Thursday, April 29, 2010

CPSIA - A Quick Thank You

I wanted to thank all of you who reached out to me via email, phone or blog comments with words of encouragement and appreciation. Your support means a lot to me, and I wanted you to know how motivating it is. We had a big opportunity today, all of us, and I had the good fortune to take the stand on your behalf. You were there and I hope you feel well-represented.

I hope to gather my thoughts for you on today's hearing and share my conclusions with you in the next few days. In the meantime, I can say I think it was a good day of open dialogue and exchange of views. This can only help. Time will tell.

Thanks again!


CPSIA - Today's Hearing Testimony

Here is the text of my oral testimony and written testimony from today's hearing. For your convenience, here are the written statements of the other witnesses:
  1. Rosario Palmieri, Vice President for Infrastructure, Legal, and Regulatory Policy, National Association of Manufacturers
  2. Paul Vitrano, General Counsel, Motorcycle Industry Council
  3. Jim Gibbons, President and Chief Executive Officer, Goodwill Industries International
  4. Dan Marshall, Handmade Toy Alliance
  5. Rachel Weintraub, Director of Product Safety and Senior Counsel, Consumer Federation of America
  6. Steve Levy, American Apparel and Footwear Association

The hearing today was apparently available only by audio feed. That is unfortunate because it was good theater, you would have enjoyed it. I don't know if the video will make an appearance (ever) but when we get links to whatever media is available, I will post it for you.

CPSIA - Hearing Webcast Link POSTED

The House Committee hearing website has posted THIS LINK for today's webcast. As noted, the hearing is scheduled to start at 10 AM EST.

Tune in and enjoy our day in court!

Wednesday, April 28, 2010

CPSIA - For You Conspiracy Theorists, A Seventh Witness Has Been Appointed

I have just been informed that the ranks of the six corporate witnesses in tomorrow's hearing has been augmented by none other than Rachel Weintraub of the Consumer Federation of America. Perhaps she was added for her expertise on the problems we have in running our businesses under the awful CPSIA. That will be quite helpful.

Any idea how this happened? I wonder . . . .

Tuesday, April 27, 2010

CPSIA - Witness List for Thursday's Hearing in Washington

The House Committee on Energy and Commerce has posted its witness list and briefing memo on the web page for the upcoming hearing on the Waxman Amendment (CPSEA). Thursday's hearing is scheduled for 10 AM EST and will be webcast. I do not have a link to the webcast at this point and may not have it before the hearing. You should be able to find the link at the foregoing webpage. If you miss the hearing, it should also be available for later viewing on the Committee site. I will post that link when available.

The witnesses will be:

  • Rosario Palmieri, Vice President for Infrastructure, Legal, and Regulatory Policy, National Association of Manufacturers [N.b., the briefing memo says it will be John Engler.]
  • Paul Vitrano, General Counsel, Motorcycle Industry Council
  • Jim Gibbons, President and Chief Executive Officer, Goodwill Industries International
  • Dan Marshall, Handmade Toy Alliance
  • Steve Levy, American Apparel and Footwear Association
  • Rick Woldenberg, Chairman, Learning Resources, Inc.

The briefing memo states: "The following organizations support the text of this legislation and urge its enactment: the National Association of Manufacturers, the Retail Industry Leaders Association [Ed. Note: this is Wal-Mart and Target], the Motorcycle Industry Council, the Handmade Toy Alliance, and Goodwill Industries, Inc." So, four of the witnesses are already on record as supporting the amendment.

I haven't changed my view that the Waxman Amendment should be OPPOSED.

As if to amplify my point, the briefing memo hawks the amendment's beneficence to small business: "To this end, the legislation provides three major forms of relief . . . Relief for small batch manufacturers and other businesses by allowing the commission to approve alternative testing requirements for certain small batch manufacturers, by requiring CPSC outreach and assistance to small businesses, and by providing that the law’s phthalates limits shall not apply to inaccessible component parts."

As I have explained in the past, there are NO alternative testing methods available two years after passage of the CPSIA. Too bad for small business, huh? Thus, there is no possibility of relief under this provision. Still, the committee apparently thinks that "outreach and assistance" will do the trick. What is that, psychiatry for small businesses? There are days when I think I need it, too . . . .

It's also worth noting that the exception to the phthalates ban for inaccessible parts - portrayed here as some sort of small business bonus - was included in this amendment at the urgent request of two famous small businesses who consider it essential for the smooth operation of their businesses. You know them well, they have stores in your neighborhood - Wal-Mart and Target. Now that's some straight shooting by the Majority, isn't it?

Anyone still wondering why I feel small business is getting the short end of the stick?

I fail to understand why Wal-Mart and Target get the ears of this committee but small business interests are completely ignored or brushed over. This is a really sad turn of events for our federal government.

Remember, if the committee doesn't do the hard work of fixing this bill, REALLY fixing it, those of us who survive will be back. This issue isn't going away.

Tune in on Thursday. I'll do my best for you.

Monday, April 26, 2010

CPSIA - New Definition of "Children's Product" Published - Did You Catch It?

The CPSC apparently published a new definition of "Children's Products" last Tuesday in the Federal Register to no fanfare whatsoever. This little morsel clocks in at only nine pages but it goes in the heap with the other 579 unread pages of miscellania spewed out by the CPSC in the last month. Everyone - quit your jobs so you can keep reading this stuff!

Ah, but the fun doesn't end there. Try to find this document on the vaunted CPSC website. It's not under "What's Hot?" and it wasn't mentioned in a press release. Until last week, even finding the definition of "Children's Product" on the site involved quite a bit of hunting and pecking. They remedied that by creating a new category under "CPSIA by Topic" but who would know it's there? You have to sense its presence and then go find it. This is "Where's Waldo?", CPSC-style.

And the final "kicker" - the definition changed from the last publication of this rule on March 19. Since that time, there has been a Commission hearing and much industry chit-chat over the original definition approved by the CPSC Legal Department. Supposedly, this (unread) new definition reflects changes that I am told I will like. The CPSC Legal Department approved this new and revised definition, too. And the conformed or redlined copy for me to read? Nowhere to be found.

What a lovely way to spend my time. Reading rules, digesting rules, commenting on rules, rereading rules, trying to figure out what's changed, reviewing my last analysis, connecting all the dots, reworking our internal processes again and again and again . . . .

This is the CPSC's full employment plan. They may be able to solve the unemployment problem all by themselves! Thanks for everything, guys.

Sunday, April 25, 2010

CPSIA - Lead in the News

The New York Times published an expose on lead poisoning earlier this week. Here's a shocker - APPARENTLY, the main cause of lead poisoning in American children is lead house paint (leaded gasoline having been long eliminated as a source of lead in our environment). Isn't it strange that the Times never mentioned the dangers of educational products, toys, t-shirts, ATVs, bikes, pens, rhinestones (oooo, rhinestones, so dangerous!) and the like? What 's wrong with those people?

The article cites an example of the lead poisoning problem:

"But the invisible threat persists in the city’s so-called lead belts — areas of Brooklyn, Queens and Staten Island where the rates of children showing elevated levels are routinely the highest in the city. Last summer, E.P.A. officials took hundreds of soil samples near a long-closed lead factory on Staten Island suspected in the chronically higher rates of lead poisoning among children in the North Shore neighborhoods of Port Richmond, Stapleton and St. George. The area was once filled with heavy industry, and lead contamination can be found in parks and industrial sites. Of the children tested from those neighborhoods, about 7 out of 1,000 had elevated lead levels, health department data show, compared with a citywide average of 4.5 out of 1,000.

But when the soil sampling results came in last month, the lead contamination found in six residential blocks was traced to peeling paint, not the plant. . . . Walter Mugdan, the E.P.A.’s regional Superfund director, said that the paint had contaminated backyard soil that could also harbor traces of leaded gasoline."


The NYT article points readers to the Lead home page on the CDC website. If you click forward to the poisoning prevention page, you get the straight scoop from the CDC: "Lead-based paint and lead contaminated dust are the main sources of exposure for lead in U.S. children. Lead-based paints were banned for use in housing in 1978. All houses built before 1978 are likely to contain some lead-based paint. However, it is the deterioration of this paint that causes a problem. Approximately 24 million housing units have deteriorated leaded paint and elevated levels of lead-contaminated house dust. More than 4 million of these dwellings are homes to one or more young children."

[You should also check out the NYT video on the CDC's efforts to eliminate lead poisoning.]

With House hearings on the CPSIA pending this week, this reminder of the real threat to children's health is helpful. As we have been saying for two years, the real health risks in children's products today are lead-in-paint and leaded jewelry. [I am not even so sure about jewelry but accept the concern as legitimate.] There is no hint that the CDC is any way fixated on the same "threats" as your Congress. Interestingly, if the issues spotlighted by the CPSIA were so serious, they might show up as centerpieces in CPSC outreach programs. After all, the CPSIA did NOTHING to remove these supposedly dangerous items from American homes and schools - it merely ended new supply. As the longstanding effort to remove lead house paint makes clear, our government is capable of acting to remove dangerous products or conditions from our living spaces. Congress made no such effort here - and the CDC saw no need either.

Our businesses have been torched by a phobia. It's shameful.

