Sadly, after four years of CPSIA advocacy, it’s finally time to say farewell. The timing of my goodbye comes as we approach the third anniversary of President Bush signing the CPSIA into law (August 14, 2008). I am paroling myself for time served. This is my final blogpost.
This exhausting journey came to a crashing end because I concluded that I am not able to engineer further relief from this terrible law. Congress, having finally passed a CPSIA amendment (HR 2715) after three frustrating years of our begging for help, is finished with this issue for good. They put an end to the lingering issues by cutting loose all the politically sensitive groups affected by the CPSIA (ATVs, bikes, books, resale goods). Those of us with working memories will recall the many words spoken over the last three years about the lead "dangers" presented by these goods to justify their inclusion in the law in the first place. I guess Congress decided lead risks wear off for certain kinds of products. Interesting . . . .
The remaining affected industries will not receive additional relief from Congress because any significant political pressure which might drive change has been neutralized. This was a Democratic strategy to make this issue go away (divide-and-conquer), and it worked. I believe the CPSIA will not be amended in the next two years in any way and may not be amended in a meaningful way again for many, many years. Read HR 2715 – that’s all you are likely to get from Congress.
I have no realistic expectation of further relief from the CPSC, either. The three Democratic votes on the Commission can’t be beaten, and as I have shown in this space, they always vote as a pack with no meaningful exceptions. One "triple vote" will always beat two votes. These Dems have selective hearing or memory or just don’t give a darn about data or testimony that doesn’t validate their conclusions. The outcome of a CPSC hearing, Commission meeting or request for public comment on a CPSIA issue is about as much in doubt as the average Moscow show trial. [It just takes a little longer. . . .]
The comparison to Stalin's show trials is apt. In the 1930's, the Soviets cynically used legal proceedings to lend the appearance of legitimacy to its "findings of fact" (generally based on coerced confessions) and its rendering of "justice". Of course, the trials were just a sham, nothing more than an administrative procedure for implementing a political agenda. And at the CPSC? I cannot point to a single CPSIA issue on which the Democrats showed an open mind or were capable of being influenced by data or reason. Draw your own conclusions, notwithstanding Bob Adler's self-proclaimed "agony" in always casting his votes against businesses. After naively testifying at, contributing to or analyzing and reporting on so many CPSC proceedings that I have lost count, I have totally given up on these people and consider influencing them a lost cause. It’s not worth my time to continue to attempt to work with them.
So with no hope of further legislative relief for the foreseeable future and with closed minds and closed doors at the CPSC, this is not a worthwhile venture for me anymore. I cannot justify it and plan to turn my attention to other opportunities with greater promise of my adding value. I am done with the CPSIA and the CPSC.
Despite the almost overwhelming urge to “sum it all up”, I don’t intend to offer any concluding wisdom. Already prone to repeat myself endlessly in this space, I have clearly stated my position on the issues and my opinions haven’t changed. You know how I feel with specificity. Given that I believe it’s all over but the tears, I can’t see what good would come from parting words on the “war”.
Kind readers, you have become my friends and family. I really value your readership and your support. This blog reflects your pain and your passion, too. We have fed off each other. I want to thank you. You have sustained me.
For those of you who read this blog just to see what I would say about you and who will not miss my little missives (or me), I can only say that I have been completely honest and candid in this space, working with facts and real data, consistently documenting my source materials and my analysis. I respect that you may disagree with my conclusions or opinions, but I don’t respect that you refused to take me on. For all your whining and grousing about me, generally behind closed doors, none of you ever stood up in this space to tell me where or how I was wrong. You apparently lacked the courage to engage in a true, open debate where the outcome was not predetermined in your favor. Perhaps you preferred to ignore me, my arguments and my data, hoping I would go away. In the end, you got your wish. Lucky us.
So the battle ends for me, here. Perhaps someday we will see the return of common sense and respect for corporate members of our society in our safety laws. Until then, good luck to you and Godspeed.
Rick
Friday, August 12, 2011
CPSIA - Obama Will Sign HR 2715 CPSIA Amendment Into Law Today
President Obama is expected to sign HR 2715, the CPSIA amendment that picks winners and losers and represents the end of legislative action to repair the misconceived CPSIA. Obama has to clear his desk before his vacation next week. This will be one of his last "to do's" before R&R begins.
Now what?
Here is my prediction:
a. The push will be on for the end of CPSIA rulemaking. Not only are the Dems on the CPSC Commission tired of this (times ten) but Congress wants this off their plate, too. Our petty concerns have been "addressed" and besides, what could go wrong anyway? Um, well, consider this "colloquy" between three powerful Democrats in the Senate. Before you read on, please note:
- HR 2715 is a bipartisan bill, sponsored by both parties (obviously). This dialogue is among three like-minded Democrats. Why isn't it a colloquy between both parties? Is this even relevant? As you will see, that depends on where you sit.
- The three Senators involved have always agreed with each other on this law and have been remarkably resistant to any data, reasoning or argument that opposes their preconceived notions about the CPSIA or its groundings. Should their time-warp views be accorded any relevance?
