Friday, February 26, 2010

CPSIA - You Can Add 43 Pages to the Heap

The CPSC published its Civil Penalty Factors today. It's only 43 pages long. Get reading . . . .

Thursday, February 25, 2010

CPSIA - Video Blog - Understanding the CPSIA!

I get calls all the time from my readers - "what do I need to read to understand the CPSIA?" Well, you gotta read, read, read! Unfortunately, the CPSC has not provided a list of documents for you to read. To help out, I prepared a little document list for you, and explained it in this video blog:

Wednesday, February 24, 2010

CPSIA - CPSC Commission to Vote on Civil Penalty Factors

According to the latest CPSC Calendar, the Commission is due to vote on the Civil Penalty Factors "final rule" at their weekly meeting on Wednesday, March 3 at 9 AM EST. [The webcast can be found at this link.] This long-awaited rule has been the subject of comments on two occasions (once before any rule was produced and one after the first draft was released). The most recent draft was the subject of considerable controversy and created the potential for great unfairness to anyone subject to the awful CPSIA.

It's worth noting that the CPSC has yet to assess a single penalty under the CPSIA. The whoppers assessed against Mattel, RC2, Target and Schylling, among others, all reflect prior law. I rather doubt they are done knocking on doors and waking up the occupants with news of penalties for long-ago infractions. When they're finished with that task, the agency can begin assessing penalties under the CPSIA. The new penalty section became effective on August 14, 2009 and increased the maximum penalty per violation from $8,000 to $100,000 and the maximum penalty for a related series of violations from $1.825 million to $15 million (see Section 20 of the CPSA). Gets your attention, right?

There is a considerable risk of abuse of the penalty assessment process without procedural protections. The penalties being assessed today are substantially larger than in the past, and seem (to this observer) to follow no clear pattern or bear any relationship to the infractions. Arbitrary penalties will depress trade as manufacturers reassess risk or find that they cannot bear the increased cost of insurance (self-insurance or commercially-available insurance). The cost will come to rest somewhere and like any tax, will reduce the incentive to innovate or compete.

It is also debatable how negotiable the agency has been or will be on penalties, amplifying the risk of arbitrary penalties. After all, how are you supposed to use leverage against the CPSC - no one has enough money to fight the federal government in court. Nor the time or energy. As someone said, never sue someone who has access to a printing press. This lack of a level playing field raises questions of due process in CPSC penalty assessment. The dilemmas presented by the current version of the civil penalty factors prompted many comment letters, including one from me.

Nothing scares me more than the populist blood lust we continue to see from the agency. The penalty factors need to restrain efforts to please politicians then in power. The urge to "cut [the agency's] conscience to fit this year's fashions” may be overwhelming at times. It is worth noting that Gib Mullan, head of enforcement at the agency, is signalling more sensitivity to this issue in his recent speeches. This is much appreciated and is a much-needed change. That said, to restore trust and confidence, the agency MUST tie its hands in important ways. The unfettered ability to whack manufacturers however they arbitrarily feel on a given day is too much power for the CPSC and places too much risk on businesses.

The agency received many comments giving this advice. Let's hope they had an open mind as they read the comments.

CPSIA - Science, It's Really Overrated. So Is Knowing What You are Talking About.

From New Jersey Newsroom:

"Amid continued concern about children's jewelry tainted with toxic materials, the [New Jersey] Assembly will also consider legislation targeting unsafe jewelry. The bill comes after 55,000 "Princess and the Frog" necklaces were recalled because they may contain high levels of the toxic heavy metal cadmium. Under the bill (A-2076), no one may sell, distribute, import or manufacture jewelry in New Jersey that contains materials classified as unsafe. The bill also includes stricter restrictions on materials used in children's jewelry and body piercing jewelry. 'Buying a necklace or a charm bracelet shouldn't bring about fears of lead and mercury poisoning, yet the health and safety of New Jerseyans are at risk,' said Assemblyman Patrick J. Diegnan (D-Middlesex), a co-sponsor. 'It's time these harmful products are taken down from store shelves for good.'" [Emphasis added]

Assemblyman Diegnan, noble Democrat of Middlesex, I am getting sick of listening to headline-seeking politicians who have absolutely NO idea what they are talking about. The January 11 AP story you refer to found a small handful of jewelry with cadmium present. There was no mention of mercury or lead . . . . As to cadmium, the CPSC says they have little or no data on ingestion of cadmium in children and can't even say (based on available data) that cadmium is a carcinogen through ingestion in children (the current evidence on cadmium involves workplace exposure or inhalation, a horse of a different color). Where did you come up with lead and mercury poisoning from jewelry? Was cadmium not scary enough to get you reelected? Do you have any idea if the presence of cadmium in jewelry is even an issue? Science be damned.

This kind of idiocy brings to mind one of the most memorable of our nation's discarded political parties, the Know-Nothings of the 1840's and 50's. This aptly-named party died a well-deserved slow death . . . but seems to have risen from the dead in the form of today's Democrats.

Know-Nothings, we can't let them take over!

Tuesday, February 23, 2010

CPSIA - Redesign the Dog!

I hope you didn't miss the hubbub today from the American Academy of Pediatrics over dangerous hot dogs. Apparently, you can choke on hot dogs. This shocking revelation stimulated an outpouring of news articles, including this one: "Pediatricians call for hot dogs to be redesigned". I guess the bun would have be altered, too. Readers, submit your suggestions as comments! I am looking for something very "Space Age" but also exquisitely safe.

Pundits across the blogosphere couldn't let this pass, like our friends Walter Olson ("Cut grapes into pea-sized portions?") and Lenora Skenazy ("Surely You Must Be Choking!"). Many newspapers repeated the AAP's call for warning labels on items like nuts, certain hard fruits and hot dogs. "Back away from the peanut slowly, Tommy, I don't want you to choke!"

Any of this ring a bell? The AAP remains among the most ardent of the CPSIA advocates. They are in regular contact with the Waxmanis and advise on which scraps of relief we might be allowed. In fact, my spies point to the AAP as the big rabble rouser on rhinestones (sooooooo dangerous!) Having succeeded in gutting the children's products industry, the AAP have turned their attention to that symbol of America, the hot dog. Parents cannot possibly deal with hot dogs without government intervention - individual responsibility is so passe. The AAP will make us all so safe . . . .

This seems to be a theme of this space - the world seems to have lost its moorings. Redesign the dog, indeed. Spare me.

Monday, February 22, 2010

CPSIA - Game Playing with Phthalates

Last Wednesday during ICPHSO, CPSC General Counsel Cheri Falvey made a direct statement about phthalates testing: You only need to test plasticized parts and paints for phthalates. She also noted that internal components still need to be tested, ridiculous (and expensive) as that may be.

In my post of February 17, I admitted that I hadn't seen this in writing previously and asked for citations. A reader who knows more than me sent me this link. We think she is refering to this language:

"Not all plastics, however, contain phthalates. Certain plastics, such as polyethylene and polypropylene, generally do not require plasticizers. However, surface coatings and adhesives may contain phthalates. In addition, phthalates could be used in some plastics even though they are not required. Phthalates might also be used in some elastomers or synthetic rubbers. . . .

Manufacturers either know or should know what materials and components go into the products they make, and if the product or its components contain one of the plasticizers specified in section 108 of the CPSIA, the manufacturer or importer certifying the product must test the component or product to ensure that it complies with the CPSIA. Failure to comply with section 108 of the CPSIA is a prohibited act under section 19 of the Consumer Product Safety Act (CPSA) and can result in civil and criminal penalties. Likewise, failure to have a product subject to section 108 of the CPSIA tested by an accredited third-party laboratory and have the appropriate certification for that product is also a prohibited act under section 19 (CPSA)." [Emphasis added]

Aha, that's it! Or is it? Here's some more from this document:

"Examples of materials that do not normally contain phthalates and, therefore, might not require testing or certification are:
• Unfinished metal.
• Natural wood, except for coatings and adhesives added to wood. . .
• Mineral products such as play sand, glass, and crystal."

I wrote about this provision in my comment letter on the second proposed phthalates standard (see paragraph 7). All the risk is on the manufacturer, there are no safe harbors other than comprehensive testing (even for wood, metals, sand and crystals), and there is no way to assure a dealer of the validity of an "incomplete" test report.. This rule remains an utterly unworkable and confusing standard - nowhere near as simple as Ms. Falvey implies. Although few wars are raging with test labs over this provision (since testing isn't mandatory yet, "anything" goes), the possibility or probability of chaos remains profound.

