I would note (the obvious) that the debate proposed by Ms. Northup would occur AFTER all the private deliberations, and thus might occur at a very productive time. Whatever, Mr. Adler said he was satisfied with the current process, notwithstanding Ms. Northup's point that if meetings involved more than two Commissioners or were exposed to the light of day, errors might get corrected.
Errors - that's an interesting point, isn't it? Correcting erroneous information, probably a good thing, right? Bad information could lead to bad decisions. . . .
This leads us back to "bad optics". As you may recall, the Commission held a hearing on November 4th to decide the fate of Learning Curve and its famous brass bushings. Despite conceding that the brass bushings were perfectly safe, Mr. Adler voted against the exemption petition. Along the way (at about 25:00 in the video of the hearing), Mr. Adler launched into an unprompted and rather condescending bashing of Learning Curve, accusing them of "bad optics". Why did he do this? As I explained in a blogpost on November 5, Mr. Adler had received erroneous information about the company's sales practices from a member of another Commissioner's staff. Taking this information as fact, he gratuitously offered the company some coaching on managing appearances in Washington: "If I had to give any advice to [Learning Curve] on 'optics', I don't think it's such a good idea to come in and say 'We admit we're breaking the law, we'd like an exclusion but oh, by the way, we're going to continue selling this product during the pendency of the proceeding.' I would urge them at least as a matter of courtesy to withhold sale and distribution during the pendency of this proceeding." [Emphasis added] Of course, Learning Curve never said any of this.
You can imagine how Learning Curve must have felt about this - they were later to get whacked with a massive penalty for lead-in-paint, and those negotiations must have been going on at that very moment. When I wrote about this on November 4, Learning Curve's lawyer read my blog and contacted Mr. Adler, who then urgently called me (as I sat down to dinner while on vacation) to ask that I publish his retraction right away. You will find the retraction in the November 5 blogpost above and on the CPSC website.
Presumably this kind of experience leaves scars but now two months later, Mr. Adler appears to have forgotten it all. In early November, he was left exposed and embarrassed by erroneous information passed along in a private meeting. He was not protected by checks-and-balances because the Commissioners are unable to meet in groups and as a result, laid an egg in a very important hearing. To judge by the urgency of his appeal in November (and his remarks in yesterday's meeting), Mr. Adler does not like to be wrong nor be exposed as wrong. YET he now defends the very system that caused his own demise.
"Bad optics", indeed. Mr. Adler, what is the message here?
Wednesday, January 6, 2010
It is ironic that the Democrats would choose to spurn the Government in the Sunshine Act ("Sunshine Act") so brazenly. The decision to leave Northup's item off the upcoming meeting agenda is not technically a violation of the Sunshine Act, but then again it is certainly NOT on the list of exceptions to the public meeting rule (5 U.S.C. 552(b)(c)). In my humble opinion, it is a clear violation of the spirit of the Sunshine Act and can hardly be characterized as "transparent" government. As Ms. Northup noted, the sponsors of the Sunshine Act would be appalled. So why did the Dems do it?
Before I recap and analyze of this incredible event, I would like to quote Inez Tenenbaum on the importance of "transparency" (emphasis added):
- CPSC Press Release (July 9, 2009): "Ms. Tenenbaum identified three major areas of focus for her common sense approach to serving as Chairman. 'First, I want CPSC to be more accessible and transparent to parents and consumers. By creating an electronic database of product incident reports that consumers can search and by collaborating with state and local agencies and consumer groups, we can give the public confidence that CPSC is working openly and in their best interest,' she stated."
- APEC Conference Keynote Address (August 1, 2009): "My regulatory philosophy embraces open dialogue, information sharing with all stakeholders, and a commitment to finding mutual interests. . . . Enforcement is actually one of my three top priorities as Chairman, along with government transparency and consumer education and advocacy."
- Statement Before the Subcommittee on Commerce, Trade, and Consumer Protection (September 10, 2009): "In my first two months leading the CPSC, I have focused on three key goals: transparency and openness to those we serve . . . ."
- Keynote Address, 3rd CPSC-AQSIQ Safety Summit (October 21, 2009): "I embrace open government, information sharing with all stakeholders, and a commitment to finding mutual interests."
One must wonder who spoke to whom to get this flip flop accomplished. Assuming Ms. Tenenbaum meant what she said publicly about the need for "transparency", someone must have really put a wet blanket on the idea of publicly discussing this subject. I wonder who might have strong views on the wisdom of an unstaged, open discussion of these issues . . . .
Consider Ms. Northup's argument: This is one of the most critical issues to come before the Commission. The CPSIA has been controversial and difficult to work with two years now. The Appropriations Committee has asked us to give recommendations on how to change to the law. [See this link, pp. 33-34 for the actual instructions.] There is no disagreement that blood lead levels need to be a top priority in children's safety but none of the CDC, NIH or EPA point to children's products as a serious lead threat. The Sunshine Act prevents the Commissioners from meeting other than one-on-one without calling a public meeting, which means we can never sit down together to discuss these issues. The issues are too important to relegate to a game of "telephone". A hearing is the only way for the five of us to discuss this issue at one time.