- Inez Tenenbaum has already cited this "colloquy" as her Congressional "instructions". Dem to Dem. Storm clouds gathering?
I have no idea if this dialogue actually took place or is just a figment published to justify the Dem agenda. Not even an interesting question to resolve, frankly.
Enjoy:
"Mr. ROCKEFELLER. Mr. President, I rise to engage in a colloquy with my colleagues, Senators Durbin and Pryor, over the passage of H.R. 2715, a bill that passed on the House suspension calendar by a vote of 421-2 and the Senate by unanimous consent. Due to the fact that this bill bypassed regular order and failed to receive consideration in the Commerce Committee, I believe it is important to explain our intent in passing this bill."
Mr. DURBIN. I am frustrated that the Consumer Product Safety Commission has taken too long to promulgate rules required by the Consumer Product Safety Improvement Act, CPSIA, including the rules on third-party testing obligations and the component part testing rule. I did not oppose H.R. 2715, because it does not delay or impede the Commission's ability to implement those rules--although it may place some increased costs on the Commission due to actions required as a result of new CPSC mandates and authorities--and I urge the Commission to complete its work expeditiously.
Mr. ROCKEFELLER. I share the Senator's concerns about the CPSC's delay in promulgating its regulations in accordance with the mandates of CPSIA. While I sympathize with the CPSC over its resource constraints, the Commission must accelerate its efforts and complete the important regulations required under CPSIA. The provisions in section 2 of H.R. 2715 were not intended to delay or stop the Commission's current rulemaking under section 102 (d)(2) of the Consumer Product Safety Improvement Act to implement the critical provision related to the third-party testing of children's products. I fully expect the Commission to go forward with these important rulemakings with no disruption from the passage of this bill.
Given the limited resources of the Commission and recognizing the length of time it has taken to implement the provisions of the Consumer Product Safety Improvement Act, it is intended that most of H.R. 2715's new mandates on the CPSC are not rulemakings. Some of the new authority, such as the functional purpose exemption and the authority to restrict the scope of the used products exemption, are subject to a notice and hearing requirement, but not to a rulemaking. Others, such as the creation of a new public registry for small batch manufacturers, can be implemented without notice and comment or even a hearing. As such, the Commission should act to effectuate the new mandates of this bill in a most expeditious manner.
Mr. PRYOR. I also share the Senator's view that nothing in H.R. 2715 is intended to delay the Commission's rulemaking with respect to third party testing and believe that Commission should conclude its testing rulemakings in the next 2 months. I supported H.R. 2715 because it made minor modifications to an important consumer product safety law and supported implementation of important aspect of the Consumer Product Safety Improvement Act such as the consumer product database. This bill will require the CPSC to extend the deadline for posting reports on defective products by 5 days if a business asserts that the information in the report is not accurate. However, this change does not alter the fact that the Commission still must post the report in the database after those 5 days even if it is still reviewing the merits of the complaint."
So now you know what is going to happen. Tenenbaum is practically broadcasting it. She has received her "instructions". They've heard enough.
b. With Thomas Moore's run at the CPSC ending once and for all in October, and with consumer groups already publicly calling for his replacement ASAP, the Dems will be very anxious to complete as much work as possible before he goes. His replacement's confirmation through the Senate is not a sure thing at all. Even a recess appointment is not as much an option as in the past (the Senate is running a "pro forma" session right now to head off this step by the President). If Moore is not replaced on a timely basis, the Commission will shrink to just four people which means that Tenenbaum and Adler might actually have to listen to their Republican counterparts and seek COMPROMISE to get things done. Don't hold your breath - they'd prefer to get it done their way. Expect the worst from the next three months.
c. 2012 will be the year of enforcement. In 2012, you will get to find out how well I can predict the future. 2012 won't be fun for some people, maybe lots of people. Nothing good will be achieved from a safety standpoint but the CPSC will get to strut its stuff. [Does it strike you as ironic that Ms. Tenenbaum brags about falling recall rates under her reign? Is or isn't this the exact reason that Congress got so mad at Nancy Nord? I guess when Dems are in charge, falling recall rates are a good sign. When Republicans are in charge, it's so so bad,]
Get ready for some tough times.
Now what?
Here is my prediction:
a. The push will be on for the end of CPSIA rulemaking. Not only are the Dems on the CPSC Commission tired of this (times ten) but Congress wants this off their plate, too. Our petty concerns have been "addressed" and besides, what could go wrong anyway? Um, well, consider this "colloquy" between three powerful Democrats in the Senate. Before you read on, please note:
- HR 2715 is a bipartisan bill, sponsored by both parties (obviously). This dialogue is among three like-minded Democrats. Why isn't it a colloquy between both parties? Is this even relevant? As you will see, that depends on where you sit.
- The three Senators involved have always agreed with each other on this law and have been remarkably resistant to any data, reasoning or argument that opposes their preconceived notions about the CPSIA or its groundings. Should their time-warp views be accorded any relevance?
- Inez Tenenbaum has already cited this "colloquy" as her Congressional "instructions". Dem to Dem. Storm clouds gathering?