I feel strongly that it is wrong of CPSC General Counsel Falvey to make light of this risky situation with an unsupported blanket statement, particularly since she is prone to "tisk tisk" you if you ignore one of her many oral warnings. If her words have the power of law, which they certainly don't, then presumably they also provide cover. Are you ready to make that bet? In this case, if anyone relies on her statement, they are risking civil penalties or criminal charges according to Falvey's own written policy.

Oops- that'll teach you to listen to the General Counsel!

Sunday, February 21, 2010

CPSIA - Why Do Dems Want to Ban Rhinestones?

Why indeed. The Democrats apparently have it in for rhinestones and are so uptight about this "menace" that they are willing to write an outright ban into the CPSIA, via Mr. Waxman's new amendment. No more bling for you!

Have we finally entered the land of the looneys?

The Dems' rallying cry on rhinestones goes way back. On September 10, 2009, Rep. Bobby Rush welcomed Inez Tenenbaum to the one CPSIA hearing since August 2008 by commending her for bravely banning rhinestones.

Let's think about the basics here:

  • Rhinestones are simple embellishments. They are found in inexpensive jewelry, on clothing and shoes, in craft kits, used in scrapbooking, are decorations on kids' pageant and athletic costumes, adorn hair bows and barrettes, etc. They are bling.
  • Rhinestones have no history of causing lead poisoning.
  • Rhinestones are even okay to sell under the obnoxious Proposition 65.

Chairman Tenenbaum has conceded in writing that the stones are not dangerous: "Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children . . . .” Of course, CPSC Staff are just scientists and Ph.D.'s, not lawyers writing important laws.

Unfortunately, Tenenbaum recanted her stance in Congressional testimony on September 10, 2009. On September 17, I wrote a letter to Chairman Tenenbaum about her rhinestone testimony . . . but never received a reply. The letter asks her to back up her assertion in testimony that swallowing rhinestones presents a lead poisoning risk. This is an unsupportable contention and perhaps this is why my letter was never accorded a response. In particular, I made the following point about the literal "danger" of rhinestones:

"[T]he Exponent study submitted [by the FJTA] on February 2 indicates that the FDA has determined that six micro-grams of lead per day is required to produce a one micro-gram of lead per deciliter change in blood lead levels in children six years old or younger. Thus, to produce such a change in blood lead levels from jewels would require sustained daily ingestion of 12 grams of stones (roughly 4,000 stones or hundreds of pieces of jewelry) or mouthing of 42 grams of stones (roughly 14,000 stones or more than 1,000 pieces of jewelry). Clearly, this is unlikely to occur, particularly accidentally." [Emphasis added]

As noted, Tenenbaum never answered this letter.

[See also my posts of July 21, July 21 (no. 2), September 10 and September 12.]

Of course, the natural ally of the Dems, the consumer groups, bang the drum mindlessly for banning rhinestones, too. In my September 20 post, I recounted the attack of Nancy Cowles on the rhinestones "menace". Here is Ms. Cowles' suggestion for those who value their bling:

"In an interview with BNA, Nancy Cowles, executive director of Kids in Danger, praised the commission's July decision on fashion jewelry accessories. Cowles told BNA that lead is a severe toxin with no safe level. She added that while more common sense could be applied to determining which products are hazardous, consumers overall do not want products containing lead. 'People will come up with other ways to put [jewelry] on children's clothing that isn't toxic. Whether the lead [in rhinestones] leaches out fully, it's hard to know, but we don't want lead in our children's products. We will come up with other ways to decorate our clothes,' Cowles said."

It's okay, they just want to protect you.

At this point, I have to ask - what on Earth happened to our country? How did we get to this point? I can't say for myself, I don't know how this kind of stridency and absence of BASIC common sense took over our nation. Politics no longer makes sense to me. In today's New York Times, Senator Evan Byah blasts this theme as he explains why he is dropping out of the Senate after 12 years. It's a depressing read.

More depressing still is how the Democrats are making such a mess of things and disillusioning so many people, myself certainly included. In yesterday's Barron's Magazine, the Dems' ability to actually govern is questioned. That's a "wow". This small article details how Senator Max Baucus' jobs bill (written in response to President Obama's call for more economic stimulus) was gutted by Senate Majority Leader Harry Reid for "speedy" passage:

"So Reid selected four provisions that he believes all Senate Democrats and Republicans can agree on: tax breaks for small-business investment; more money for highway construction; expansion of the Build America Bond program, and a payroll-tax exemption for employers hiring someone who's been jobless for at least 60 days. Speaker of the House Nancy Pelosi is openly opposing the payroll-tax exemption, a stance which has fiscally conservative Democrats near despair. 'Democrats are in danger of demonstrating they cannot govern on the most basic level,' a progressive Democratic party leader said last week."

That's right - the Dems are failing at the most basic level. The CPSIA saga and the politics/populism infecting CPSC leadership and policy these days are part and parcel of the same phenomenon. Rhinestones are this week's victim. Who is next in line - you?

When are you going to say "ENOUGH"?!

Saturday, February 20, 2010

CPSIA - Waxman's New Amendment - Needed Changes

Here is my full list of needed changes to the CPSIA:

Needed Changes to the CPSIA That Will Guarantee Safety and Promote U.S. Jobs:

1. Restore the CPSC’s authority to base its safety decisions, resource allocation and rules on risk assessment by giving the Commission the discretion to set age and product definition criteria for 300 ppm lead standard and phthalate ban. Eliminate the 100 ppm lead standard.

2. Definition of “Children’s Product” should not include anything primarily sold into or intended for use in schools or which is used primarily under the supervision of adults. Other explicit exceptions: apparel, shoes, pens, ATVs, bicycles, rhinestones, books and other print materials, brass, connectors, others? This would take these items outside the law, including tracking labels.

3. 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.

4. Lead-in-substrate and phthalate testing should be a “reasonable testing program”, not mandated outside testing. Leave 300 ppm standard in place, but place burden on manufacturer and supply chain for compliance activities. Phthalate testing requirements should explicitly exempt inaccessible components, metals, minerals, hard plastics, natural fibers and wood.

5. Eliminate required future reductions in the lead-in-paint standard levels if technologically-feasible. Clarify that all inks are excluded from the lead-in-paint ban. Eliminate the definition of “technologically feasible”. 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”). Eliminate the whisteblower provision.

6. Definition of “Children’s Product” should be limited to children 6 years or younger and should eliminate the difficult to apply “common recognition” factor of Section 3(a)(2)(c) of the CPSA. Definition of “Toy” (for phthalates purposes) should be limited to children 3 years old or younger and should explicitly refer only to products in the form used in play.

7. Restore ASTM F963 to voluntary standard status. Eliminate CPSC certification of laboratories (rely on the market to provide good resources).

8. Add penalties (up to and including felonies) for false or misleading accusations of violations of law or safety violations.

9. Rewrite penalty provision on resale of used product such that violations are only subject to penalty if intentional (actual knowledge or reckless endangerment) and if the violation led to an actual injury. Eliminate the “knowing” standard with its imputed knowledge of a reasonable man exercising due care. Completely reformulate penalties to restrict them to egregious conduct (including patterns of violations), reckless endangerment or conduct resulting in serious injury.

10. Restore the ability to export non-compliant product as long as the product is compliant with the destination jurisdiction's law.

11. 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).

12. Public injury/incident database restricted to recalls only. Private, confidential database permitted for other injuries.

CPSIA - Power Imbalance

When the respected Chairman of the CPSC uses a prominent keynote speech to tell us:

"But now that our team of experts has gone back to the process of building the database, I want those in industry to stop fighting old battles and get prepared."


"Well, to all of you here today, I say don’t believe everything you read on the Internet, except what you read on Web sites that end in dot gov." [Emphasis added]

I believe it is an abuse of power by a public official.

Let's think about how the cards are stacked in favor of the Chairman:
  • She is appointed by the President to a fixed term of office and is not subject to removal but for malfeasance,
  • She gets the microphone and media attention at her pleasure and is a regular on popular TV news shows,
  • She has a PR machine working for her full-time,
  • She supervises the writing of the rules and policy setting (including implementation of the CPSIA), the issuance of penalties, the prosecution of recalls and other cases (up to and including criminal charges), oversees appointment of senior staff, interacts with Congress and the Executive Branch on behalf of the agency, and oversees open forums with stakeholders as well as the solicitation of comments and other feedback loops with stakeholders, and
  • She speaks for the Federal Government on consumer product safety.