For a lighter news item about lead perils, check out this criminal case from Texas which sent the lead perpetrator to cool his heels in jail. Don't worry, it was just something fishy.

Saturday, April 24, 2010

CPSIA - Good News! Little Mattel Gets Much NEEDED Relief.

Wipe away those tears and cancel the bake sale, little Mattel (last quarter's revenue: $880 million) received more relief from the CPSC. Suffering under the burden of only seven certified in-house labs to do its safety testing, Mattel this week received CPSC approval for two more firewalled internal labs to do its testing at a fraction of the cost of using pesky independent labs. The newly-approved labs, one more in China and one in Thailand, promise to make things much easier for Mattel. Imagine the crippling overhead they might incur sending samples from one factory to another if they didn't have these new approved labs. Read all about the celebrations over the CPSC's well-timed beneficence!

Mattel, the generous sponsor of a record $2.3 million CPSC honorarium (that's what we call fines now), lobbied for the provision in the law giving it the right to opt out of independent laboratory safety testing during the drafting of the CPSIA. As Mattel is such a sympathetic supplicant, having recalled more than 20 million toys in 2007 alone, Congress was all ears and gave them what they wanted. [Search this link for "Mattel" and "Fisher-Price" and you will find 19 recalls between November 2006 and today, totalling more than 16.5 million units in the U.S. plus many millions more outside the U.S.]

This is the signal the children's market was waiting for: a forgive-and-forget approach by the CPSC. As a small business operator, I sure am glad to know that the CPSC is big-hearted enough to overlook a long track record of serious legal violations. Shame they hadn't adopted this generous spirit when Daiso pissed them off.

Oh, did I forget to mention that Mattel ALSO funded another $1.1 million CPSC honorarium (fine) for failing to report 116 FIRES caused by one of its products? According to Ann Brown, then Chairman of the CPSC, Mattel knew about these fires for "years" before reporting them. Oopsie! [Check out the WSJ article on Mattel's little problem with safety disclosures. I am sure you will cherish the pictures of the burned-out garage.] Don't worry, the CPSC has decided everything's in order for Mattel to handle safety all by itself. Sleep well, America.

This makes a lot of sense to me.

And for the rest of us who can't afford to set up or manage our own "firewalled" laboratories? We can enjoy the bounty of the small batch manufacturer's relief in the Waxman Amendment, or just hire outside labs. You know, like Mattel doesn't want to do . . . hey, what's going on here?!

At least we know Mr. Waxman cares about somebody.

CPSIA - I Will Appear as a Witness in Thursday's House Hearing on CPSIA

I have been invited to appear as a witness at Thursday's hearing before the House Committee on Energy and Commerce's Subcommittee on Commerce, Trade and Consumer Protection. The hearing on the "Consumer Product Safety Enhancement Act of 2010" (the Waxman Amendment 2.0 in its latest form) will take place at 10 AM EST on Thursday, April 29 at 2322 Rayburn House Office Building.

The hearing will be streamed live, but I don't have the link to give you yet. You may be able to find it at this link on Thursday or on the home page of the committee. I will try to get the link posted in my blog before showtime.

I intend to tell my story and your story to the committee and look forward to exploring the bedeviling issues of the CPSIA in the open air. If you have any ideas or suggestions for my testimony, please feel free to share them here, or send me an email. Thanks.

Thursday, April 22, 2010

CPSIA - Mea Culpa, I was WRONG!

I am man enough to admit when I'm wrong - and I was wrong the other day. To my readers, I apologize. I probably left you with the impression that the "common toy box" is not a safety concern and that building the entire CPSIA edifice around a half-baked idea was a grievous mistake. And now look who's eating crow . . . me!

One of my readers points out that the common toy box is sadly a very dangerous thing after all and has caused injuries and even deaths over the years. My reader actually had data to share. Common toy boxes have been recalled 14 times since 1974 by the CPSC. One of the recalls was for lead-in-paint but that resulted in no injuries. The other 13 were for lids closing suddenly and entrapment, and tragically two deaths and several injuries were reported.

You can find these recalls at this link by searching for "Toy Chests/Trunks".

The Waxman staffers are right - the "common toy box" is a serious issue. Unfortunately, they don't know seem to know WHY toy boxes are a safety issue. It's not what's inside a common toy box that causes problems - it's the common toy box ITSELF.

We might make life a bit simpler by banning common toy boxes, and then restoring the previous version of the CPSA while we're at it.

CPSIA - But Who Will Test the Test Lab Testing Testers???

Demonstrating that creative, innovative flair we look for in our regulatory agencies, the CPSC has just announced its discovery of a much-needed new testing protocol, the test lab testing tester. Okay, so you say someone's been playing with their clacker balls a bit too much, but heck, they gotta know what they're doing, right?

Embedded deep in the impressively long 160-pager entitled "Proposed Rule: Testing and Labeling Pertaining to Product Certification, April 1, 2010", the CPSC reveals that there's trouble in La-La-Land over variances between lab tests performed at different certified labs: "Another comment noted that variations in sample preparation by conformity assessment bodies can and do lead to differing test results. One comment, noting lab-to-lab variations in test results for the same product, suggested that CPSC should require CPSC-recognized third party conformity assessment bodies to conduct blind correlation studies and lab audits."

Oy vey, what do people EXPECT? The CPSC can't help out on every niggling problem: "The Commission's limited resources preclude CPSC from directly conducting verification of the numerous CPSC recognized conformity assessment bodies. Additionally, the activities and requirements for accrediting conformity assessment bodies are outside the scope of this rulemaking."

Case closed?

Au contraire, Pierre! This CPSC will face down every challenge! They ain't no teething tiger any more, they are a Lion of Safety now, so they came up with the perfect rule to resolve this dilemma. After all, lest we forget, you CAN'T be too safe! Here's what they came up with:

"Proposed § 1107.24(a) would state that a manufacturer is responsible for verifying that its children's products, as tested by a third party conformity assessment body, comply with applicable children's product safety rules. For purposes of proposed § 1107.24, "verification" would mean testing that demonstrates that the test results from one third party conformity assessment body are consistent with the test results from another third party conformity assessment body for a particular children's product. Proposed § 1107.24(a) would require a manufacturer to send samples of a previously certified children's product or a children's product that previously has been tested periodically pursuant to proposed § 1107.21 to a third party conformity assessment body for verification.

. . . . Proposed § 1107.24(b) would require verification to occur on a reoccurring basis and be conducted at a frequent enough interval to provide a high degree of assurance that the children's product that had been certified previously continues to comply with the applicable children's product safety rules or that the periodic test for the children's product was performed correctly."

]Emphasis most enthusiastically added.]

This is GENIUS! Thank heavens we have the CPSC to protect us. Who else would have spotted this terrible and threatening gap in our consumer safety network? But having added this new layer of "protection", aren't other safety holes now visible? I call on the CPSC to bring out rules clarifying:
  • Certification of testing testers;
  • Certification of testing tester testing testers (you need those, too);
  • Certification of testing tester testing certifiers;
  • Rules for tolerable variances among testing labs for each certified test, record keeping on all test results and variances for at least 100 years, and plans of remediation for every conceivable variance for each possible test under all conceivable circumstances;
  • Rules for a new agency to check all the work of the CPSC and to reconsider and rewrite every rule they have ever written, plus record keeping and hearings and comment periods for this new agency;

I think the new agency to check the work of the CPSC should be called the Consumer Product Safety Commission Checking Commission for Safety Enhancement and Verification Processes (CPSCCCSEVP), you know, for simplicity. Gotta keep it simple and efficient. That's my motto!

[For more pleasure reading on this important topic, don't miss the 110-page Staff briefing or the equally riveting 29-page Slide Presentation for the April 15 Commission meeting on the same topic. Happy reading!]

CPSIA - Dingell Links

Barb from OH asked for links to pertinent past blogposts relating to John Dingell. Here are a few:

There were quite a few public replies to Mr. Dingell in March. I published my replies on March 9 and March 13.

Wednesday, April 21, 2010

CPSIA - Hearing Scheduled for the Waxman Amendment!

In an amazing development, Henry Waxman has noticed up a hearing for next Thursday to go over the issues bedeviling the CPSIA. Waxman staffers had routinely dismissed any possibility of a hearing for some time now, asserting that we had all "jawboned" enough and that they had heard it all already. That's right, already heard it all.

Hmmm, it appears someone must have disagreed with that assessment. There promises to be a bit more time for jawboning after all!

This morning's meeting between Mr. Waxman and Mr. Barton apparently included a third participant, Rep. John Dingell. Mr. Dingell (currently the longest-serving Congressman) is the ex-Chairman of the House Committee on Energy and Commerce. He is also the original sponsor of the Consumer Product Safety Act of 1972, the act which created the CPSC 38 years ago. Mr. Dingell cares a great deal about this agency and the CPSIA, and according to my sources, stood with Mr. Barton in asking for a hearing to air out implementation and other issues under the CPSIA. This is why the mark-up was cancelled today. The agreement of the three leaders to hold this hearing means that it is likely to actually happen . . . unlike several prior proposed or scheduled hearings on the CPSIA.

The hearing is said to be for the purpose of testimony by regulated companies and trade associations about the problems under the law. This is a fabulous opportunity to Let the Sun Shine In. By going on the official record, witnesses to this debacle will make it much harder for the zealots to deny the seriousness of the CPSIA's problems.