I have no idea if this dialogue actually took place or is just a figment published to justify the Dem agenda. Not even an interesting question to resolve, frankly.
Enjoy:
"Mr. ROCKEFELLER. Mr. President, I rise to engage in a colloquy with my colleagues, Senators Durbin and Pryor, over the passage of H.R. 2715, a bill that passed on the House suspension calendar by a vote of 421-2 and the Senate by unanimous consent. Due to the fact that this bill bypassed regular order and failed to receive consideration in the Commerce Committee, I believe it is important to explain our intent in passing this bill."
Mr. DURBIN. I am frustrated that the Consumer Product Safety Commission has taken too long to promulgate rules required by the Consumer Product Safety Improvement Act, CPSIA, including the rules on third-party testing obligations and the component part testing rule. I did not oppose H.R. 2715, because it does not delay or impede the Commission's ability to implement those rules--although it may place some increased costs on the Commission due to actions required as a result of new CPSC mandates and authorities--and I urge the Commission to complete its work expeditiously.
Mr. ROCKEFELLER. I share the Senator's concerns about the CPSC's delay in promulgating its regulations in accordance with the mandates of CPSIA. While I sympathize with the CPSC over its resource constraints, the Commission must accelerate its efforts and complete the important regulations required under CPSIA. The provisions in section 2 of H.R. 2715 were not intended to delay or stop the Commission's current rulemaking under section 102 (d)(2) of the Consumer Product Safety Improvement Act to implement the critical provision related to the third-party testing of children's products. I fully expect the Commission to go forward with these important rulemakings with no disruption from the passage of this bill.
Given the limited resources of the Commission and recognizing the length of time it has taken to implement the provisions of the Consumer Product Safety Improvement Act, it is intended that most of H.R. 2715's new mandates on the CPSC are not rulemakings. Some of the new authority, such as the functional purpose exemption and the authority to restrict the scope of the used products exemption, are subject to a notice and hearing requirement, but not to a rulemaking. Others, such as the creation of a new public registry for small batch manufacturers, can be implemented without notice and comment or even a hearing. As such, the Commission should act to effectuate the new mandates of this bill in a most expeditious manner.
Mr. PRYOR. I also share the Senator's view that nothing in H.R. 2715 is intended to delay the Commission's rulemaking with respect to third party testing and believe that Commission should conclude its testing rulemakings in the next 2 months. I supported H.R. 2715 because it made minor modifications to an important consumer product safety law and supported implementation of important aspect of the Consumer Product Safety Improvement Act such as the consumer product database. This bill will require the CPSC to extend the deadline for posting reports on defective products by 5 days if a business asserts that the information in the report is not accurate. However, this change does not alter the fact that the Commission still must post the report in the database after those 5 days even if it is still reviewing the merits of the complaint."
So now you know what is going to happen. Tenenbaum is practically broadcasting it. She has received her "instructions". They've heard enough.
b. With Thomas Moore's run at the CPSC ending once and for all in October, and with consumer groups already publicly calling for his replacement ASAP, the Dems will be very anxious to complete as much work as possible before he goes. His replacement's confirmation through the Senate is not a sure thing at all. Even a recess appointment is not as much an option as in the past (the Senate is running a "pro forma" session right now to head off this step by the President). If Moore is not replaced on a timely basis, the Commission will shrink to just four people which means that Tenenbaum and Adler might actually have to listen to their Republican counterparts and seek COMPROMISE to get things done. Don't hold your breath - they'd prefer to get it done their way. Expect the worst from the next three months.
c. 2012 will be the year of enforcement. In 2012, you will get to find out how well I can predict the future. 2012 won't be fun for some people, maybe lots of people. Nothing good will be achieved from a safety standpoint but the CPSC will get to strut its stuff. [Does it strike you as ironic that Ms. Tenenbaum brags about falling recall rates under her reign? Is or isn't this the exact reason that Congress got so mad at Nancy Nord? I guess when Dems are in charge, falling recall rates are a good sign. When Republicans are in charge, it's so so bad,]
Get ready for some tough times.
Thursday, August 4, 2011
CPSIA - Hey, Republicans, THANKS SO MUCH for that Pledge for America
Did anyone notice how the CPSIA Amendment (HR 2715) went to the House floor in the middle of the night on a Sunday after closed door horse trading out of the public eye, and was voted on early the next day designated as a "noncontroversial bill" (Monday, August 1). The amendment didn't go through a mark-up hearing and was only published a few hours before the vote. The law includes some surprises, too, as one might expect on a bill emerging from a smoke-filled room. Naturally, the Senate considered it and put it up for a voice vote in even less time.
How many Members of Congress bothered to read the bill before voting on it? How many Members of the responsible House and Senate committees read it before voting on it? Your guess is as good as mine.
You may recall that the Republican Party published "A Pledge to America" in 2010 ahead of the Medterm elections, with the nifty subtitle "A new governing agenda built on the Priorities of Our Nation, the Principles We Stand for & America's Founding Values". Impressive. The Pledge includes a section starting on page 33 called "A Plan to Reform Congress and Restore Trust". Restore trust - I am all for that!!