That's a lot of firepower. Most people don't want to cross someone with so much power or influence as well as the almost unrestrained ability to prosecute. Let's not forget another quote from her speech: "A new Commission that has new powers – and we are not afraid to use them. If you resist our efforts to recall children’s products, be forewarned, this Commission stands ready to be creative in the use of our enforcement authorities." [Emphasis added] She has a lot of power and wants you to know she's ready to squish you.

The Chairman is essentially judge and jury in cases and policies that matter a lot to safety stakeholders. Her warnings to "to stop fighting old battles" can be taken as a warning to people like me. It is hard to not believe that she is trying to be intimidating. Likewise, with her federal imprimatur, her remark that you should not "believe everything you read on the Internet, except what you read on Web sites that end in dot gov" feels like an effort choke off debate. Be forewarned, indeed.

This power dynamic is not my imagination. Others facing the overwhelming power of the federal government routinely have had to cave, right or wrong. For example, the latest issue of Fortune magazine features an interview with Stasia Kelly, former General Counsel of AIG. She tried, in vain, to negotiate with Kenneth Feinberg, the federal "Pay Czar" on behalf of her company. Eventually she quit her job, rather than face the consequences of Mr. Feinberg's unilateral plan. Here is an excerpt from the interview:

"The next huge event for you was the June 2009 entry of Kenneth Feinberg, the special master of compensation for seven companies, AIG very much included, that had received TARP funds and not paid them back. You were AIG's point person in dealing with Feinberg. I've read you emerged from that experience disliking it heartily. Was it bad from the beginning?

Yes, because, first of all, it's very hard to negotiate when you have no power. Feinberg had the power -- unfettered power. Our new CEO, Bob Benmosche, and I tried very hard to let him know what compensation we thought we required to attract and retain the kind of people we needed to pay off our debt to the taxpayers and deal with the risk in FP. We had the New York Fed and Treasury behind us on that. But Feinberg had political and populist considerations to worry about and a need to set amounts that would satisfy those. As we negotiated over the months, it became increasingly obvious to me that we were not going to end up in a good place." [Emphasis added]

High officials at the CPSC have enough administrative and political power to be tremendously coercive. This goes double for small companies who lack the financial or political firepower to blunt a government attack. You can't overlook the fact that the powerful Henry Waxman is essentially the CPSIA's "sponsor" and hence, the principal off-stage player behind this leadership group. When they use their bully pulpit to stifle debate, they are essentially borrowing and wielding his power. This is a caustic environment, and it is not lost on anyone listening to their speeches. While the "have's" may like it, the "have-not's" (like me) chafe. This is a bad approach to building a community.

The folks running the CPSC are just trying to do their jobs. So am I. There's room for both of us. Safety doesn't have to be all about politics (see the Kelly quote above) and if leadership at the agency can guide us to a place where it isn't all about politics and populism, the stakeholder fractiousness might die down. Until then, I would appreciate it if leadership would stop trying to stifle debate or discredit independent sources of commentary. It's not our fault we don't have a "dot gov" URL.

CPSIA - Here's a "Dot Gov" Website I Trust!

Check out this April 2009 GAO report entitled: "FINANCIAL AUDIT Material Weaknesses in Internal Control Continue to Impact Preparation of the Consolidated Financial Statements of the U.S. Government".

I must say, this one has the ring of truth:

"Why GAO Did This Study

Since GAO’s first audit of the fiscal year 1997 consolidated financial statements of the U.S. government (CFS), material weaknesses in internal control and other limitations on the scope of our work have prevented GAO from expressing an opinion on the accrual basis CFS. Certain of those material weaknesses relate to inadequate systems, controls, and procedures to properly prepare the CFS."

Certainly a government source we can trust - the GAO has been unable to sort out the validity of the consolidated financial statements of our government since, oh, 1997, the year of its first audit. That's only 13 years of qualified opinions. Garbage in, garbage out?

I must say, very believable.

Friday, February 19, 2010

CPSIA - Decorum

I have received some comments in the last 24 hours that I consider abusive and personal in nature. This blog space is intended to be a forum for discussion of a limited topic, the issues surrounding the CPSIA, its implementation and its administration. I do not attack people personally for their views, although I certainly reserve the right to disagree with the positions, tactics or methods of the various actors in this drama. This is not personal and will not become personal while I am on the watch.

Let's keep it clean, guys. I do not filter comments to this blog and do not want to. To date, the only comments I have deleted are comments that promote other people's businesses (generally, these comments promote "adult" businesses) and one comment that I felt was insulting to a Commissioner (a Democrat, as it turns out). Some things are just across the line. I do not want to restrain your ability to comment here BUT if you won't obey the rules, I will turn on the filter and will shut you down.

Please don't ruin this for everyone. I will not tolerate personal attacks or other violations of ordinary decorum in this space.

Thursday, February 18, 2010

CPSIA - The Text of Inez Tenenbaum's Keynote Speech at ICPHSO

The CPSC has posted Ms. Tenenbaum's fiery speech on their website. Here is the link. If you want to share the experience we had at ICPHSO, here is the video of the speech itself. Enjoy!

CPSIA - Am I a Libertarian?

I was asked today if I am a Libertarian. I assume that's because I complain regularly about the growing size, budget and invasiveness of the CPSC coupled with the agency's diminishing impact. Does that make me anything other than opinionated? Is a label in any way informative or even appropriate? I find the urge to place me and my comments in some sort of category rather disturbing - are my comments so hard to interpret that I can only be understood with the orienting effect of a label? Let me assure you, my views are not guided by a political philosophy. I am simply reacting to the mess made by Congress when it passed a terrible, poorly-conceived law.

Opposing this law has certainly changed me and given me a completely new way of understanding the way our government works . . . or as Senator Byah might say it, doesn't work. Am I wrong to accuse the planners behind the awful CPSIA of increasing the size and intrusiveness of government to negative effect? I know I must seem like a grumbler - but is that fair?

Often, when I think of my increasing stridency on this topic, my mind drifts back to this Seinfeld clip. The absurdity of the CPSIA situation seems somehow captured by the episode where entrepreneur Kramer starts up a new transportation business in New York City. This is the scene where he is evaluating his new drivers.

CPSIA - Waxman's New Amendment Progress Report

In the last couple weeks, Rep. Henry Waxman's staff on the House Committee on Energy and Commerce has been approaching Republicans and various stakeholders for feedback for a "bipartisan" approach to fixing the CPSIA. In these discussions, the staff has acknowledged that the law is "flawed" and requires surgery, not just tweaks. An interim (artificial) deadline of this week has been established for comments on their planned amendment. A draft of this amendment has not seen the light of day yet. No one knows what it will say.

While this may sound "good", the Waxman staffers have also attempted to constrain the development of the amendment. For starters, they insist that the amendment be based on the failed Waxman amendment of last December. [Last year's try was covered in several posts in my blog from December 11-16.] They have also drawn quite a few lines in the sand, such as no change to age limits in Children's Products. They favor exemptions for individual product categories or even individual products, a Swiss Cheese approach. [I hate this approach, as does just about everyone else other than the Waxmanites.]

The Waxmanites seem interested in helping out the ATV'rs. Apparently, the legislative logic is that if the amendment caters to the ATV'rs, who have been quite noisy and enjoy wide support among members of Congress, no one will be able to vote against the amendment for political reasons. Thus, the makings of a Democrat victory and the appearance of bipartisanship. I can see it now: "The two parties worked together and fixed the parts of the law that caused unintended consequences. All is well!"