Some people fear that reworking the Waxman Amendment after this hearing may open the door for the return of the hated "sneaky" provisions in the original draft of the bill. While I suppose that could happen, it doesn't strike me as likely. Those provisions caused howls of protests from many quarters and were removed. Perhaps they were tossed into the original draft to create something to give away. In any event, there is good reason for those provisions to be gone. I think it's a risk worth bearing.

More importantly, it seems unlikely that much-needed structural repairs of our federal safety law would ever become part of the amendment in the absence of a hearing. After all, our "jawboning" didn't do the trick. I think there was strong sentiment among influential members of the House Committee on Energy and Commerce that a fix should be done "right" and that the Waxman Amendment failed to address the fundamental issues. Their fear was that the problems wouldn't go away in the wake of the Waxman Amendment, and therefore, the issue would end up back in committee in due course. Maybe they've had enough of this issue and want it fixed, once and for all.

Hey, a real fix sounds good to me. We can all look forward to a true airing of the issues in a week's time.

CPSIA - Fantasies of Small Business "Relief" in Waxman Amendment 2.0

I am tired of arguing about whether the new Waxman Amendment features "relief" for small businesses. I have pointed out that the definition of small business in the bill is both absurdly low and represents a super-sensitive trigger for enlarged responsibilities and risk. The notion behind rules protecting small business is that these companies have neither the skills, capital or human resources or the scale to bear the increased burdens and risk of the more sophisticated and demanding rules imposed on big business. These fragile enterprises are supposed to face larger legal responsibilities only when they have grown to be able to handle it (skills, resources, scale).

Can anyone rationally argue that a $1 million business is closer in skill sets, resources and business scale to Mattel and Hasbro than a lemonade stand? Frankly, that's an idiotic suggestion. Idiotic or not, it was all set to become law as part of the Waxman Amendment.

In any event, the Waxman gremlins that crafted the so-called Consumer Product Safety "Enhancement" (snort) Act of 2010 designed the testing "relief" for the little guys as follows:

". . . the Commission shall take into consideration any economic, administrative, or other limits on the ability of small batch manufacturers to comply with such requirements and may, by regulation, provide alternative testing requirements for covered products manufactured by small batch manufacturers in lieu of those required under subsection (a) or (b). Any such alternative requirements shall provide for reasonable testing methods to assure compliance with the relevant consumer product safety standards." [Emphasis added] The legislation goes on to instruct: "The Commission shall work cooperatively with small batch manufacturers . . . using its discretion . . . to impose the least burdensome testing requirements for small batch manufacturers consistent with goals of statute. . . ."

Ummm, what ARE those alternative "reasonable testing methods to assure compliance with the relevant consumer product safety standards"? A recent inquiry to the CPSC reveals that these special alternative testing methods are . . . are . . . are unknown. In fact, they don't exist. Straight from the horse's mouth - THE CPSC SAYS THERE AREN'T ANY ALTERNATIVE TESTING METHODS THAT WILL ASSURE COMPLIANCE.

I guess it's really a shame that the CPSC has nothing to offer the small batch folks. In lieu of these alternative methods, they'll have to just do it the way Mattel does. Maybe each crafter can open up a firewalled safety lab, after they make appropriate financial disclosures to the CPSC to qualify for this "relief". And MORE GOOD NEWS - if other testing methods are ever discovered, this legislation will make it possible for the CPSC to let the little guys use them! Hey, that's SOMETHING, isn't it?!

It's so good to know that Mr. Waxman has heard our pain and stepped right up to help us out.

Thanks for nothing, Henry.

CPSIA - Waxman Amendment Mark-Up CANCELLED for Today

In the wake of a private meeting between Henry Waxman and Joe Barton this morning, today's mark-up of the Waxman Amendment 2.0 (Consumer Product Safety "Enhancement" Act of 2010) has been CANCELLED. It had already been pushed back to 2 PM EST for a supposed "scheduling conflict". The content of the Waxman-Barton meeting is not known, however Mr. Waxman has been adamant that he would not proceed with this bill if there was ANY opposition. At a mark-up, the opposition has the right to introduce amendments. This is what Mr. Waxman intended to avoid. Perhaps that was not longer in his control, which may have led to the cancelled mark-up session.

What are the next steps? It's not certain at this point. There is an agreement in place between the Dems (Waxman) and Republicans (Barton) that ALL bills will pass through mark-up and subcommittee prior to committee consideration. IF this agreement is still being observed (no exceptions), then this bill only moves forward AFTER a mark-up. If there will be no mark-up session that features amendments, then this bill may be on life support in its present form. That suggestion is based on too many assumptions to set out here, but that may be the reality.

Another possibility is that this meeting featured a much stronger push for a hearing. Believe it or not, our pain and suffering has been noted. In addition, the evidence of insanity set in motion by the noxious CPSIA is mounting. Rumors swirl that a real legislative hearing may come next. Don't hold your breath . . . but it's possible. Real companies telling about their real issues.

The legislation, which I strongly oppose, has garnered the support of several key corporate players, like the ATV industry, the bike folks, the mass market retailers (no need to shed a tear for them anymore, I guess) and even little HTA. Some of them have practically gushed over these meager gains, perhaps haunted by the threat (implied or otherwise) that to spurn this attempt is to get nothing. No one wants to cut their nose off despite their face. This is how we compromise ourselves to hell, frankly. I remain opposed to a defective and unworkable legislative scheme that reduces our regulators to paper pushers, our financial statements to shreds and elevates our tort lawyers and safety testers to unknown new heights - all without making a MATERIAL positive impact on children's safety.

Please spare me the retort about falling recall rates. That really isn't the right metric. After all, we could all go out of business and recalls would fall to zero. A squeeze induced by sabre-rattling regulators wielding big penalties can cause a lot of "reform" at huge expense - but produce no results.

The right metric is injuries and deaths. Has the handiwork of Mr. Waxman and Ms. Tenenbaum led to statistically significant lower injuries and deaths? Well, my statistical analysis of lead-in paint recalls in a 25-month period from January 2007 - January 2009 showed 125 recalls (an all-time high) . . . and one injury, no deaths. That's what we are trying to improve upon. And if anything has actually changed since then, what did it cost? Do our markets function anymore? Under the CPSIA, there are already about 2500 pages of rules for companies like ours to master, implement and obey. Wait until I summarize the so-called "15 Month Rule" for you - the children's market is on a death march to oblivion.

Until the CPSIA is restored to sanity, we are facing a terrible end. Everything about safety in children's products has been fouled by the CPSIA and the pending amendment, the new "enhancement" cooked up by the Dems, is completely off the mark. We can only hope that members of Congress with the courage of their convictions and a dash of common sense will continue to push for rationality in our safety laws and regulations. That's our only hope.

Tuesday, April 20, 2010

CPSIA - Sample Letter to the House re Waxman Amendment

This is the letter I am sending:

"Vote NO on the pending Consumer Product Safety Enhancement Act of 2010 (CPSEA)! This legislation fails to address the critical issues confronting small businesses and children's product manufacturers under the CPSIA. Without genuine reform, implementation of the CPSIA will choke off commerce in this marketplace, especially for beleagured small businesses.

True relief will only come if the CPSIA is amended to restore to the CPSC Commission true authority for risk assessment. In addition, a reduced age limit under the law and more focused (less extensive) testing is necessary to restore balance to the market. A full hearing featuring testimony from affected regulated companies will set the record straight on the pain points of this two-year-old landmark legislation.

With out-of-control CPSC rulemaking now totalling almost 2500 pages and growing seemingly every day, the CPSIA implementation has now surpassed every company's ability to process and master. The law has become incomprehensible as new rules piled upon old rules are causing gridlock and widespread economic loss. Without decisive Congressional action to restore common sense to this unrelenting crisis, small businesses and big businesses alike will have to exit the children's market permanently.

This loss of supply will greatly harm consumers (including schools and teachers) and will cost thousands of jobs.

Save the children's product market - vote NO on the CPSEA and demand true reform to fix the CPSIA once and for all."

Time to Make Your Voices Heard!

I have perhaps the most important request of you readers since I started blogging on the CPSIA 18 months ago.

Tomorrow at 2pm Eastern time, the House Energy and Commerce Committee Committee will be marking up Henry Waxman’s “fix” to the CPSIA. In my opinion, this is no fix at all. I sent the e-mail below out earlier today that details why I think this “deal” should be rejected.

Now is the time for your voices to be heard. I encourage you to e-mail members of the Committee before 2pm tomorrow to voice your concerns about the proposed “fix” and demand that the Committee begin drafting a legislative solution that truly addresses the problems with the CPSIA.

You can find e-mail addresses for the Committee at here. Click the name of the Member of Congress, then click “contact” and that will take you to a form where you can submit an e-mail. You can choose one Committee member or all of them – it’s your choice but I ask you to send at least one e-mail by 2pm tomorrow. If you happen to live in the Congressional District of a Committee Member, even better.

If we don’t speak up now, we have only ourselves to blame.