On page 35 of this document, the Republicans make the following "promise":
"Read the Bill We will ensure that bills are debated and discussed in the public square by publishing the text online for at least three days before coming up for a vote in the House of Representatives. No more hiding legislative language from the minority party, opponents, and the public. Legislation should be understood by all interested parties before it is voted on." [Emphasis added]
Correction: They'll do all that stuff unless they don't. And in the case of the CPSIA Amendment, well, come on, don't be such a rule follower . . . .
How many Members of Congress bothered to read the bill before voting on it? How many Members of the responsible House and Senate committees read it before voting on it? Your guess is as good as mine.
You may recall that the Republican Party published "A Pledge to America" in 2010 ahead of the Medterm elections, with the nifty subtitle "A new governing agenda built on the Priorities of Our Nation, the Principles We Stand for & America's Founding Values". Impressive. The Pledge includes a section starting on page 33 called "A Plan to Reform Congress and Restore Trust". Restore trust - I am all for that!!
On page 35 of this document, the Republicans make the following "promise":
"Read the Bill We will ensure that bills are debated and discussed in the public square by publishing the text online for at least three days before coming up for a vote in the House of Representatives. No more hiding legislative language from the minority party, opponents, and the public. Legislation should be understood by all interested parties before it is voted on." [Emphasis added]
Correction: They'll do all that stuff unless they don't. And in the case of the CPSIA Amendment, well, come on, don't be such a rule follower . . . .
Tuesday, August 2, 2011
CPSIA - Final CPSIA Amendment (HR 2715) Moves to President's Desk for Signature
Here is the final form of the CPSIA Amendment (HR 2715) that should become law sometime this week.
I want to quote from another blog (thank you, Steven Hansen) on this amendment's path to the President's desk:
"This bill and the path it has taken is an example of why people are very frustrated with Congress and getting legislation passed in general. These 'legislative' fixes have been getting passed around in backrooms for months and when they finally did come to a 'vote' the 'fix' was already in and they sailed thru in minutes or seconds on votes that were purely formalities. There was really no warning that this would be passed when it did or in this fashion. If you did not get what you wanted in here well that's too bad because you are not likely to see any further relief for some time. Apparently Congress is going to be in recess until after Labor day as they had to work so hard to pass the debt ceiling bill."
Mr. Hansen is completely correct. We know that even Republican members found out about this amendment when it was docketed for a House floor vote. Mark-up, schmark-up. The Senate also made the decision (if that is even possible, since the Senate is an inanimate organization without a mind) to shift to HR 2715 without debate, and passed it with a voice vote. These decisions were literally made in minutes behind closed doors and Members of Congress had no time to read (and perhaps no interest to read) the "noncontroversial" bill. After three years of intense bickering, a small group of individuals made the decision for all of us that this bill is good enough to "fix" the CPSIA. There won't be another "fix" to this law again, perhaps EVER. You know the bill sucks if Henry Waxman is clucking about it. In fact, most of the text of the bill was his handiwork almost entirely (functional purpose, testing "relief" (Eshoo), database (Markey), small batch "relief").
And what did we get for all our good government dollars? I have previously given my quick assessment of this law and have no interest in repeating the exercise at this point. I would like, however, to highlight low lights of the bill:
Winners: ATVs, Bicycles, Resale Goods, Books, Libraries
Losers: See above list, and if you're not on it . . . you.
Technical Fixes of Past Congressional Screw-ups:
Small batch manufacturers, the most micro of businesses (under $1 million in total turnover) must register prior to utilizing any of the nifty cost-saving testing innovations now being cooked up by the very open-minded CPSC. This is the CPSC's version of the sex offender registry. Is there ANY basis for singling these people out for special attention? Why doesn't Mattel have to register, too? Oh, come on, you know we must have different rules for Mattel! They need their own firewalled labs and so on for their efficiency. [Here's a good example of their efficiency.] It's only fair, the real safety worry is the crafters . . . .
The only good news is that none of the small batch manufacturers will ever have to suffer this indignity. The clever gnomes of Congress have figured out how to appear to give something to those heart-rending little nobodies without doing squat. How do they do that? The only "relief" that the CPSC may implement must meet this standard: "Any such alternative requirements shall provide for reasonable methods to assure compliance with any applicable consumer product safety rule, ban, standard, or regulation." [Emphasis added] This CPSIA term has already been interpreted by this Commission multiple times. The word "assure" ensures that no relief will ever be given since nothing can "assure" compliance other than prophylaxis. Notably, the Commission has purportedly looked for this "out" for three years and came up with nada. And Bob Adler has been "agonizing" over it for that entire time. [I feel AWFUL for him, he suffers for each of us.] How will another year or two of agonizing produce a different result?
Suckers are welcome to wait longingly for this promised "relief" but they will be disappointed again and again. Protest is futile.