Among the "have-nots" in this approach:
  • "Common Sense". This case-by-case or product-by-product approach means that the Waxmanites refuse to even consider trusting the CPSC to do its job and assess risk for itself. The only people the Waxmanites and consumer groups can trust are . . . are . . . themselves. You won't be able to draw a line between those that are "in" and those that are "out" in any rational way.
  • Rhinestones. On the subject of rhinestones, my understanding is that they are so resolute on keeping these innocent stones in the bill that they would be willing to write rhinestones in explicitly. This is the opposite of case-by-case exclusion - it's a case-by-case INCLUSION.
  • Educational Products. While the Waxmanites say they want to exclude educational products, they can't figure out how to do it since you might use an educational product in your home. Horrors! Again, without a simple notion of what's safe and what's not, how do you expect a sensible rule to emerge from this primordial goo?
  • Bikes. They really want to figure out how to help bikes but can't seem to do it. For this reason, they are chatting about an indoor/outdoor exclusion. In other words, and I am not kidding, they have suggested a rule that if you keep something in your garage, it's "out", and if you keep it indoors, it's "in". So everybody - move all your toys, children's clothing and shoes, furniture, books, pens, appliances and so on into your garage, quick, so you can qualify for this great new exemption! [Try to resist holding a garage sale, though, because that presents special risks under the law!]

Not one to look a gift horse in the mouth, I am happy they are thinking of an amendment, but I am not happy that we still find ourselves adrift without any sense of what's safe and what's not. It is hard to foresee an amendment that does much good with this kind of inflexibility. Bipartisanship promises to be hard to obtain or a sham staged by Democrats for their own benefit.

Remarkably, a hidden issue that may weigh on these proceedings is the growing awareness of paralysis at the CPSC. The agency saw a massive increase in its budget last year, to match its massive new responsibilities, but still finds itself mired in open projects and conflicting priorities. Simple things are taking forever. Agency paralysis cannot be prevented in this environment without a significant paring of CPSIA priorities, something that the Waxmanites have a hard time conceding. And Obama won't give the agency more money, so they're stuck. And we're stuck.

That's not where you want to be.

Something to think about as we go forward:

  1. Principle One: Your silence is deemed to be your approval. Silence = approval. You must swing from the rafters to get their attention, too. No, don't do that - too dangerous.
  2. Principle Two: An unopposed view, particularly a document with footnotes, is considered definitive. After all, if it were wrong, why didn't anyone point it out, with footnotes? This is really how the Waxmanites think.

You need to keep these principles in mind. Your loud involvement can help a lot.

To Be Continued . . . .


After a day at ICPHSO when
  • The General Counsel quizzed the audience perhaps ten times about who was tweeting (my spies indicate that three people tweeted from that session, including me), ribbing us (me?) for letting you know what she was saying. [I blogged live from last year's event, which was noted with shock by some participants.]
  • The Chairman instructed us not to believe "Internet rumors" and to only believe websites ending in "dot gov". You know, you can always believe your government!
  • The Chairman told us to stop fighting old battles - in other words, give up, guys!
  • The Chairman heralded the work of the Center for Environmental Health, one of the most noxious of the consumer group terrorists active in today's market. Their tactic of extracting coercive settlements under CA Proposition 65 to set precedent and to fund their activities has been well-documented in this space.
  • The looming reality of the public database was shoved in our faces (Tenenbaum: It's time to get prepared). We confronted the realization that we will be forced to treat every consumer report as an emergency simply because of the database, and
  • The Chairman pointed to the Toyota feeding frenzy as the model for future regulatory action on "slow" recalls in this era of populist corporation bashing,

where do you think the ICPHSO planners sent everyone on last night's social event?

To see "Sheer Madness", of course!

You have to admit, it was a perfect choice.

Wednesday, February 17, 2010

CPSIA - ICPHSO Update - Q&A with CPSC

Q&A's from this afternoon's session. Gib Mullan responding unless otherwise noted.

A taste of things to come:
  1. The biggest impact of the Public Database is how quickly you will have to reply. Hmmm, where have we heard this before??? Hope you are never on vacation. . . .
  2. On confidentiality in the Public Database, it is going to be "hard to deal with". Info from consumers won't be confidential. Info from businesses will either be confidential or not, perhaps at the company's pleasure, but it will be hard to act on info businesses provide WITHOUT making it public. RW: Don't forget to make comments,guys. Your silence will be taken as your approval, trust me.
  3. The plan for the DB is to let companies have "every bit of the time" specified in the statute "AND NOTHING MORE". There will be "minimal CPSC review". Aha, just like Tenenbaum said, time to get prepared. . . for the first Tuesday in November.
  4. One questioner noted that the recalls on cribs has so rattled consumers that it has stimulated the return of co-sleeping arrangements, known to be one of the most dangerous baby scenarios. Hmmm. The CPSC will be doing education to counteract this development. RW: It is inconceivable that their publicity will match the media frenzy over crib recalls. It's probably safest just to stop having kids.
  5. Will there be a mandatory standard for window coverings - because there is (said to be) one death a month. The CPSC says that they are working on it. For you at home, it's probably safer to just take down all window coverings and let Mrs. Kravitz have a big day.
  6. Somebody called for new regulations on the "end of life", just like in Japan. OMG . . . . Hey, they mean the end of your product's life! What were you thinking? The CPSC is watching how this system works but has no present plans to expand its current regulatory scheme.
  7. When will a promotional product become a "Children's Product"? Does it become a Children's Product if screened with the wrong thing? Cheri Falvey responded that you can't read the WIMA letter (the pen decision) to address this question. It was a "result-oriented" opinion from a two-person Commission. The new rule on Children's Products, to be voted on by five Commissioners, will sort this out. Might incorporate the pen decision and broaden it, or it might not. So there you go, might be okay, might not, you should wait and see. [RW: I hate the pen decision because it attempts to solve a compliance issue on a technicality with absolutely no regard for safety. Is a pen safe? The decision cannot be reconciled against that question because it only matters what was intended by the manufacturer. Safety is irrelevant when considering compliance . . . ?]
  8. Eric Stone noted that changes in the definition of "Children's Products" may have consequences for manufacturers and asked if the agency has the legal authority to operate prospectively. Falvey declined to give a legal opinion, but noted her personal opinion that the definition could broaden in the new rule. She noted that she has warned about that in the past. Oh, I see, we are to write down her every word, savoring them like pearls, because her oral warnings in any setting are going to be taken as precedent. We were warned. Too bad for those of you who weren't here to hear her words. Ha Ha Ha Ha! And you can't use this blog as a citation, either. Remember, my URL doesn't end in "dot gov". I am a liar.
  9. When the law goes into effect on cribs, Falvey told us this AM that the standards will be RETROACTIVE. A member of the juvenile products industry referred to this news as a "bomb". He said there could be 20 or 30 million cribs that don't comply and would be instantly illegal. Gib says the new rule would be retroactive only for cribs in "public settings" like hotels, motels, day care centers. He says that the Commission has the authority to go even further. Oooh, could be a great chance for the government to come into your home - nice! I really like the concept of this rule - it's really simple, see, it will be retroactive for some people and prospective for others. Apparently, the CPSC and Congress still haven't figured out that the U.S. economy is rather complex. I see years of fun ahead for the regulators.
  10. Learning Curve asked if all document attachments on the Public Database would be made public. Gib said yes. LCI then asked about consumer-obtained test reports and whether they would also be made public without scrutiny. Gib said he hadn't thought of that one. I can think of a few plaintiff's lawyers who would be happy to run a real life seminar about this in the future . . . . This Q illustrates the incredible disarray that awaits us all because of this insanely self-destructive provision fobbed off on us by the consumer groups.
  11. Gib: not everything in the database will be public. Some area will be explicitly confidential. Some 15(b) disclosures will not appear in the DB.
  12. No decision on whether media reports will be included in the DB. I find this hard to be envision - I trust eventually the consumer groups will force all the trash into the DB to help with all their searches. Oh how I look forward to the new era of Sudden Business Death.
  13. Will the agency will reconcile multiple reports of the same incident? One of Cheri Falvey's associates said they would address it in the rule. The rule is now over 25 pages long. Trust me, it won't be that short when released.

CPSIA - ICPHSO Update on Public Database

Remarks of Ming Zhu and Chad Tompkins, Office of Info Technology, on the Public Database. This presentation will apparently be posted online at
  • They are very excited about the database. They acknowledge that they are IT guys, not lawyers. Gotcha.
  • Will give access to "far more" product info than previously available. Will provide much faster access to the info.
  • Corporate participants can also get incident reports much more quickly and act much more quickly. [This is an obvious set up for an opportunity to judge the speed of your surveillance and response. I think it's best understood as the basis for compelling a certain helter skelter speed to respond. The populace demands it . . . .]
  • Chairman Tenenbaum noted that has gone live, although the database is not yet functional. She says you can track the progress of the database on the website and kick the tires of its new design before its March 2011 rollout.
  • They are looking forward to enhanced early detection of hazards.
  • Consumers will have access to all consumer reports and manufacturer replies when making consumer product choices. Oooh, this is a good one. I am so glad I gave comments on this database. Why not just let us put our comment letters through the shredder ourselves?
  • Will capture info on the submitters and the incident on the site.
  • Phase I is to "turn on the fire hose" and phase II is where the agency improves its infrastructure to handle it. They recounted the overall IT improvement plan.
  • Will use Social Media to drive traffic. Earlier in the day, Cheri Falvey noted the popularity of the video showing a carrot being severed by a stroller. Cute!
  • They want us to talk about our website at our Tupperware parties. Something to think about.