My letter from earlier today:

Dear Friend,

We are at a critical juncture right now as the House Committee on Energy and Commerce is in the late stages of considering an amendment to the CPSIA. The proposed legislation has been analyzed in my blog over the past few weeks, but is now about to move to the subcommittee “mark-up” phase. Assuming it proceeds past mark-up, the bill will be put to a vote at the committee and then by the House, and submitted to the Senate for its consideration. This could happen rather quickly given its sponsorship by Henry Waxman. Notwithstanding his desires, the Republicans are not yet on board with this “bipartisan” bill and Senate cooperation is another unknown.

I wanted you to see my latest blogpost on this amendment and hope you will contact your representatives in Washington to express your concern. The new Waxman Amendment does nothing to fix the fundamental issues in the CPSIA and continues to stack the deck against small business in favor of big business and certain favored industries. If this legislation proceeds in its present form, Congress is likely to assert that they have “listened” to our complaints and addressed them, washing their hands of the matter. With almost 2500 pages of rules already promulgated by the CPSC to implement the CPSIA, and more spewing out on a daily basis, this law is not only incomprehensible to most businesses but completely unmanageable as well. Based on testimony by Chairman Inez Tenenbaum at last week’s Senate Appropriations Committee meeting, it seems clear that the CPSC is transitioning to an enforcement posture (from its implementation phase). Therefore, you can safely assume that you will held responsible in a matter of months by a CPSC that has little sympathy for your problems complying with their blizzard of rules. [If you doubt this, read my blogposts about penalties.]

The time to act is NOW. We must block this amendment.

Richard Woldenberg
Alliance for Children’s Product Safety

CPSIA - Illinois Finally Issues Its Lead Labeling Rules

At long last, Illinois has published its rulemaking under the Illinois Lead Poisoning Prevention Act. The relevant pages are 5568-5575. As you will see, true to their word, Illinois has clarified that the lead limitation pertaining to toys only affects paint.

It is still regrettable that Illinois felt the need to keep its standard for lead-in-paint below the federal standards, especially since there is no demonstrated difference in Illinois 40 ppm level and the federal standard of 90 ppm from a health standpoint. It is important to remember that background lead levels in the environment very often exceed the limit in the Illinois law, including famously in the Obama's vegetable garden at the White House.

Hopefully this law will cause minimal disruption or random loss of capital for those companies that elect to stay active in children's products in Illinois.

Monday, April 19, 2010

CPSIA - New Waxman Amendment Draft Issued Tonight, Mark-up Set for Wednesday Morning

The third draft of the Waxman Amendment 2.0 was released this evening. I have attached a clean copy of the legislation, as well as a redline for your convenience. The powers-that-be also released a draft of their "report language". The report language is interpretative language and is not included in the law mainly to keep future law clerks busy doing research. It should also give us something new to argue about.

This is the Committee Briefing Memo accompanying the draft legislation.

Consistent with past practice, this draft was issued with the usual coercion. A mark-up has been scheduled for Wednesday AM 10:00 a.m. in Room 2123 Rayburn House Office Building BUT the Dems will decide tomorrow if they will proceed with that process. All talk of a hearing to vet this legislation has been quashed by the Dems who are scrupulous in managing the record. [I will never get to testify, that's for sure.] There will be a meeting on Tuesday at 4 PM to discuss this draft, at which point the Dems will either pull the plug or move forward. Presumably, this depends on the enthusiastic response to this draft. The Dems say they want a bipartisan bill and further want to send it to the Senate with the news that the bill is "supported by industry". In other words, Mr. Waxman is not interested in negotiating with the Senate, just wants their rubber stamp. He's not big on "jawboning" if that means he has to listen to others and make concessions . . . .

You are right to consider this another patented Waxman "take it or leave it" offer.

In response to complaints that this bill ignores the many legitimate concerns of the small business community, Waxman staff has advised that they "can't help everyone". That means you, guys.

Changes in this Draft:

a. Functional Purpose "Exception" - Minimal changes, mainly reverting back to the "public health or safety" test formulation. References to "all foreseeable users" is gone now. The "town hall" provision allowing "interested parties" to intervene in every proceeding has been eliminated. The "Previously Denied Petitions" provision is unchanged and still makes no sense.

The report language clarifies the meaning of "practicable", noting that excessive or unreasonable costs should be considered not "practicable". Specifically, they note: "The Committee does not consider a mere increase in the cost of manufacture or production, in itself, to be excessive. The Committee does expect that the Commission will consider compliance to be impracticable where compliance would place the viability and continuation of a class of products or materials in jeopardy, such as youth All Terrain Vehicles or youth bicycles made with recycled steel." [Emphasis added]

In case you were wondering about the purpose of the functional purpose exception, it is a gift to the noted industries. It's not for you. Remember, this relief is only available to those who are capable of mounting an exception application. Not a small undertaking.

Remember that the applicant for a functional purpose exception must apply for relief for a "specific product or material". You must also PROVE that your costs are not "practicable". Can you see some wiggle room there? A true believer Commission might have very little incentive to interpret these terms permissively. [You can count on that one with the Dems in charge.] This will be a costly and technical process. Think of this in the context of your business - is this realistic? With our 1500 products, it's just inconceivable. Too bad for us. Let's also not forget the stringency of the three-prong test.

The report language specifies that a "measurable adverse effect" on public health or safety refers to changes in blood lead levels. The language is pretty specific and will require a toxicologist's report to justify any exemption. Here are the magic words: "Given that there is no current blood level at which the scientific community considers lead exposure to be 'safe,' the Committee understands that a very small adverse effect may theoretically occur at any level of exposure. The Committee intends, however, for the Commission to deny requests for exception under this section as having a 'measurable adverse effect' on health or safety only in the case of those adverse effects that the Commission determines to be empirically, as opposed to theoretically, measurable. At present, the Committee understands that there is scientific consensus to interpret the phrase 'measurable adverse effect' from lead exposure to mean a measurable increase in blood lead levels."

This is a form of legislative filter to make sure that the exception is only for the chosen industries or companies. Again, this isn't meant for small fry, just big business. That's equity these days, I guess.

Anyone remember how hotly the Dems defended the inclusion of ATVs and bikes in this law back in '08 and '09? It was intentional, they insisted, necessary to protect the public against deadly lead. There's no safe level of lead, blah blah blah. Guess they got over that one . . . after they received 170,000 emails from ATV'rs.

b. Thrift Store Relief: Virtually no change, other than minor clarifications.

Not unlike the workings of other parts of the CPSIA, this new provision will be good for large scale thrift organizations like Goodwill or Salvation Army who are presumably able to centrally evaluate complex laws and implement system-wide responses to changes in law. i wonder how the smaller independent Mom-and-Pops will react to this provision. In any event, the provision tacitly bans resale of children's jewelry, painted toys and vinyl children's products. Stores will have to keep straight which items are in and which are out. With many resale stores staffed with minimum wage workers, I question how effectively most owners can prevent violations without just avoiding the category (at least in part).

Resale of childcare articles, including cribs, seems unaffected. The real gotcha is the risk the stores will bear from recalls. For that reason, I think many stores will stay away from reselling this category of goods. Clothing may make a reappearance in resale shops, finally.

It is incredible that the Democrats let this industry flap in the wind for almost two years before acting to save them from CPSIA oblivion. Think of the economic devastation these insensitive legislators wrought on small businesses all America, not to mention the patrons of this important industry - through two cold winters. This is just inexcusable, a true demonstration of stubbornness or being completely out of touch. Those who suffered at the hands of the Dem inaction have no recourse, either. Shame, shame.

c. Relief for Small Batch Manufacturers: The sham of this "relief" is perpetuated in this new draft. The definitions of "covered products" and "Small Batch Manufacturer" were left structurally intact but the thresholds were tweaked upward meaninglessly to 7500 units or $50,000 sold per item per (calendar) year, with an overall cap of company sales of $1 million. "Covered Products" oddly continues to refer only to manufactured items but Small Batch Manufacturers are defined by sales of manufactured OR imported goods. Go figure.

As I pointed out earlier today, Mattel and Hasbro have quarterly revenues of $880 million and $672 million, respectively. The so-called relief here is for companies with annual revenue of under $1 million. If these little companies pop over that revenue hurdle, they will be held to the same standard as Mattel and Hasbro. Don't worry, the CPSC plans to coach the little guys! Now if only they could provide non-recourse financing . . . .

Even if you are salivating over this pathetic crumb of "relief", I encourage you to reread what goodies Mr. Waxman is giving you. Here's the meat of it: "Any such alternative requirements shall provide for reasonable testing methods to assure compliance with the relevant consumer product safety standards." The reasonable TESTING METHODS must ASSURE COMPLIANCE. You tell me what this English sentence means. I think it means the small fry will be testing. I know the rest of us will, too. Testing and testing and testing and testing. It's time to buy stock in Intertek, I think. Later on, the bill instructs the Commission to work "cooperatively" with the little guys to "impose the least burdensome testing requirements . . . consistent with goals of statute." And those goals are, what exactly? Comprehensive, prophylactic testing.

Oh, the bounty of this relief!

d. Phthalates and Inaccessible Components: No material changes.

e. Subpoena Power: No changes whatsoever. Somebody's going to be sorry someday that this procedural speed bump was removed. Unfettered power of government was always un-American . . . until we met these Democrats.