Disgusting, Repellent Hypocrisy:
Consider the amazing gimme provided to bicycle manufacturers:
"(B) METAL COMPONENT PARTS OF BICYCLES.—The third party testing requirements established under subsection (a) shall not apply to metal component parts of bicycles with respect to compliance with the lead content limits in place pursuant to section 101(b)(6) of the [CPSIA]."
They don't have to test their metal components at all. AT ALL, EVER. Bicycle manufacturers are different than you and me.
Let me be clear - I think testing metal components on bikes is a stupid and pointless waste of time and money. The bike industry testified in the CPSC 100 ppm hearing that when they tested a single part in ten places, they got ten different results. Whoa! They proved they had an unsolvable problem and apparently Congress listened. How heartwarming!
I gave similar testimony and submitted similar data about our products at the same hearing in the same panel sitting at the same table. Congress must have gone deaf by that time. Oddly, the CPSC staff included this data and my testimony in their 100 ppm report. So perhaps Congress isn't just deaf, they may be blind, too. Or perhaps they just don't bother with the details.
Inquiring minds want to know about this particular term benefiting bicycle manufacturers:
1. The AAP testified that there is a real risk that kids might lick their bicycles. Problem? Apparently not, but the testimony was taken morbidly seriously at the time. I wonder why Congress wants to protect bike lickers now.
2. Perhaps you recall that the CPSC rejected the request of Learning Curve to exempt its brass bushings on toy car wheels. This decision was a "major victory" for safety because, get ready for it, there was lead in the brass bushings although Bob Adler noted there was no danger even to a child at the "tipping point" in lead exposure. [Adler voted to reject LC's petition nevertheless. He "had" to, the law left him no choice.] Later the Consumers Union warned against playing brass instruments in a band because of the dreaded lead in brass. [Degchi (Curry cookware) is one of many traditional Indian cooking utensils and pots made of brass. Where are all the Indian victims from generations of eating off brass?] The CPSC also held the line against bikes, pens and ATVs over the purported lead content of their metal components because the Dems asserted that there is no safe level of lead. Is Congress signalling that metal components are uniquely safe in bicycles? How did Congress figure this out? Is there something in the Congressional record on this point?
The term about testing metal bicycle components first appeared in this bill when it went to the House floor on suspension. Bills on suspension cannot be amended. Hmmm.
3. I recall Rachel Weintraub intoning during testimony at the CPSC and in Congress that consumers expect their products to be tested before sale. [Former Commissioner David Pittle told the same tale at a CPSC hearing.] Bicycles won't be tested before sale now. How will consumers be able to sleep peacefully? How will they know which items are not tested (ATVs, books, bikes, resale goods of all types) and which are tested? Won't they have the same uncertainty again? I can feel the fabric of our society tearing a little bit . . . .
4. Bicycle manufacturers have indicated that tests of metal components vary depending on where you test the component. There is unpredictable variability in their test results because . . . metal components are not precisely homogeneous. Metals are used in components in many children's products, not just bikes. It follows that all metal components pose the same issue. It also follows that metals pose an equal risk of lead poisoning regardless of the product they are used in. So why must we test our grommets and staples when bikes can tool around untested?
5. Is there a reason why OTHER components on a bicycle (presumably made of plastic and vinyl) must be tested? Is there a known health hazard there that bike companies must protect against? Will those tests achieve anything for anyone? And why must every other product category still subject to the CPSIA test every component, whether metal or plastic?
6. The CPSC has held that it is "technologically feasible" to make every component of every children's product compliant to the 100 ppm standard. There were no exceptions to their conclusion. Why did Congress in its infinite wisdom decide that bicycles alone could be forgiven the need to meet this standard and alone to not have to test its metal components? [The other problem child under this provision, ATVs and motocross, was written out ENTIRELY.] Why weren't bikes made to comply with the astute judgment of the CPSC and shift over to new materials to meet the "toughest lead standard in the world"? After all, that only costs money, and Bob Adler assured us that the cost would be minor and worth it. Can't be too safe and, of course, we all know that safety delayed is safety denied. Isn't this action of our all-knowing Congress denying safety?
As I have noted, this law picks winners and losers. Applying reason and rationality to this arbitrary allocation of spoils is a pathetic waste of time at this point. Congress has decided what's best for all of us, and with the Tenenbaum gang in charge at the CPSC, you shouldn't spend much time hoping things are going to change in the future. Henry Waxman and Rachel Weintraub won.
I want to quote from another blog (thank you, Steven Hansen) on this amendment's path to the President's desk:
"This bill and the path it has taken is an example of why people are very frustrated with Congress and getting legislation passed in general. These 'legislative' fixes have been getting passed around in backrooms for months and when they finally did come to a 'vote' the 'fix' was already in and they sailed thru in minutes or seconds on votes that were purely formalities. There was really no warning that this would be passed when it did or in this fashion. If you did not get what you wanted in here well that's too bad because you are not likely to see any further relief for some time. Apparently Congress is going to be in recess until after Labor day as they had to work so hard to pass the debt ceiling bill."