CPSIA - ICPHSO Update -Remarks of Chairman Inez Tenenbaum

Inez Tenenbaum gave a keynote address at lunch at ICPHSO today. I would have preferred to rely on the actual text of the speech before writing about it (not yet available online at the CPSC website), but wanted to give you my impressions quickly. If I took erroneous notes, I apologize and will correct errors, if any, later.

Critical points from the speech:
  • The speech was tough and hostile to "uncooperative" businesses.
  • She gave plugs to Consumers Union, PIRG and CEH. Draw your own conclusions. She balanced those plugs with a hearty pat on the back for RILA which she said has proposed its own uniform testing "problem". Oops, Freudian slip . . . she corrected herself to clarify that it is actually a uniform testing program. Program, problem - these are synonyms at the new CPSC.
  • She wants to dispel the "rumor" that the agency is overwhelmed by mandates and is distracted from its mission. Further to this point, with regard to Internet "rumors" like the foregoing, she recommends that you only believe websites that end in "dot gov".

Let me repeat that last one: Tenenbaum says you should ONLY believe websites that end in "dot gov". That means you shouldn't believe me, just her. Don't be cynical, guys. Speaking for myself, when a high public official tells me not to believe the media chatter, just to believe them, I always take the heartfelt advice. After all, they only mean to protect me from scurrilous gossip that I am too dumb to figure out for myself. For instance, I still believe everything John Edwards says . . . .

  • Regarding recalls involving a death, Tenenbaum warned companies NOT to blame parents in the press even if they are involved in litigation with the family. If they do, Tenenbaum promised (in strong terms) to "call [them] out". I was floored by this. Is she our mother now? Our mother government, perhaps.
  • She urged us to "stop fighting old battles" and get prepared. She was referring to the new era of the Public Database. Hmmm. We are to stop fighting old battles. Okay, everyone, put down your arms!
  • She reiterated that the CPSIA was the "most substantial and positive" development in the CPSC's (recent) history. She noted her love of the tracking labels provision and the removal of lead from zippers. Apparently my many comments and objections to tracking labels were ALL wrong. Darn! I must learn to love tracking labels. Repeat five hundred times, I must learn to love . . . .
  • On the subject of voluntary standards, she emphasized that if industry doesn't move fast to do it the CPSC's way, the agency will just put out mandatory standards more to its liking. She specifically cited the JPMA and ASTM on the crib standards. She sounds really open-minded on that one. Tenenbaum also recommends that industries proactively make their standards more stringent so the agency can make them MANDATORY. Or . . . the agency will just do it itself. Nice! I feel trust building, building, building.
  • She noted that the law applies to big and small companies ALIKE "for good reason". Hey, crafters, get the message - there will no free pass for you. Of course, this actually makes sense because product injuries should not be okay simply because the manufacturer is small. The way to fix things for small companies is to rework the definition of hazard to be limited to ACTUAL hazards only, which will focus safety efforts in a logical fashion, thereby helping out the small guys. The crafters are a victim not of fair rules that are blind to small business interests - but instead of a terrible law that is so fatally flawed that no business can deal with it.

Here's the best part:

  1. Chairman Tenenbaum said that she won't tolerate resistance to recalls that the agency wants to make. If you do dare resist, the agency will use its many tools to force the "right" outcome. Chairman of the CPSC or Chairman of the Politburo? Individual rights and due process are apparently a secondary consideration now, to judge from Tenenbaum's fiery speech. There's a big incentive to invest, right?
  2. Tenenbaum cited Toyota as an example of how "this government" will NOT tolerate slow recalls. Oh boy. Think of the Toyota food fight when you imagine the future of CPSIA enforcement. Recall first, ask questions later and let the media sort out the details. And be sure to bring the mighty down low. That sounds so fair!

There are many industries that are going to be victimized by this new enforcement regime. The list will be LONG.

Lots of tough talk, saber rattling and scare tactics. Of particular concern is the implicit erosion in corporate legal rights and the continuing demonization of businesses and business people. The Obamist populist rhetoric was quite recognizable, and one must wonder who Tenenbaum really intended to reach with the speech. Whoever they are, I hope they were happy. As for me, I got the willies and thought that whatever progress I sensed earlier today was an illusion.

Will the Dems ever learn?

CPSIA - ICPHSO Update - Strategic Plan Process

Remarks of Booz Allen Hamilton, Inc., consultants responsible for the new Five Year Strategic Plan for the CPSC.

BAH says
  • Agency is committing to protecting consumers (that's the angle).
  • The agency is committed to inclusiveness and transparency, so they will be asking for input from stakeholders throughout the process.
  • Will have focus groups and seminars in the near future. Looking for input and to validate their thinking.
  • Will keep you posted on progress and their ideas along the way. Can send in questions for clarification.
  • They NEED our input. Transformation efforts need engagement of all stakeholders.


From a CPSC Media Alert:

"CPSC Chairman Inez Tenenbaum will be giving a major address on the state of product safety, including a strong message to industry about meeting their responsibilities to consumers when it comes to recalls. Tenenbaum will also detail her consumer agenda for 2010, unveil a new Web site being launched and talk about crib safety."

This will take place at lunch today.

CPSIA - ICPHSO Update - Remarks of Mary Toro and Kris Hatlelid on Toxicity and Risk

Mary Toro is the head of the FHSA Enforcement Division.
  • Reviewed regulatory scheme in a fair amount of detail.
  • Incorporation of ASTM F963 brought into the law a solubility standard for heavy metals in surface coatings.

Remarks of Kris Hatlelid, Health Sciences:

  • Wealth of data on cadmium is from worker exposure or inhalation. There is almost nothing out there about ingestion, including whether it is a carcinogen when ingested. Studies also need to consider life stages. Longer term studies are done on mature animals, which might not be relevant to children. The challenge from the data and its inadequacies are considerable.
  • Among other things, Hatlelid noted the importance of dose-response evaluation. This reminds one of the old toxicologists' saying that "the dose makes the poison." She also mentioned exposure assessment and risk characterization. It is comforting to be reminded that CPSC scientists are still aware of these issues (I never had a doubt). How can we get the message to the junior scientists in Congress?

The notes on toxicity gives perspective on cadmium and the panic over jewelry. I hope someday the CPSC regains the upper hand on setting safety policy from the Associated Press.