I wish I could recommend this bill. It has some good stuff in it. Unfortunately, it is utterly ineffective to arrest the damage being inflicted by the CPSIA. It is a gift to large industries but leaves the hammerlock on American small businesses catering children's markets. It sustains the fantastic notion that those of us in this business have somehow been poisoning kids for years or decades. That's a slanderous notion, something deeply offensive to me, but for the Dems to admit otherwise would mean a mea culpa. And there's no chance of that.

If the Dems manage to tempt enough corporate entities to sell out for this low price, it will be the biggest gift ever given by the corporate community to Mr. Waxman. He should host a champagne party for himself if he buys off the resistance. There will be no remaining organized opposition to the bulk of his CPSIA handiwork, and the focus will shift to surviving a manic CPSC bent on enforcing voluminous but ineffective safety rules and ladling out massive penalties for infractions without injuries. And once the action moves permanently to Bethesda, we'll see finally how much Cassandra got right.

I'm not looking forward to finding out. Vote NO on Waxman.

CPSIA - Good News Finally, Two Toy Companies are Doing Okay

Don't despair, everyone - there are at least two toy companies who have found a way to weather the CPSIA storm. Yes, both tiny Mattel and minuscule Hasbro were able to eek out a nice profit jump this quarter. Mattel reported earnings of $24.8 million in the first quarter, instead of a $51 million loss last year, and Hasbro had to make due with earnings of $58.9 million this quarter, up over winnings of $19.7 million in the same quarter last year.

The CPSIA is obviously crushing these companies. They are so brave!

Don't worry though - Waxman has a few morsels for us small fry, too. To ease the burden on us, his new amendment authorizes the CPSC to make special testing rules for us, provided (it's complicated) our revenue is under $500,000 per year. Oh goodie! Unfortunately, if we happen to be bigger than that, we face the exact same rules as Mattel (revenue of $880.1 million in the last QUARTER) and Hasbro (sales of $672.4 million in the last quarter).

That seems fair to me. Really fair . . . .

CPSIA - The Myth of the "Common Toy Box"

If you wonder why Waxman and his staff won't discuss a change to the age limits in the CPSIA, it's their fear of the "common toy box". They claim that unless a wide net is spread over children's products, small children could be "affected" by the toys of older children in the same home.

It is absolutely outrageous that an urban myth could send thousands of businesses down the river and cost literally billions in compliance and regulatory expenses. While common toy boxes are not themselves a myth, their ability to cause bodily injury is certainly fantastic.

I know it's downright prissy to discuss numbers in this era of junk science but, ahem, where's the evidence that so-called "common toy boxes" cause injuries? I am not aware of a SINGLE incident where this occurred. If you restrict your inquiry to lead injuries, the phobia du jour, I am even more certain that it has NEVER HAPPENED.

And what if it did happen? I submit that we cannot and SHOULD NOT conclude that anything is "unsafe" based on a single incident. Have you never heard of "accidents"? The concept of safety administration is inherently economic in nature, so the risk and cost of controlling that risk must be considered before making any choices. The risk of injury from "common toy boxes" needs to be evaluated for the probability of occurrence, and for whether the cost to remediate is greater than the benefit to be gained.

Is that really so outlandish? Am I some sort of corporate "tool" for daring to suggest this? If so, I challenge you to counter my argument that getting out of bed in the morning involves weighing risks. If you were to equally weight all known risks, without considering the probability of incurring the costs of those risks, you would never leave your bed - too risky. In fact, you would probably sleep below your bed in the basement, which provides better protection against meteorites. We intuit this every day without difficulty and bear these low risks because we believe we can control them.

Absurd example? Is the over-weighting of a single injury or death from lead any different?

Our company has been in business for almost 26 years. I have previously acknowledged that we have had one recall, for a grand total of 130 pieces (out of perhaps 1 billion pieces sold). These items were sold to 14 customers, and we called each one and got back more than 100% of what we shipped out. The world was made safe again for mankind. That is it for us. I submit that our safety record is not an accident. If that's true (and it is), what is America gaining by the excessive costs we will bear under this law, or worse, the dramatic liability risks we now face? All because Waxman's staff can't get past the "common toy box".

The sham of the justification of the "common toy box" is further exposed by presence in a child's life of so many other sources of the very same risk that this law seeks to eradicate.
  • Will it rid the world of lead? Certainly not, it's in our food, potable water and air. The media is awash in articles about lead in drinking fountains in schools. Lead pipes have been conveying our water for years. And good luck getting rid of brass in the home. And "deadly" rhinestones are in every girl's closet already.
  • Will it prevent lead-in-substrate from entering their world? No, products outside children's products remain unregulated, including products intended for the home but not specifically intended for kids (e.g., pens and housewares). Even dog toys will continue to be unregulated. Do you think children handle dog toys? Come on!
  • Will the law even eliminate lead-in-paint from a child's life? No - it's smeared all over your cars. Will your kid touch your car more often than he/she sucks on his bike's tire valve? One word - duh.
The justification of the "common toy box" is a negotiating ploy. It's an artifice to permit the utter change of our safety system from risk-based to a European-style set if precautionary and prescriptive rules. The idea sells and no one gives it much thought, which is all that matters. As last week's Senate Appropriations Committee hearing demonstrated, this new era permits members of Congress to justify their existence with long rants on their basic and poorly-researched fears (such as antimony on the nose of a Zhu Zhu Pet). Anything goes when you are afraid of a toy box.

Don't buy into the logic of the precautionary principle people. If you do, you will end in the "common rubbish bin" with the rest of the victim businesses.

CPSIA - "Anchoring" in the Waxman Amendment

The concept of "anchoring" is well-known to experienced negotiators. Make an outlandish initial proposal, and afterwards, all further negotiation is relative to that initial offer. The context of the negotiation is reset by its starting point notwithstanding the nature of the problem being negotiated. This clever technique is a great way to engineer a favorable outcome in a negotiation by "compromise", all while leaving your negotiating partner totally in the dark that they have been snookered.

Mr. Waxman wasn't born yesterday and is playing the disorganized corporate community like a maestro. The Waxman Amendment 2.0 is a classic case of anchoring. As his staff slowly compromises away most (but not all) of the legislation's obnoxious provisions, the corporate community seems to be forgetting what is really at stake and how low a price it would be accepting to go away.

Rumors are that this amendment could go to a vote as soon as this week. Forget the idea of a hearing - that was just another head fake by Waxman staffers trying to lull us all to sleep. We hold our fate in our hands as this amendment may essentially kill off resistance to the CPSIA.

The Waxman Amendment offers slight and attenuated relief on some relatively insignificant provisions of the underlying bill, namely elimination of the cost of testing internal components for phthalates and prospective application of the proposed August 2011 100 ppm lead-in-substrate limit (which must first clear OTHER hurdles before it becomes law). The total cost of the internal component phthalates testing is trivial in the context of testing costs imposed by the law. The impact of prospective application of the 100 ppm limit, with its long lead time, seems to be virtually nil in reality. What did Warren Buffett say about picking up nickels in front of a steamroller???

By selling out for the measly offerings of the Waxman Amendment, we would be setting quite a low price for the misery and years of pain that the CPSIA is certain inflict. Is that all it takes to buy us off?

Don't bite at Mr. Waxman's bait. Stand strong, demand real hearings, and if he won't act, wait him out. What price for your kingdom? The Waxman Amendment isn't that price, whatever it is.

Sunday, April 18, 2010

CPSIA - Why the Waxman Amendment MUST BE REJECTED

As we face the dilemma of what to do about the Waxman Amendment 2.0, I want to point out recent quotes by Sam Zell, a Chicago-based real estate entrepreneur. At a recent panel discussion of the Urban Land Institute, Mr. Zell bemoaned how our federal government governs these days: "[What's] going on now is frightening . . . Up until this administration, you knew the rules and had a very stable environment . . . If the current situation is indicative of the next half century, I think we're screwed."

Screwed. Mr. Zell's words ring in my ears.

In the wake of Friday's contentious meeting with the Waxmanis on Capitol Hill, the Dems announced that a new draft of the Waxman Amendment 2.0 would be released on Monday. In their usual bullying style, Waxman staff issued yet another ultimatum, advising this time that after release of that next draft, we all must "decide" whether or not to support the amendment. If we won't support it, they say they have better things to do.

The meeting produced no breakthroughs. The fundamental flaws in the law remain unaddressed, and meager goodies meant to partially salve the wounds of a limited number of companies remain the focus of the legislation. The goal of this legislation is to split the group protesting this law, peeling off the ATV'rs, the book industry, the crafters and mass market retailers. None of these groups is a clear winner, either. The rest of us, namely the Small Business community, will be left as roadkill.

A request by the ranking Republican for hearings was rejected on the grounds that there has been too much "jawboning" already. We are apparently all Chatty Cathies. Shame on us.

This reasoning behind the limited intent of the legislation was on display at this week's Senate Appropriations Committee hearing attended by Illinois' own Senator Dick Durbin and Maine's Senator Susan Collins with only one witness, CPSC Chairman Inez Tenenbaum. Don't watch the hearing on a full stomach . . . . Among other things confirmed by this hearing was that the functional purpose exemption embedded in Waxman Amendment is supposed to benefit a "narrow class" of products (in the words of Ms. Tenenbaum), namely bikes, ATVs and books. Lucky them.