Mr. Hansen is completely correct. We know that even Republican members found out about this amendment when it was docketed for a House floor vote. Mark-up, schmark-up. The Senate also made the decision (if that is even possible, since the Senate is an inanimate organization without a mind) to shift to HR 2715 without debate, and passed it with a voice vote. These decisions were literally made in minutes behind closed doors and Members of Congress had no time to read (and perhaps no interest to read) the "noncontroversial" bill. After three years of intense bickering, a small group of individuals made the decision for all of us that this bill is good enough to "fix" the CPSIA. There won't be another "fix" to this law again, perhaps EVER. You know the bill sucks if Henry Waxman is clucking about it. In fact, most of the text of the bill was his handiwork almost entirely (functional purpose, testing "relief" (Eshoo), database (Markey), small batch "relief").
And what did we get for all our good government dollars? I have previously given my quick assessment of this law and have no interest in repeating the exercise at this point. I would like, however, to highlight low lights of the bill:
Winners: ATVs, Bicycles, Resale Goods, Books, Libraries
Losers: See above list, and if you're not on it . . . you.
Technical Fixes of Past Congressional Screw-ups:
- 100 ppm lead standard is prospective now. And WHY wasn't Congress able to do this for 300 ppm or 600 ppm? Good question. The five CPSC Commissioners called for this particular change back in January 2010. What's the hurry now???
- Changes to testing requirement to "representative" rather than "random" samples. And we just hired our third statistician, too!
- Restricts the phthalates ban to accessible plasticized components. i guess Congress isn't worried about kids with serpent tongues any longer.
- Makes FUTURE crib standards prospective. And who said the $32 million in recently discarded good fixed-sided crib inventory died in vain?!
Small batch manufacturers, the most micro of businesses (under $1 million in total turnover) must register prior to utilizing any of the nifty cost-saving testing innovations now being cooked up by the very open-minded CPSC. This is the CPSC's version of the sex offender registry. Is there ANY basis for singling these people out for special attention? Why doesn't Mattel have to register, too? Oh, come on, you know we must have different rules for Mattel! They need their own firewalled labs and so on for their efficiency. [Here's a good example of their efficiency.] It's only fair, the real safety worry is the crafters . . . .
The only good news is that none of the small batch manufacturers will ever have to suffer this indignity. The clever gnomes of Congress have figured out how to appear to give something to those heart-rending little nobodies without doing squat. How do they do that? The only "relief" that the CPSC may implement must meet this standard: "Any such alternative requirements shall provide for reasonable methods to assure compliance with any applicable consumer product safety rule, ban, standard, or regulation." [Emphasis added] This CPSIA term has already been interpreted by this Commission multiple times. The word "assure" ensures that no relief will ever be given since nothing can "assure" compliance other than prophylaxis. Notably, the Commission has purportedly looked for this "out" for three years and came up with nada. And Bob Adler has been "agonizing" over it for that entire time. [I feel AWFUL for him, he suffers for each of us.] How will another year or two of agonizing produce a different result?
Suckers are welcome to wait longingly for this promised "relief" but they will be disappointed again and again. Protest is futile.
Disgusting, Repellent Hypocrisy:
Consider the amazing gimme provided to bicycle manufacturers:
"(B) METAL COMPONENT PARTS OF BICYCLES.—The third party testing requirements established under subsection (a) shall not apply to metal component parts of bicycles with respect to compliance with the lead content limits in place pursuant to section 101(b)(6) of the [CPSIA]."
They don't have to test their metal components at all. AT ALL, EVER. Bicycle manufacturers are different than you and me.
Let me be clear - I think testing metal components on bikes is a stupid and pointless waste of time and money. The bike industry testified in the CPSC 100 ppm hearing that when they tested a single part in ten places, they got ten different results. Whoa! They proved they had an unsolvable problem and apparently Congress listened. How heartwarming!
I gave similar testimony and submitted similar data about our products at the same hearing in the same panel sitting at the same table. Congress must have gone deaf by that time. Oddly, the CPSC staff included this data and my testimony in their 100 ppm report. So perhaps Congress isn't just deaf, they may be blind, too. Or perhaps they just don't bother with the details.
Inquiring minds want to know about this particular term benefiting bicycle manufacturers:
1. The AAP testified that there is a real risk that kids might lick their bicycles. Problem? Apparently not, but the testimony was taken morbidly seriously at the time. I wonder why Congress wants to protect bike lickers now.
2. Perhaps you recall that the CPSC rejected the request of Learning Curve to exempt its brass bushings on toy car wheels. This decision was a "major victory" for safety because, get ready for it, there was lead in the brass bushings although Bob Adler noted there was no danger even to a child at the "tipping point" in lead exposure. [Adler voted to reject LC's petition nevertheless. He "had" to, the law left him no choice.] Later the Consumers Union warned against playing brass instruments in a band because of the dreaded lead in brass. [Degchi (Curry cookware) is one of many traditional Indian cooking utensils and pots made of brass. Where are all the Indian victims from generations of eating off brass?] The CPSC also held the line against bikes, pens and ATVs over the purported lead content of their metal components because the Dems asserted that there is no safe level of lead. Is Congress signalling that metal components are uniquely safe in bicycles? How did Congress figure this out? Is there something in the Congressional record on this point?