Tenenbaum's response was telling: The Staff has been working night and day on this and everyone has had a chance to put in their comments. Each Commissioner has had some drafting responsibility. Each Commissioner has the right to submit their own statement to Congress and likewise to request to testify to present their own personal views. Given our ability to have "extensive discussions" one-on-one, this debate is best held in private. We should NOT have a public hearing on this subject.
Okay, are you persuaded? This is coming from Ms. Transparency, to judge from her many uses of that old chestnut in various speeches and testimony.
Nancy Nord made the point that the reason to have a Commission is to meet publicly and have discussions openly and transparently. Apparently this didn't persuade the Dems. Bob Adler amplified the "argument" against trusting the American public to listen in to the debate: After conceding that he would sound like the "Prince of Darkness", he stated that an open Commission hearing should involve give-and-take but a hearing on this topic would not involve deliberation but instead speeches telling him why he's wrong and the others are right. He said he was very comfortable with the current process because he knows everyone's views quite well and besides, so does the public via blogs, tweets, statements and so on. The minority Commissioners are not being "squelched". He said that a public meeting removes the ability to think out loud. "As soon as you say it [in a public meeting], it's all over the blogosphere." [Thanks for the plug, Bob.]
So what does this MEAN? A few thoughts:
- The Dems don't want to allow an unruly public debate of the issues - why? There are several possible reasons - (a) they have been told a public debate is "not a good idea" by Congressional Dems who have consistently refused to hold public hearings, (b) they have been told that many/most changes are "non-starters" by Guess Who so don't even think about suggesting them, or (c) they don't want to defend their views publicly because . . . there is no way to put a good face on their views.
- The Dems were outfoxed today. By putting up the request to discuss this subject publicly, the Republicans forced their fellow Democratic Commissions to stand up publicly - before you, the general public - and try to defend "smoke filled room" politics. Now that's "Change We Can Believe In!" In other words, they were caught between a rock and a hard place - their Congressional handlers said "no way" and to get this result, they had to publicly wave their arms and try to convince us that secrecy is somehow openness. The Dems can NEVER again say they are all about transparency. If they do, they will expose themselves as being all about . . . something else.
- The "commitment" of the Commission to find middle ground and vote more cohesively as a group, which they achieved after considerable effort on the recent Stay decision (lead testing and certification), is apparently paper-thin. Ms. Tenenbaum obviously knew of Ms. Northup's motion ahead of the meeting today (she had her response drafted in advance). [Did anyone else catch the chill in the air during the meeting?] So, if they all knew this was coming, where was that commitment to work together? To consider everyone's views? Forget it. It's also hardly an advertisement for the ability of the Chairman to steer this group.
- The illusion that this government cares about the mess it made or is making any reasonable effort to fix it has been blown up. The game is fixed and has been fixed from the get-go. You need only read the Appropriations conferee report (link above). The Democrats control both Houses of Congress - so this statement was written by Democrats: "The CPSIA was signed into law on August 14,2008 and is considered to be the most significant piece of consumer protection legislation enacted since the CPSC was established in the early 1970s. The legislation received nearly unanimous bipartisan support in Congress. Congress passed this legislation in the wake of a massive number of consumer product recalls in 2007 and 2008--more than 20 million-many of which involved toys manufactured in China. The conferees strongly support this legislation but are aware of concerns surrounding implementation of certain aspects of the law." Of course, I have already documented that 43 Senators and 96 Members of the House have either sponsored or voted for CPSIA amendment legislation. It's a complete mischaracterization of the current reality - but when read by Ms. Tenenbaum into the record during the meeting today, it almost sounded true . . . .
This process is some sort of Kabuki Theater for your amusement. Having fun yet?
Today's decision is par for the course in a twisted, bass-ackwards debate over safety characterized by ideologues out to steal our legal system, bureaucrats devastating markets that they simply do not understand, regulators witnessing the destruction of their agency to serve a small number of Congressional "masters" with a broad, world-changing agenda. To propel it along, the Dems now propose to shield their work under the cloak of darkness. Does it really matter? Well, Bob Adler already knows what everyone thinks and doesn't care to be told he is wrong (and others are right). So I guess it really doesn't matter. His mind is made up, Waxman's mind is made up - and no one cares what you think.
So, when you have to let a few more people go to cover ridiculous testing costs or to pay your lawyer extortionate fees to keep you on the straight and narrow, or when you cut your product line or drop some customers to find profit elsewhere, just remember: the Democrats on the Commission thought it would be best to have the debate on the CPSIA one-on-one in private, rather than let you understand their views or participate in an open hearing.
Just remember that . . . on November 2, 2010.