CPSIA - ICPHSO Update - Remarks of Gib Mullan, Head of CPSC Enforcement

Gib Mullan's remarks on enforcement:
  • Import surveillance staff is now up to 18 people.
  • Using Commercial Targeting Analysis Center (CTAC) to stop things at the port. Can see what's coming in before it arrives.
  • Is working with the International Trade Commission, the folks responsible for HTS Codes (Harmonized Tariff Schedule). The CPSC is trying to "piggyback" on HTS code to identify the products of interest to the agency. Making "significant headway".
  • Imports samples rising at a rapid rate. Only about half of the samples fail.
  • Use of XRF is one of the agency's "secrets for success". Will use for cadmium, too. Only one-tenth of items scanned are being sampled. This implies that less than 5% of items scanned fail. Most items are not inspected, which is just a numbers game.
  • Field Investigation Division is back to a "growth mode", in 55 locations with 89 investigators. Expanding to Internet surveillance. They have seen a surge in eBay sales of recalled items after recalls are announced. Interesting!
  • Created email address for the public to report sales of recalled products. Now everyone can be on a cop on the beat, how wonderful. Hope I can still trust my kids. . . .
  • Retailer reports are rising. Participants in this program include WalMart, Sears, Amazon and others. 20,000 reports a year. Also reports by email and on the hot line 800 number are jumping. The total number of reports is cresting at 50,000 per year. All of this is BEFORE the public database. [Soon a system will be fully constructed that will make doing business in the U.S. children's product industry impossible, something to look forward to (this is my thought, not Gib's remarks).]
  • Field "blitzes" are increasing. Examples are pool and spas, drywall, drawstrings, cribs. This is a new activity although blitzes at the port are old hat, in my experience.
  • Defect Investigations Division has 19 compliance officers.
  • Recalls in 2009 DECLINED from 563 to 466. Number of units went up to an all-time high, 229 million units. Lots of big recalls in 2009. Should we feel safer now? I wonder . . . . Gib himself questions whether this is "good or bad".
  • Fast Track recalls are pretty steady. "Fast tracks" are recalls initiated by companies and brought to the CPSC's attention by the company itself. CPSC-initiated recalls are steady in the 50-60 range. Cases stemming from regulatory violations declined from 167 to 47.
  • Early warning system relating to cribs, bassinets and play yards is resulting in faster recalls. [No info on the availability of cribs and so on was provided, or the cost of those goods now.]
  • Joint recalls with Canada was done first on February 19, 2009 (that fills in a hole!). Total of 13 joint recalls in 2009 and 16 in 2010 to date. Expects more joint recalls in the future, broadening to other countries. Gib thinks this makes it simpler for companies going through recalls. Again, not sure how I feel about this but am not opposed in principle.
  • Regulatory Enforcement Division has 18 Compliance Officers now. This includes Chemical, Children's, Flammability and Mechanical hazards. Letters of Advice ("LOAs") fell a bit in 2009 by perhaps 12%. Only a small percentage result in recalls. In 2009, found 338 lead content violations and 118 lead in paint violations, mainly at the port. Recalls have come down considerably, almost to zero. Stops at the port are higher than that, but don't result in recalls necessarily. Those are declining, too.
  • Compliance Division now has 14 of its own attorneys
  • Civil penalties rose a lot in 2009. Gib specifically noted that he was not being "gleeful" about penalties but simply noting that penalties are a more serious risk now. I am okay with this tone, it is common sense. Penalties totalled nearly $9 million. I just hope that penalties moderate and become more purposeful, rather than political.
  • Made a STRONG point about fraudulent testing. The CPSC caught fraud in lighter testing and it led to criminal charges. They are working on another case now. This is great news as far as I am concerned. Cheating is a REAL problem (an actual problem, not an imaginary problem). The CPSC should find the bad guys and punish them. The resources of the agency are well-served if focused on removing these unscrupulous people from the market.
  • The agency is forging new alliances with the State AGs. They have a monthly conference call with this group. This is the CPSC's proactive effort to reign in the State AGs by making them part of the process. If this works, great. Again, we need to watch out for the lowest common denominator risk.
  • Working with China on implementing "best practices". Getting better, faster. China recalls went DOWN in 2009 and he anticipates improved safety in Chinese products. This, too, is a good use of agency resources. If we really are getting better, faster, Gib and his team should take a bow. Safety benefits everyone. Next up, consideration of the relationship between these initiatives and cost. Safety is an inherently economic subject. We need recognition of this basic fact.

I have omitted all reference to drywall here. This is a one-of-a-kind problem that seems unrelated to the CPSIA as far as I can tell. Likewise, I have not attempted to summarize the issues relating to ATVs and other tangential product/safety issues brought up by Gib. [He did say that repairs to the Rhino seem to be working well, btw.]

To Gib's credit, I found his presentation quite balanced with no particular effort to frighten. I appreciate the choice of tone for what could be a quite intimidating topic.

Gib's presentation was one of the few I can recall in the last two years on the topic of enforcement that did not materially raise my blood pressure or make me think dark thoughts about the future. Let's hope that the CPSC can build on this base to restore trust among the business community. Safety and fear mongering is an unholy alliance. The CPSC needs the cooperation and trust of the manufacturing base.

CPSIA -- ICPHSO Update - Remarks of Jay Howell on Hazard Reduction

Remarks of the CPSC's Jay Howell on Hazard Identification and Reduction (again, this is not a transcript, just the points I found interesting or notable on issues typically discussed here):

Reasonable Testing Program is applicable for "non-children's products". There are several elements to this:
  • product specs
  • applicable certification test
  • product testing plan
  • remedial action plans
  • program design and implementation documentation

Howell says these are common sense good business practices. I agree, by and large. Some of this is bureaucratic, however, and sets expectations better suited to mass market businesses than to small businesses. Will small businesses devote the considerable resources to this kind of paper pushing? If not, do these requirements set up those small businesses for possible big penalties? Perhaps.

Howell also discussed the need for "event-triggered testing". Again, this is mainly common sense. On "periodic testing", Howell acknowledges that there is no "one size fits all" answer to questions of frequency. He points out that testing frequency relates to the potential size of recalls. The more frequently you test, the smaller the batch size and the smaller the potential recall (with tracking labels). This is interesting if they actually will allow businesses to make this assessment themselves. The ability to make risk-reward choices would be a step in the right direction. One can only hope . . . .

He advises that you consider these factors:

  • severity of possible injury
  • production volume
  • variability in test results
  • test results close to applicable limits
  • testing costs
  • product complexity or uniqueness
  • hidden hazards
  • history of incident reports, warranty claims and returns.

Again, I consider this list to be sensible and basically a description of how to make a "duty of care" decision about your products. This kind of coaching by the CPSC is highly constructive and valuable. My only worry is whether this is a set-up for gotchas. I hope to someday restore my trust of the agency so that I can stop worrying about gotchas. This could be a "gotcha". The CPSC needs to make sure that coaching is coaching, not a set-up.

The CPSC is sensitive to the issues of small volume producers, custom products, and the need for component part testing rules. There are a lot of issues buried in here. WATCH OUT for these rule releases and REMEMBER that your silence will be taken as TACIT APPROVAL. You will NEED TO send in detailed comments.

Jay also confirmed to me earlier today that the CPSC is now doing some recalls jointly with Health Canada. I noticed this last week but don't know when it started. Not sure whether this is good or bad, especially since safety issues for manufacturers should be dealt with across all sales regions. Not sure how this will affect costs or risk. Legal actions in other countries can be excruciatingly expensive, and if encountered, has the potential to kill small businesses instantly.

CPSIA - ICPHSO Update (Remarks of Cheri Falvey, General Counsel)

The annual ICPHSO conference in Washington, D.C. takes place this week, and today is "CPSC Day". The first speaker was Cheri Falvey, the General Counsel of the CPSC.

She recommends that we "get over" the testing requirements and start to focus on the public database. Hmmm.

Other salient points:
  • Stay on testing and certification doesn't mean you can stop testing. This is a simple point - you need to comply with the standards, and if you don't test, you won't know. No shock here, and presumably, not an issue for responsible companies.
  • No certification will be required on tracking labels. This is "definitive".
  • Component testing WILL be allowed but final rule is not available. Interim guidance permits it.
  • Lead exclusions relieve you from testing. Good news for all you ruthenium users!
  • Phthalate testing is ONLY required for "plasticized component parts" and paints. This is news to me - do any of you know where this is written? In any event, this is literally what Falvey said, so tell your testing labs. Please note that this means you DON'T have to test the entire product.
  • The CPSC staff is still working on inaccessible components for phthalate tests. That said, you STILL need to test inaccessible parts for phthalates until they figure out how to give you a pass.
  • The CPSC has "gotten incredibly positive feedback" on the new public database. This means your silence is being taken as your tacit approval. Happy?
  • 48 Federal Register notices have been published by the CPSC since the awful CPSIA was passed. Bureaucrats everywhere take note: that's some serious paper pushed.
  • Mandatory recalls require disclosure of factory identity. Whether this applies to voluntary recalls has not been determined.
  • Several rules to come out in the next four weeks: Civil penalties, meaning of "Children's Products" under CPSIA and the meaning of "Toy" and "Child Care Articles" under the CPSIA. The big issue for "Children's Product" is how to deal with the "intent" aspect of the rule, and she is focusing on the "primary" intention of the "manufacturer". The definition of "Toy" may diverge from the ASTM F963 definition. She seems to be hinting that the definition of "Toy" may be BROADENED ("things made for children").
  • They will also bring out rules on "public accommodation" under the Virginia Graeme Baker Pool and Spa Safety Acts, as well as process and procedures for the awful Public Database.
  • The Public Database will "increase the pressure" on the agency to "run down everything". So the Public Database is projected to be used to create a more rigid and unforgiving system, a tacit strict liability safety regime. Happy? Think of the first Tuesday in November.
  • CPSC is discussing cadmium with State AGs and is studying the current voluntary standard for cadmium or other heavy metals in the surface coatings of toys. They are looking at whether to drive the standard into the substrate. Book it, Danno!
  • Chemical regulation is coming. BPA is an example of the beginnings of this effort. They are looking at whether the rules on cadmium and other metals as a maximum soluble migrated element test (EN71) total content test (a la lead-in-substrate). The agency wants feedback on this.
  • Dialogue with State AGs are ongoing and joint efforts are being considered. Not sure if this is good or bad, but it has the potential to reduce the risk of wild cards. That said, the State AGs are often wacky on safety and so there is a lowest common denominator risk here.