Sadly, the hearing also confirmed the bizarre impression held by members of Congress that the small business issues are limited to crafters, for some reason a particular source of angst. Our company happens to also be a small business, although we no longer operate out of a bedroom or a garage - and we face major issues caused by this law. While I share concern for the tiniest of enterprises, the economic problems don't end there. In the words of the Chicago City Treasurer Stephanie Neely: "We are truly an economy of small businesses. And it's important that they thrive. They do a lot of employing. . . on a day-to-day basis, these are people who are employing one, ten, thirty people, and and it's important that we help them." Oh yeah, jobs.

The Waxman Amendment should be REJECTED until comprehensive legislation to fix the law is brought to the floor. If we let them pass this law, organized resistance to this law will be greatly diminished, and any opportunity to restore a sensible rule of law may be lost . . . permanently.

Consider the consequences if this amendment is passed:

- Our national safety law has changed from risk-based to standards-based. Mindlessly focused on lines in the sand, the new law's definition of safety has been completely rubbed out. Without this compass, the world of safety has become an unpredictable, unstable random walk. The Senate hearing included (incredibly) a rehashing of the "dangers" posed by Zhu Zhu Pets, the need for BPA recalls, the potential risk posed by triclosan and the CPSC's ability and interest in initiating recalls for these "dangers". Given that we no longer can figure out what's safe and what's not, every possible threat brings up discussion of recalls.

Try to run a business under conditions like that.

The risk of this reactive form of government CANNOT BE OVERSTATED. On April 13, Representative Edward Markey proudly sent out letters to 13 companies demanding that they stop using the antibacterial compound triclosan. The list of targets was almost certainly supplied to him by consumer groups. Mr. Markey, for all his power, is not a regulatory agency and does not have authority, resources or expertise to act as a regulator and his consumer group buddies are also not empowered to regulate our markets (thankfully). He is only a Congressman (up for reelection in November, btw). However, nowadays, that's apparently enough to regulate. I would not want to receive such a letter. I also do not cotton to this style of government.

- The complexity and volume of safety law being spewed out is truly breathtaking and overwhelming. I literally cannot keep up anymore. i can't read it all, watch it all, digest it all or even write comment letters. [Unfortunately, I still have job responsibilities, too.] On a recent Friday, the CPSC expelled almost 600 pages of new rules - and they were IMPORTANT. They included the new so-called 15 Month Rule - have you read it yet? This 100+ page rule has been written to control children's products as though we were merchants of death. We are not. The April 15 hearing to review this regulatory morsel was a mere five hours long, so lengthy that the CPSC has only posted one hour of the fun so far. Ironically, this hearing wasn't broadcast live, as it conflicted with broadcast of the first meeting of phthalates CHAP. Can't broadcast two mega-hearings at once.

Do you get it yet?

By my reckoning, the rules applicable to generic children's products is now nearing 2500 pages. If you take into account childcare items and other ancillary matters, the number of pages is probably well in excess of 3000 pages. We are clearly heading to a place where the rules total many thousands of pages. And WHY are there so many rules? It has nothing to do with actual safety. The injuries (one) and deaths (one) from lead in 2007/8, the highest outbreak of recalls in our history, were simply nominal for a country 300 million people.

In any event, you are going to have to know and bear the risk of ALL of those rules. And the new rules keep coming, very often overruling the rules you already mastered. For those you who are tempted to support Mr. Waxman's Amendment, please THINK about this.

- When the CPSC is done with its rulemaking, it is going into enforcement mode. That was a clear message of Ms. Tenenbaum's testimony in front of the Senate Appropriations Committee.
Her Compliance initiative will feature another 41 employees at a cost of $4,7 million to catch you violating rules. In addition, the resources of the existing agency will also shift to catching you. If you have read any of my writings about penalties, perhaps you can figure out what that means.

Bottom line, having divorced their mission from common sense or any notion of risk, the CPSC built an ornate and truly incomprehensible set of safety rules that even mega-corporations have admitted exceeds their capacity to manage. For small businesses, not merely the home crafters, compliance will be simply impossible. If those businesses are unable to understand the rules or afford to comply (while staying in business), they won't be able to follow them, and if the agency is bent on catching them, well, the results will be grim.

If you can't see this coming - my friend, you are blind.

The Testing and Certification stay ends on February 10, 2010. Don't expect this Commission to extend it again. The meter is running.

IF you support the Waxman Amendment because you really want the meager relief they are dangling, you will be conceding that you are prepared to endure what I have described. You are not ready for that, and you know it. Support for revising the bill comprehensibly will be greatly diminished at the same time, and even our most steadfast supporters in Congress will give up on us.

As painful as it may seem, you MUST decline to support this legislation. We must, as a community, insist on a true fix, one that addresses the real problems caused by the CPSIA. Nothing short of a total fix will suffice. The ornate rules needs to be simplified and refocused on real issues. The needless self-destructive imposition of blinding costs needs to be reversed. Excessive bureaucratic processes and exemptions only for big industries and big companies must end.

NOTHING that I am suggesting will or should amount to a retrenchment in safety for children or anyone else. It is no "free pass" for industry, whatever that might mean. It is simply means a return to sanity.

That may be too much to ask for this Congress or this Commission. I am not optimistic. Make me a believer this week - REJECT THE WAXMAN AMENDMENT.

Thursday, April 15, 2010

CPSIA - A Quick and Incomplete Analysis of New Draft Waxman Amendment 2.0

With only a few hours to look over the new draft of the Waxman Amendment 2.0 before tomorrow's meeting, I guess the idea is that we are supposed to drop what we are doing to complete an analysis fire drill. Power trip for the Waxman staffers? Possibly. Still, what choice do we have? I thought I would outline my preliminary comments to contribute to the debate.

It goes without saying that this is entirely my own work without the benefit of discussing it with others similarly situated and without the opportunity to compare notes. It is therefore likely that I have missed something important or made other mistakes. Sorry . . . . This post is also painfully long. Again, given that Mr. Waxman hardly cares about your problems or mine, I have little choice but to post this as one essay. Again, sorry . . . .

a. Modifications to Section 101(b)(2) Exemption Process:

  • The idiotic post-exemption warnings provision has been deleted.
  • The three-pronged exemption test remains in place, as does the ambiguous and troubling term "practicable". "Practicable" is a sneaky Waxman approach to providing an escape hatch for big industries with narrow product definitions like ATVs and books. You're not supposed to know this. Our laws aren't for the little people anymore.
  • The third prong of the exemption test has been clarified from no effect on "public health or safety" to no effect on "the user’s health or safety, taking into account normal and foreseeable use and abuse by all foreseeable users." This change seems like new belts and suspenders to make it easy to deny an exemption. The Dem zealots want to be sure no one gets an exemption but ATVs and books, wink-wink-nudge-nudge.
  • Poor applicants for exemptions are still obliged to wait hungrily by the door of the CPSC for the leavings of rich supplicants. Yes, small business owners who want exemptions like the big guys but can't afford to pay the big bucks can reuse the big guys' consultant's reports provided the evidence is considered non-proprietary. [Whatever that might be.] Nice . . . if someone else has already paid for it and submitted it in an exemption process, and if you have access to it (and have found it), you can use it. Noblesse oblige, I guess. Thank You, Kind Sir. I speak for all the little people . . . . Oddly, this concept reappears in a confusing provision called "Previously Denied Petitions" that only refers to previously denied petitions in its title (I don't get it).
  • In another "how closely are you watching me?" change, the grounds for decision provision now permits the Commission to consider "only" evidence presented by "interested parties", rather than the evidence presented by the party seeking such exceptions. So if you ever get as far as an exemption hearing, this provision turns it into a town meeting. How would you like it if anyone could enter and participate in your litigation without your consent . . . like your competitors or your business enemies? I have a good idea - why not just write into the law that Rachel Weintraub will be considered a party in interest to every action at the CPSC?
  • The Narrowest Scope provision has been modified to clarify that you must not only address each component but also each material. The paranoia you sense in this legislation is just the precautionary principle at work. The staffer-gnomes who have been crafting this legislation are not thinking about how our markets work or should work - they are simply obsessing over how we business people might find loopholes. Of course, it is in the nature of business people to try to avoid laws, we are all so evil. Oh yeah, I forgot . . . .
  • The Limitation of Exception provision now is framed in terms of "all foreseeable users" which I can only assume is meant to make the burden of proof higher for supplicants. After all, if you can foresee a so-and-so using the product (I won't supply the colorful example), then the Commission must limit the exception. No possibility of risk can be tolerated by the precautionary principle folks.

As the provision for exclusions has not changed much, here is my analysis of the original language for your reference.

b. Treatment of Resale Shops by the Waxman Amendment:

  • The provision defining a "used children's product" seems to now mean (a) an actual used children's product, and (b) new goods donated for a charitable purpose. This would seem to protect resale shops from liability for sale of items violating the lead provisions (but not the phthalates ban, notably) unless the seller or the person who supplied it to the seller knew it was in violation of the lead provisions. If that seems somewhat circular, it is. In this case, the law as drafted encourages resale shops to remain as ignorant as possible. This is Waxman's "Don't Ask, Don't Tell" policy. Nice.
  • There has been no clarification about the application of this provision to consignment shops. Do they "obtain" goods for resale if they never take title? Something fun to speculate about!
  • In a little-noticed provision, the definition of "seller" includes lenders or donators of used children's products. Thus, for lending libraries, they will be in the clear if they lend used goods, but will be on the hook if they lend new product. Does it become "used" after one loan, and if so, what does this mean? The legal department in your local children's library will figure this out. Sure. As to people who donate, the provision is circular again. As best I can figure out, you are not subject to the lead rules (only) if you are donating something used for charitable purposes, but if you give away something new, you are on the hook. At least, that's how I read it. So the bottom line is - don't give anything new to a charity, just give them junk. This is what Mr. Waxman wants. And that means this is what Congress wants.