The term about testing metal bicycle components first appeared in this bill when it went to the House floor on suspension. Bills on suspension cannot be amended. Hmmm.
3. I recall Rachel Weintraub intoning during testimony at the CPSC and in Congress that consumers expect their products to be tested before sale. [Former Commissioner David Pittle told the same tale at a CPSC hearing.] Bicycles won't be tested before sale now. How will consumers be able to sleep peacefully? How will they know which items are not tested (ATVs, books, bikes, resale goods of all types) and which are tested? Won't they have the same uncertainty again? I can feel the fabric of our society tearing a little bit . . . .
4. Bicycle manufacturers have indicated that tests of metal components vary depending on where you test the component. There is unpredictable variability in their test results because . . . metal components are not precisely homogeneous. Metals are used in components in many children's products, not just bikes. It follows that all metal components pose the same issue. It also follows that metals pose an equal risk of lead poisoning regardless of the product they are used in. So why must we test our grommets and staples when bikes can tool around untested?
5. Is there a reason why OTHER components on a bicycle (presumably made of plastic and vinyl) must be tested? Is there a known health hazard there that bike companies must protect against? Will those tests achieve anything for anyone? And why must every other product category still subject to the CPSIA test every component, whether metal or plastic?
6. The CPSC has held that it is "technologically feasible" to make every component of every children's product compliant to the 100 ppm standard. There were no exceptions to their conclusion. Why did Congress in its infinite wisdom decide that bicycles alone could be forgiven the need to meet this standard and alone to not have to test its metal components? [The other problem child under this provision, ATVs and motocross, was written out ENTIRELY.] Why weren't bikes made to comply with the astute judgment of the CPSC and shift over to new materials to meet the "toughest lead standard in the world"? After all, that only costs money, and Bob Adler assured us that the cost would be minor and worth it. Can't be too safe and, of course, we all know that safety delayed is safety denied. Isn't this action of our all-knowing Congress denying safety?
As I have noted, this law picks winners and losers. Applying reason and rationality to this arbitrary allocation of spoils is a pathetic waste of time at this point. Congress has decided what's best for all of us, and with the Tenenbaum gang in charge at the CPSC, you shouldn't spend much time hoping things are going to change in the future. Henry Waxman and Rachel Weintraub won.
CPSIA - A Comment Not to be Missed
From Anonymous:
"I have to say, as a lifelong Democrat, this whole CPSIA thing makes me feel incredibly powerful!
You have to admit that to be able to, during a deep recession, force the American people to pay the immense administration costs of the CPSC due to the CPSIA, while burying business in mountains of red tape and testing expense, and to do so while EXPLICITLY STATING that they have no obligation to show efficacy and in the face of a huge body of evidence that the CPSIA will accomplish little in terms of real safety is...Powerful!
As a registered Democrat I practically feel I am becoming one with the force. You Republicans can join the force too. All you have to do is close your mind, admit that evidence (when it contradicts your cherished gut feelings) is overrated, and join the Democratic Party. Then you too can blatantly screw the American people."
"I have to say, as a lifelong Democrat, this whole CPSIA thing makes me feel incredibly powerful!
You have to admit that to be able to, during a deep recession, force the American people to pay the immense administration costs of the CPSC due to the CPSIA, while burying business in mountains of red tape and testing expense, and to do so while EXPLICITLY STATING that they have no obligation to show efficacy and in the face of a huge body of evidence that the CPSIA will accomplish little in terms of real safety is...Powerful!
As a registered Democrat I practically feel I am becoming one with the force. You Republicans can join the force too. All you have to do is close your mind, admit that evidence (when it contradicts your cherished gut feelings) is overrated, and join the Democratic Party. Then you too can blatantly screw the American people."
Monday, August 1, 2011
CPSIA - As Predicted, the Senate Adopted House Bipartisan Bill Amending CPSIA
After three years of warring, Congress has finally passed an amendment to the CPSIA. HR 2715 was approved by the Senate this evening by voice vote.
This is expected to be the last legislative relief (thusfar the only legislative) relief from the CPSIA.
This is expected to be the last legislative relief (thusfar the only legislative) relief from the CPSIA.
CPSIA - The Senate Moves In the Direction of the House Bill
Confidential discussions are underway for Senate Democrats to accept the House bill amending the CPSIA which passed today 421-2. The pressure being applied relates to the consequences on U.S. retailers from the retroactive application of the 100 ppm lead standard. If the House bill is accepted by the Senate Dems, it will no doubt be hotlined for quick passage by voice vote, and then this ugly process will be over. With the pending exclusion under the bill of ATV's, bikes and books (the chosen winners, including the remarkable free pass on metal component testing by bicycle manufacturers), the rest of us (the chosen losers) will remain under the thumb of both the CPSIA and the Dem-controlled CPSC. I would note that we, the chosen losers, are no doubt the people Inez Tenenbaum refers to as "certain cynical special interests". If you disagree with her agenda, you must be a "cynical special interest", it seems to me. Thanks to Jan Schakowsky for this nifty idea!