I have omitted Falvey's comments on cribs, drywall and other issues tangential to the issues discussed in this space over the last year.

Falvey didn't mention anything about the impact of these many new rules on the marketplace. That seems to not be her concern. I certainly hope this doesn't mean she is oblivious to the issue. I know our CFO and sales reps aren't. She did articulate a system to put an end to small businesses however, when she urged us to think about tracking labels on everything, integrating certifications, testing, labels. No mention of what this would achieve or why it would be worth the expense (the top priority for devotion of our limited capital) or how small businesses could start up in this environment. Love them Democrats! Think of this as their latest jobs program.

One thing she was seemingly obsessed with is Twitter. She brought up the possibility that we were tweeting perhaps ten times. Does this mean she knows we're going to tell you what she said, or that she resents it? Not clear. It may have been funny the first time she did it (may . . . have . . . been) but it wasn't funny as she repeated herself. Intimidating free speech is unbecoming for a General Counsel.

The negatives in her presentation seems to confirm the increasingly political nature of the CPSC where safety is a secondary concern to political winds. Is phthalates such a danger that it needs to be driven out of all children's products? The provision made its way into the law because of the work of Diane Feinstein, not a well-known scientist. Now this Californiazation effort has taken on a life of its own. Get used to creep in these rules. That's the conclusion I reach from listening to Falvey.

Tuesday, February 16, 2010

CPSIA - Misery Loves Company

Well, well, look who's haunting Toyota these days - if it isn't David Strickland, Administrator of the U.S. National Highway Traffic Safety Administration. Strickland is well-known to the cognoscenti of the CPSIA as the lead staffer in the Senate for our favorite law and as one of its principal authors/shepherds. Having wreaked sufficient havoc with the CPSIA sufficiently to impress the big boss, he was rewarded by Obama with the top job at NHTSA where he can now work his magic to reduce Toyota and the auto industry to a steaming hulk of debris in short order. And that's not all - Mr. Waxman bared his claws on Toyota, too, asking who knew what when, holding hearings, providing more and more fodder for the media.

How did Toyota get in this mess? Well, they had a big recall, and the newspapers, TV commentators and panicked members of Congress worked in concert to create a frenzy. Wow, that sounds somehow . . . familiar. Isn't this an election year, too, just like 2008? In other words, a really good time to identify a bad guy, whip up a crisis and then solve it? You know, to protect the populace just before polls open, having worked the people up into a lather. The time-honored, sure-fire formula for reelection. . . . . The CPSIA formula being rolled out again also includes calls for massive corporate penalties, spiraling litigation, increased regulation and more government involvement in oversight of the industry (because everything is better with more government). Sounds GREAT!

And who better to operate this paranoia machinery than Mr. David Strickland in partnership with Henry Waxman? With Strickland's credentials, it's only a matter of time before Toyota is so pilloried and shamed that it will become a shadow of its former self.

I have been warned to stay away from the Toyota story. I have been told, "everybody hates Toyota in Washington", no sympathy is possible. Nonetheless, I resent the effort to destroy a great company because the opportunity to create a crisis presented itself for some Democrats in need of headlines. The parallel to the CPSIA saga is just too compelling. Let me ask you Toyota owners - is this feeding frenzy what you want? Have you grown tired of the good service at the Lexus dealership, the strong record of reliability of your Camry, the innovation of your prized Prius? Wasn't it just months ago that you drove your Prius as some sort of Green badge of honor? Have you lost confidence in Toyota based on your personal experience . . . or because of the relentless barrage of bad publicity on TV and in the papers?

It's a great tradition in Congress these days - bring the mighty down low, and be sure to erode all confidence in business enterprises. It's a hallmark of leading Democrat today. With Strickland in charge at NHTSA, you can be sure that the damage to Toyota will be severe.

Saturday, February 6, 2010

CPSIA - Schylling Agrees to a $200,000 Fine for Lead in Paint

What is the principal goal of the CPSC - to protect consumers from unsafe consumer products, or to punish legal transgressors? If consumers haven't been harmed, how should this aftect the agency's decision to punish?

These questions come to mind when considering the most recent punishment meted out by the CPSC. In particular, on February 4th, Schylling Associates ("Schylling") agreed to pay a $200,000 fine for lead-in-paint violations disclosed in 2007. How does this fine affect the CPSC's mission?

Background: I have no personal knowledge of this situation, although I know the company and some of its principals, and I have had no contact with anyone associated with the fine. My summary of L-I-P recalls from 2007 shows five Schylling recalls, although the CPSC press release does not relate to all of them. The recalls total about 80,000 pieces sold from June 2001 to May 2003. The fine works out to about $2.50 per unit for violations almost seven years old or older. No injuries were reported since the sales began almost nine years ago.

Schylling apparently promptly recalled one of the items upon discovery of the infraction in March 2002 and also terminated the factory. Here is Jack Schylling's letter to his dealers describing this incident. This item comprised a relatively small portion of the defects. Schylling apparently (mistakenly) believed that the other L-I-P problems had been resolved and therefore did not recall them until 2007 (see below).

In August 2007, a Chicago Tribune article featured a defective Schylling top purchased in an online auction; consequently, several additional L-I-P violations dating back to 2001-2003 were uncovered, promptly disclosed to the CPSC and recalled properly.

Judging from the press release and the settlement agreement, this is a messy fact pattern with some poor judgments. bad operational execution and some violations of serious rules. Schylling was a repeat offender, albeit by all appearances not because of bad intentions. No one was hurt.

That Schylling was in the wrong is only part of the story. Was the fine the right move by the CPSC?

The Schylling Fine is Excessive and Unrelated to the CPSC's Mission to Protect Consumers. The CPSC is not the Department of Justice. They are the Consumer Product Safety Commission - the agency "is charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products under the agency's jurisdiction." I do not believe this fine is consistent with their mission.

In this case, the fine is removed from the protection mission, as all defective pieces were recalled from the market voluntarily and pursuant to voluntary disclosure. This is "good behavior" since the company sought to mend its ways and fix the problem. In addition, because the offenses lasted two years ending almost seven years ago, this matter is old and cold. Addressing it now seems to unfairly reach back in time. Finally, the amount of the fine is arbitrary and therefore unfair. The size of the fine cannot be related to other fines for similar offenses.

Manufacterers Are Likely to React Badly to Fines Intended to Make Examples. If the mission of the agency is to protect consumers, all of its activities must be judged against that mission. In this case, the fine for Schylling would need to make consumers safer to be consistent with the mission. Ironically, I think it is quite possible that this excessive fine may endanger consumers by discouraging manufacxturer cooperation.

The striking thing about this fine is not simply its excessive size - it is that the fine seems motivated by retribution, not consumer protection. This company appears to have tried, perhaps ineptly or even improperly, to do the "right thing". They turned themselves in voluntarily. The product was removed from the market voluntarily, although not with all the required CPSC disclosure or as timely as possible.

Ultimately, to be successful, the CPSC needs manufacturers to come forward. The trust factor is crucial. When the CSPC acts to squish people who turn themselves in, perhaps to set an example, businesses may conclude that they cannot afford to throw themselves on the mercy of the CPSC. The Schylling action reinforces the notion that the CPSC is not a trustworthy partner. And this is a very damaging notion for consumers.

Here at the Nuremberg Toy Fair, the tradeshow is abuzz with several examples of companies who suffered grievous losses by disclosing problems to the CPSC. These issues were never of a life-threatening nature. However, the CPSC defaulted to remedies that placed the maximum risk on the manufacturer. Now, to make matters worse, the CPSC is adding large, arbitrary penalties for companies that come forward. Do the math - manufacturers may well see disclosure as a bad deal. Highly publicized punishments like Schylling destroy trust. While some manufacturers may be "scared straight", many others may simply drop off the radar altogether.