While these changes may be an improvement, they are sadly improvements without much impact. This provision remains convoluted and hard to understand. The definition has numerous exceptions and also avoids giving the same shelter to resale shops for all the other picayune provisions of the law, like the phthalates ban. Frankly, without a clean exemption for this industry, resale stores are all going to avoid this class of goods. The complexity alone will kill this exemption except for the most sophisticated participants in an industry not known for its legal skills or resources. These stores won't hire lawyers to check their work. They can't afford it.

This is my original criticism of this provision, which is still applicable.

c. Prospective Application of 100 ppm Lead Limits - this provision was not changed in the new draft.

d. Low Volume Manufacturer "Exceptions":

  • Thank heavens, they changed the term of art for these small fry to Small Batch Manufacturers. This was done at the insistence of the HTA. What a victory! Someone please explain this to me.
  • The "In General" provision is basically unchanged, other than the fancy new name for the supposed beneficiaries of this largess. Notably, the last sentence was clarified to make sure no one could contend that Waxman inadvertently gave the Commission the power to grant "alternative testing methodologies" for ANYONE but the small batch guys. There's so much trust and love flowing here . . . .
  • The truly non-existent "relief" of this provision remains EXACTLY the same. Here it is, bask in its wonderfulness: "The Commission . . . may, by regulation, provide alternative testing requirements for covered products manufactured by small batch manufacturers in lieu of those required under subsection (a) or (b). Any such alternative requirements shall provide for reasonable testing methodologies to assure certification based on compliance with the relevant consumer product safety standards." [Emphasis added] Standing ovation? These lucky micro-businesses must meet alternative TESTING methodologies that ASSURE compliance with the standards. In other words, they gotta test. They even added a "savings clause" to forbid any relief here (such as it is) if any foreseeable user might be foreseeably at risk. Some relief.

Notably, the reach of this section has now been limited to "covered products". This new term, which incorporates a three-prong test (this is the second three-pronger of this amendment so far, but not the last). [See below.] Please NOTE that this new term means that the ONLY relief the CPSC can grant is to these small fry products. A product that exceeds the limits of a "covered product" will NOT enjoy any theoretical testing relief, even if made by a business qualifying for relief overall. Should you care? Well, in my view, if you have to endure the burden of full compliance with one product, you have to build the full infrastructure and bear the related liabilities. Thus, these micro-businesses supposedly being saved here are actually at substantial risk of suffocation if even ONE product sells well. Too bad for them.

The absurd and utterly inappropriate definition of a "low volume manufacturer" has been completely jumbled and incorporates the new concept of "covered products", too. Let me try to sort out this for you.

- As noted above, only "covered product" enjoy any potential relief under this section. The "covered products" test is a three-prong test: (i) manufactured not more than 5,000 "units" of the product in the prior fiscal year, (ii) had not more than $30,000 in sales of the product in the prior fiscal year, AND (iii) had no more than $500,000 in total sales in the prior fiscal year. [Do you feel vines growing over your brain yet?] Dollars are indexed for inflation. Notably, the definition ONLY applies to the manufacture of these items, NOT importation. Too bad, importers. GOTCHA!

The implication of this definition is that if you grow to over $500,000 in total sales, all exemptions applicable to any of your low volume items goes up in smoke instantly. That last dollar is gonna HURT. You also cannot get relief for any individual product if your sales of THAT item are greater than 5,000 "units" per year or $30,000 in sales. Here's another compliance tip: don't grow your business! Too hard? Don't worry, the other policies of this government should help you meet this goal . . . .

- The definition of a "small batch manufacturer" defines who should be treated with special charity by the CPSC under this marvelous section of the amendment. It's not going be a long list. Who wants to see another three-prong test?! Okay, break out your calculator so you can figure out if they are referring to you: (a) AT LEAST TWO-THIRDS of "the manufacturer's products" (I love that term) meets this two-part test: (i) the manufacturer manufactured or imported not more than 5,000 units of the product in the prior CALENDAR year, AND (ii) the manufacturer had not more than $30,000 in sales of the product in the prior CALENDAR year, AND (b) the manufacturer had not more than $500,000 in sales in the prior CALENDAR year.

This is getting fun! Okay, first we need to decide - is it a two-prong test with one prong having two sub-prongs, or is it a three-prong test? This is a rather metaphysical question . . . but I say it's our third three-prong test of this short amendment. [Imagine how many three-prong tests are in the health care bill.] I welcome your insights on this question.

There are some interesting quirks in the Small Batch Manufacturer definition. First, this provision applies to imported products, but the "covered products" definition does not. Gotcha! What does this mean? Who knows. The head spins . . . . Even better, the definition of "Small Batch Manufacturer" is based on calendar year calculations and the definition of "covered products" is based on fiscal year calculations. Love it. I learn so much from Mr. Congress. Apparently, Congress wants it to work this way because there must be some sort of dangerous loophole for people who have fiscal years which are not the calendar year. Mr. Waxman is onto your game, you desperadoes! There's no escape!

At least the Waxmanis kept it simple. Good job, guys, it's artful!

Btw, they added a little provision to make sure that the Commission investigates the structure of your business' "affiliations". Clearly, the Commission needs to make SURE they correctly tote up your revenues for this ornate determination. [Little known fact: the CPSC uses clacker balls for this work.] The reach of the Obamist/Waxman government into your private affairs, in ways completely and utterly unrelated to public interest or safety, apparently knows no bounds. Get your files ready, little businesses - the CPSC wants to take a peek. Perhaps check out your tax returns and . . . oops, it appears you took a few deductions that you weren't entitled to. We can just let our sister agency know, you don't have to do ANYTHING, we're just here to help.

Small business people, you should be flipping mad over this pathetic attempt to "help" you. My original criticism of this provision is still largely applicable.

e. Phthalates Ban Exception for Internal Components: This is largely intact from the prior draft although they did add a provision modifying the Commission's right to adopt the definition of an internal component from the lead accessibility standard. The Commission must now, "as appropriate", consider whether the component can be placed in the mouth. We are talking about internal components here.

I wish I had a laugh track for my blog . . . .

f. Removal of CPSA Section 6(b) Due Process Rights of Manufacturers: has been eliminated from the draft.

g. Voluntary Recall Standards to be Matched to Mandatory Recalls: has been eliminated from this draft.

h. Imminent Hazard Panic Attacks by the Commission: has been eliminated from this draft.

i. Subpoena Power for Underlings at the CPSC: This provision was trimmed back partially to apply only to physical and documentary evidence. This modest restructuring of this new right does not in any way address the issues I have pointed out in the past (here and here). This new subpoena power is not essential to the operation of the CPSC, regardless of their assertions, and represents a significant degradation of procedural protections that encourage business people to invest. When all trust is destroyed among the regulated community and its safety regulator, who will want to invest? Hello, Congress?


The Waxman Amendment has been improved mainly by deletions of several truly awful and duplicitous provisions. Many defective provisions in the original draft survived the revisions. What's left provides little substantive relief to the unwashed masses, but promises some sub rosa relief to the book industry and ATV'rs without giving the appearance of favoritism. There is little to cheer here for resale shops, small businesses (even micro-businesses, hello HTA, are you there?), education companies, apparel companies, you-name-it.

And many important issues are left completely unaddressed. I have previously provided my most discrete list of CRITICAL missing elements that must be part of any meaningful amendment of the CPSIA:

  • Risk Assessment by the CPSC and/or the Commission.
  • Changes in age limits for the lead standards and phthalates ban.
  • Narrowing of the scope of "Children's Product" to eliminate many categories of products unthinkingly pulled into this law by its overly broad language.
  • True reform to protect small businesses.
  • Tracking labels relief.

My full list of needed changes is found here.

More fun to follow tomorrow, I am sure.

CPSIA - Waxman Amendment New Draft

There is a new draft of the Waxman Amendment circulating. Here is a redlined version to help you see the Democrats' changes. [Ed. Note: This is a NEW hand-prepared redline.] This came out about three hours ago.

Notwithstanding that we have endured this torture since August 8, 2008, the Democrats in their infinite wisdom and kindness have set up a meeting tomorrow at 10:30 AM EST in Waxman's offices to take "final" comments from a bipartisan group including certain representatives of regulated companies. The comments will be solicited in the context of a warning that the revised bill already incorporates "the comments of industry" and represents the "best" the Democrats can do. In other words, an ultimatum.

So we are facing a key deadline less than 24 hours after receiving this critical language, notwithstanding that this "final" meeting was not pre-announced or that this issue has been festering for almost two years.

The meeting was also scheduled notwithstanding that some of us have actual jobs in actual companies and may not be sitting around waiting to do our federal government's work.