Other agencies in the U.S. government see things more clearly. Customs, for instance, grants full immunity from penalties if you confess your sins before official notice of an investigation. While this too is painful, at least you control you control your own fate and pay no penalties. Customs' policy encourages disclosure, which is what Customs wants. I contend that disclosure is what the CSPC should want, too - it needs to know what defectivce products are "out there" to protect the public.

A big fine was not the agency's only possible remedy here. It did not have to hit Schylling with a huge penalty, or any penalty at all. Schylling could havc agreed to implement new safety procedures or to conform to certain standards for future behavior. The CPSC also could have agreed with Schylling on some sort of public service. These options would have sent a strong message to Schylling about the consequences of future infractions, while encouraging openness and cooperation with the manufacturing community.

Unfortunately, a reasonable approach would not satsify a ravenous pack of Democratic members of Congress, consumer groups and newspaper editorial boards who are demanding blood. Giving in to populist outrage buys the CPSC time . . . but at a high cost. A punishment-oriented CPSC will be defeated by its own shortsightedness. As more and more people slink into the shadows, this CPSC might accuse the manufacturing community of venality and launch even stronger actions against bad behavior. A safety police state is possible. Is that what we want?

If the CPSC persists in this approach, it will soon eat its own cooking. It's time for the mania and blood lust to end, and for rationality to return to safety administration. Fear does not have drive regulation of these markets.

CPSIA - Let's Play a Cadmium Game!

We all know that cadmium is dangerous. After all, the Associated Press and seven Senators told us so. I have asked the innocent question - if cadmium is so dangerous that we absolutely cannot tolerate it in jewelry, what else is similarly dangerous? We have a business making children's products so it's important that we understand this critical question, right?

At this point, other than whatever the AP decides to print tomorrow, we know that anything with lead is really dangerous. The CPSC, following orders, determined that palladium, rhodium, osmium, iridium and ruthenium are safe. They blessed these materials for inclusion in children's products in August 2009 so they must be safe, right? Here's what the CPSC said: "In addition, in the proposed rule, the Commission preliminarily determined that certain metals and alloys did not exceed the lead content limits under section 101(a) of the CPSIA provided that no lead or lead-containing metal is intentionally added. The metals and alloys considered included surgical steel, precious metals such as gold (at least 10 karat); sterling silver (at least 925/1000); platinum; palladium; rhodium; osmium; iridium; ruthenium."

So here's the game: match the following statements from Wikipedia about these elements with the element itself. [To verify my quotes, just go to Wikipedia and search for the element.]
  1. Cadmium
  2. Palladium
  3. Rhodium
  4. Osmium
  5. Iridium
  6. Ruthenium

A. "[This element] reacts with oxygen at room temperature forming volatile [element] tetroxide. . . . [Element] tetroxide is highly volatile and penetrates skin readily, and is very toxic by inhalation, ingestion, and skin contact."

B. "[This element] is also a potential environmental hazard. Human exposures to environmental [element] are primarily the result of the burning of fossil fuels and municipal wastes. However, there have been notable instances of toxicity as the result of long-term exposure to [this element] in contaminated food and water."

C. "[This element] chloride was at one time prescribed as a tuberculosis treatment at the rate of 0.065 g per day (approximately one milligram per kilogram of body weight). This treatment did have many negative side-effects, and was later replaced by more effective drugs."

D. "The compound [element tetroxide] similar to [XXX] tetroxide, is volatile, highly toxic and may cause explosions if allowed to come into contact with combustible materials. [This element] plays no biological role but does strongly stain human skin, may be carcinogenic and bio-accumulates in bone."

E. "[C]hemical complexes of [this element] can be reactive. Lethal intake for rats is 12.6 mg/kg of [element chloride] [This element] compounds can strongly stain human skin. The element plays no biological role in humans."

F. "Very little is known about the toxicity of [this element's] compounds because they are used in very small amounts, but soluble salts, such as the [element] halides, could be hazardous due to elements other than [element] or due to [the element] itself."

It's good to know that only one of these items is considered dangerous. I feel safer already!

Wednesday, February 3, 2010

CPSIA - What Constitutes "Safe"?

One of the tragedies of the CPSIA melodrama is that the consumer groups have completely hijacked the concept of safety, turning it utterly away from concepts of risk assessment. To what, you say? Away from management of identifiable risks to avoidance/elimination of perceived risks. In other words, Congress and our regulators now ignore the data on risk and focus instead on the possibility of risk. The POSSIBILITY of injury, not the actuality of injury.

How much of a difference is this? Pretty big, to judge by the frenzy over cadmium in jewelry. Seven Senators have sponsored a bill called the Safe Kids' Jewelry Act. This law would ban the use of cadmium in kids' jewelry. Is this "good"? I am not sure how to answer that. To my knowledge, no one has identified a single injury from cadmium in children's jewelry. It is undeniable that cadmium is a bad element and has the potential to harm. Ergo, jewelry with cadmium is "bad"? I can imagine circumstances where cadmium in jewelry might hurt a child. Then again, if it were so dangerous, where are all the victims?

If this is going to be the new standard, whether a product MIGHT harm someone, I think we are cooked. Assuming that "prevention of possible injury" is to be used as the standard to evaluate products or components of products, let me ask a few questions to see if I understand the "new rules of the road":
  • How certain must the prospect of injury be?
  • How specific must the circumstances of the prospective injury be?
  • Are we talking about probable injury (more than 50%) or possible injury (odds greater than 0%)? How are those odds to be measured - by unit sold, by contact, by owner, by year, by lifetime use? What's "reasonable"? [Does anyone care what's reasonable?]
  • Are all things that could possibly injure a child now illegal on the same basis?
  • If the answer is yes, when will all those other products be banned and/or recalled? Is equity in the treatment of all products "important"?
  • If the answer is no, then where do we draw the line?
  • How relevant is it that no injuries have been reported?
  • How many incidents are required before we declare a product or substance illegal or recalled? How many newspaper articles, editorials or CEH lawsuits are required?
  • What responsibility do we have to be consistent in the administration of these rules?

Consistency, that's important, don't you think? If cadmium is now tacitly illegal because it might harm a child, do we have to make everything with the possibility of injury to children illegal?

Presumably, since no injuries to children from cadmium has been reported and the Washington Post confirms that doctors do not perceive cadmium as a serious risk (perhaps because it was not prevalent in house paint or in gasoline, hmmm), then anything with the same level of prospective risk would be illegal. That's more or less everything from water to chicken bones to lead to ruthenium. [Pardon me, ruthenium, one of the world's most expensive and dangerous elements, is a-okay to include in children's products.] Why then aren't we closing swimming pools which cause more than 250 deaths each year? What about water - you can drown in two inches of water. No more showers?

Is there something special about cadmium, besides that it has appeared in an Associated Press article?

The mania over the prevention of possible injury has turned the business environment into a feeding frenzy that will drive the business community down, down, down. Is that in anyone's interest? Will we all be safer if we have nothing to buy?

Please consider that the House Energy and Commerce Committee has today weighed in on the Toyota recall. Yes, the same Henry Waxman who is torturing our industry has now turned his talons and sharp teeth on Toyota. Toyota enjoys one of the finest reputations for quality and service in the world. It is renowned as a business leader - and proactively took strong medicine in its gas pedal recall. This is not enough for the venomous Democrats who hate businesses. They need to dig deeper and perhaps damage Toyota enough to help GM and Chrysler, owned by the U.S. government and unions. Bringing the great low, that's the new American way of the Democrats. It makes me SICK.

I want to close with a note about cows - did you know that cows are killers, too? Yes, they are - the New York Times reports:

"The image of cows as placid, gentle creatures is a city slicker's fantasy, judging from an article, published on Friday by the Centers for Disease Control and Prevention, reporting that about 20 people a year are killed by cows in the United States. In some cases, the cows actually attack humans -- ramming them, knocking them down, goring them, trampling them and kicking them in the head -- resulting in fatal injuries to the head and chest."

COWS kill 20 people a year, cadmium has apparently killed ZERO. We are running pell-mell to ban cadmium from jewelry because a misguided newspaper article fueled panic. Are cows next? Should they be? If cadmium jewelry goes away and cows stay unregulated, will respect for our laws remain?

Respect for Congress, that's another thing.