But to heck with people like me. Whiners! We should be happy with all the government our taxes and deficit can buy. Indeed. I can't make tomorrow's meeting. Guess I need to content myself with being excluded.

Another shining example of Open, Participatory Government . . . of the Waxman, by the Waxman, for the Waxman. [The Dems certainly are trying hard to make sure it won't perish from this Earth, too.]

Is that how it goes? I can't remember. . . .

I will try to provide some comments on the bill later tonight.

Monday, April 12, 2010

CPSIA - Broken Record . . . Does Anyone Care Anymore?

Misallocated safety resources - I have made the point again and again, that the misconceived CPSIA diverts limited resources away from real safety issues and lards them on bureaucratic exercises unlikely to produce safety results. [A pile of safety reports up to the sky does not constitute "results", btw.] This misallocation is not restricted to private companies - it also adversely impacts the CPSC. As they say, there are only so many hours in the day, even with an annual budget of $118 million.

The back-up in work at the CPSC is part of the untold story of the CPSIA. Certainly the zealots do not want to expose the damage done by their favorite law to this proud agency. The fantasy goes like this: if the CPSC isn't acting, there isn't anything to act on. Ergo if recalls go down, we must be safer - because the all-knowing CPSC is everywhere, instantly processing data, and recalling everything that is "bad". If you believe that fairy tale, I have a bridge to sell you, or perhaps some lovely swamp land. This fantasy was on display in the recent hearing on the public database in which absurd promises were made about timely agency review of database postings. The agency's inability to keep up with the data flow, probably from day one, will turn the database into a national commercial slander bulletin board. Among other things, this is because there aren't and will never be enough hands on deck to manage the work flow with good quality control and concern for truth.

Some recent evidence of misallocated resources was provided by the General Accounting Office in their April 2010 report to Congressional Committees entitled "ALL-TERRAIN VEHICLES: How They Are Used, Crashes, and Sales of Adult-Sized Vehicles for Children’s Use". Remember, it is almost inevitable that misallocated safety resources will lead to disaster, just as driving while taking your eyes off the road invites tragedy. Tragedy . . . you heard it here first.

The GAO report notes:

"[ATV industry] officials said they are taking actions to prevent the sale of adult-sized ATVs for use by children and Commission staff said they have taken steps to ensure compliance . . . . Since 1998, Commission staff have conducted undercover inspections of ATV dealers, by posing as buyers, to check compliance with the age recommendations. Nevertheless, compliance rates of the ATV dealers that Commission staff checked decreased from 85 percent in 1999 to 63 percent in 2007 . . . . A Commission compliance official said no undercover inspections of dealers had been conducted since early 2008 because Commission staff were focused on preparing to implement the Consumer Product Safety Improvement Act, but that inspections will be resumed in the future. . . .

Because Commission staff had not conducted any undercover inspections of dealers since 2008 and because the number of new entrants in the marketplace that had not been checked (as of February 2010, 37 companies had ATV action plans authorizing them to sell ATVs in the United States, compared with 8 companies in 2008), we conducted undercover operations of selected dealers to check whether dealers were willing to sell adult-sized ATVs for use by children under the age of 16. . . . The dealers who were willing to sell adult-sized ATVs for use by children included retailers that sold ATVs made by the traditional manufacturers and new market entrants as well as those that sold a single brand and a variety of brands. In some cases, sales staff subtly and in other cases blatantly admitted that they should not be selling adult-sized ATVs for use by a 13-year-old, but would do so anyway. In addition, one dealer we visited was selling ATVs manufactured by a company without an ATV action plan." [Emphasis added]

I quote from this report not to indict ATV'rs. Some bad apples will be in every barrel, so almost any market sweep will turn up something. In this case, however, the GAO confirms that the CPSC has been in a two year nap induced by the CPSIA. And the nap isn't over, either.

This problem explains why, in a recent conversation, a CPSC staffer referred to the agency as the Children's Product Safety Commission (that's not its name!). Something has been diverted or polluted in its mission by the CPSIA.

I feel we are sliding down this slippery slope to the doom of the critical market for children's products. After two years of whining, I must sound like a broken record. That said, the CPSIA implementing rules aren't survivable and with full implementation now just months away, there's almost no time left to do anything about it. I have not yet explained in this space the so-called 15 Month Rule to be discussed this week in Thursday morning's Commission meeting. When the time comes, you will get a strong sense of what a railroad job this entire process has been. The priority has been irretrievably shifted to paper pushing. The strictures imposed by the testing zealots will snuff out many businesses - or send us all underground.

Consumers will suffer and so will your business. We will see more collapses and will see markets go under-served. You were warned.

Sunday, April 11, 2010

CPSIA - What does "Any" Mean, Anyhow? Waxman Staff Weighs in.

The Waxman Amendment 2.0 is still percolating but with Congress on its Spring break, progress has stopped briefly. That does not mean, however, that discussions have ended or that the Amendment is "dead". It will likely spring back to life shortly as Congress wakes up again next week.

Those of you who savor fractiousness and gridlock in your government will no doubt be pleased to know that the usual bickering and stubborn disputes over the awful CPSIA continues unabated.

In a meeting last week about the Waxman Amendment, senior Waxman staff again rejected the concept of allowing the CPSC to assess risk. [Given the extraordinary conservatism of this CPSC Commission, I can't imagine what Waxman is worried about . . . .]

The position of the Waxmanis has significant implications for the controversy over the word "any" in the lead exemption provision. Some commentators have argued that "any" does not mean none and that if "any" is accorded that meaning, then the exemption process would never yield any exemptions. [CPSC staff have reached similar conclusions, hence their universal rejection of exemption requests. This also explains their puzzling approval of nuclear waste for inclusion in children's products.] Resolution of this issue might not only crack the door for exemptions but might also help narrow the scope of CPSC responsibilities by eliminating obviously safe products from the lead rules. This would be good, to restate the obvious.

According to Waxman staff, the CPSC got it exactly right - the word "any" is meant to prevent exemptions if ANY lead could pass from the subject item into the human body. No matter that this means that there will never be any exemptions possible under the exemption process (!). No matter that there are many other environmental sources of lead which pose a far greater hazard in a child's life than almost all children's products. No matter that many useful products might be banned (see my latest casualty post). In the Waxmanis' estimable view, Congress "wanted" ZERO lead in the communal toy box. Otherwise, there might be a "perverse" effect on safety. Or so they say.

This is exceptionally unlikely to be true. Interviews with MANY members of Congress over the past two years confirms that "Congress" believed that the CPSIA included a real and workable mechanism for sensible exemptions. Not that anyone thought about the details of this bill for more than a few micro-seconds, but if they did, they thought there was a viable exemption process. Actually, it takes virtually no effort these days to find members of Congress who assert that the CPSIA was a toy bill. Gotta keep 'em guessing, I suppose.

It must be nice to be able to project your own views onto an entire institution. This is a good way to defect blame. What did Congress "want"? No one can know what that amorphous institution wanted or wants. At this point, the Waxmanis are self-appointed interpreters of the Congressional psyche. In reality, it only matters what "House baron Henry Waxman" wants. In this case, an impotent exemption process is exactly what he wants. The sham also provides him with cover against more skeptical members of Congress. That you can see through it hardly matters - do you actually expect members of Congress to read the law and figure out how it works? Come on!

That's participatory government for you. Unfortunately, you only think you are participating. Mr. Waxman will let you know when he needs your input. . . .

Saturday, April 10, 2010

CPSIA - CPSIA Casualty of the Week for April 9

The Alliance for Children's Product Safety's "CPSIA Casualty of the Week" highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

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 April 9, 2010


The approximately 1,500 businesses that comprise the National School Supply and Equipment Association (NSSEA) are dedicated to providing educational supplies, equipment and instructional materials to schools, parents, and teachers. This small industry serves a vitally important market – American schools – providing specialized products that form the backbone of the American educational system. Without the support of this small business-dominated industry, the needs of many American children would be left unmet, including children with disabilities and special learning needs.

The Consumer Product Safety Improvement Act (CPSIA) has had a negative effect on nearly every NSSEA member company, says a recent NSSEA survey of manufacturers/suppliers and dealers.

According to the findings, 64% of surveyed NSSEA suppliers, and almost half of the dealers (46%), have been negatively affected by CPSIA regulations. About 47% of dealers surveyed have removed items from inventory, and 40% of manufacturers have either removed items or discontinued production. Almost 80% have incurred additional testing costs. Unfortunately, all this expense and disruption has served no purpose - the CPSIA has imposed economic turmoil on an industry that has a great safety record. Recalled educational products have been responsible for a total of three reported injuries in the last ten years, one from an overheating battery compartment and two relating to a defective hinge on a changing table.

A NSSEA manufacturer wrote, "We have been forced to discontinue safe products because the testing costs have not justified keeping them in the line. This has had a very negative impact on our bottom line by destroying very good and safe product. Teachers who have been using these products for decades will not have access to them anymore. Going forward, we will not be able to develop niche products that are specific to education because the testing costs will not justify anything with low sales."

"From delayed orders to confusion regarding the requirements, members have been left with eroding margin, increased labeling and testing expenses, and a decrease of education products available to the marketplace," wrote NSSEA Vice President Adrienne Dayton in a recent association newsletter.