I was asked earlier today if I supported the House bill (which subsequently passed 421-2). I replied that the bill is good for us, but not good enough. It does not address the big issues imperiling companies like ours, and furthermore, incorporates ineffective provisions on several fronts which are only there to bolster Dem chances for reelection. That said, I advised supporting the bill because frankly what choice did we have anyway? The impact of this bill, I noted, is like being offered a better cell in jail. You gotta take it, if only for the view.
But you're still in jail all the same.
I was asked earlier today if I supported the House bill (which subsequently passed 421-2). I replied that the bill is good for us, but not good enough. It does not address the big issues imperiling companies like ours, and furthermore, incorporates ineffective provisions on several fronts which are only there to bolster Dem chances for reelection. That said, I advised supporting the bill because frankly what choice did we have anyway? The impact of this bill, I noted, is like being offered a better cell in jail. You gotta take it, if only for the view.
But you're still in jail all the same.
CPSIA - I am Appearing on Fox Business Today
I am going to be interviewed by Fox Business today from our offices several times. The anticipated times (CST) are 11:50 AM, 12:15 PM (viewable on live.foxnews.com), 12:47 PM (teaser), 12:53 PM and 3:55 PM-ish. As noted, times are subject to change. The 12:15 PM interview can be seen online.
CPSIA - The Futility of Protesting the CPSIA
With Congress about to sign-off on a CPSIA Amendment which seals the fate of the regulated community, for better or worse depending on who you are, the question of what remains is quite relevant. With rights allocated and responsibilities delegated to a Dem-controlled CPSC Commission, what kind of justice can we expect in the future???
As if to answer this question, last week CPSC Chairman Inez Tenenbaum published a troubling Op-Ed dated July 28th ("CPSC Chief to Detractors: ‘Safety Delayed is Safety Denied’"). In her article, Ms. Tenenbaum asserted that Democrats on the CPSC Commission are responsible for many "major victories" over the resistance of the minority party Republicans:
"We have made great progress at CPSC, and at times, our achievements have come with support from the two Commissioners in the minority party. Though, consumers should know that vigorous resistance is the rule, rather than the exception, with these two Commissioners. Through a coordinated campaign, these Commissioners have sought to delay and distort our actions in an attempt to circumvent the will of American families and Congress. Their tactics have been unsuccessful, as demonstrated by the strength of the new safety measures we have established."
Democrats good, Republicans evil. . . . She continues, openly accusing minority Commissioners of almost venally favoring pocketbook issues over safety:
"We faced another example of this obstructionism in our effort to make sure cribs are safe. From November 2007 to April 2010, there were 36 deaths associated with crib structural defects. To address this critical issue, the Commission voted unanimously last December to establish new crib safety rules. Sadly, two of my colleagues in the minority party then attempted to delay the rules from going into effect last month. They were for it, and then they were against it, all in an effort to put the interests of a few retailers over the interests of hundreds of thousands of parents and very young children."
Perhaps granting me an honorable mention as an irritant, Ms. T. goes on to lay claim to the higher moral ground. As you know, this is all about the tug of war between good-and-evil . . . .
"It is ironic that the minority party Commissioners and certain cynical special interests continue to gesture wildly, alleging a failure to take the concerns of businesses into account, while many safety-conscious companies have been manufacturing, testing, and selling children’s products for nearly three years that meet and exceed the requirements set by Congress. The minority party’s approach does not solve problems and does not serve the public interest. The Consumer Product Safety Commission under my stewardship will not succumb to efforts to undermine this law. Like justice, safety delayed is safety denied." [Emphasis added]
[I can't let Ms. T get away with the "safety delayed is safety denied" baloney. To accept her rationale, one must conclude that safety was at stake in the cited decisions. Among her claims of "major victories" is the determination that 100 ppm is technologically feasible. Her own staff indicated that this decision will have "minimal" impact on safety. And the safety achieved by the decision? No reply. She also points to the new phthalates standard. Her own agency has TWICE considered these same chemicals for safety risks and TWICE given them a clean bill of health. Isn't it a stretch to call her new standards a "major victory" for consumers or to contend that safety was ever at stake? Not if data is irrelevant to you. As is to ensure her own blissful ignorance (and to avoid learning anything inconsistent with her political agenda), Ms. Tenenbaum has never asked for injury statistics to evaluate evidence of the utility of the new rules she KNOWS will choke business. Why not? Who wants to spoil a good thing? Safety delayed is safety denied . . . . "Safety" perhaps defined in terms of job security.]
Commissioners Nord and Northup replied to Tenenbaum's Op-Ed snarkiness, and you should read their replies. However, I think the real issue is how this Commission will handle its responsibilities once Congress bows out. Congress is about to let the Commission take it from here. Now what?
The Tenenbaum article raises a question in my mind. Does Commission voting records give any insight into the Dems' willingness to listen or their interest in listening to contrary viewpoints? Is it all so open-and-shut? Do we even have a fighting chance with these people, given their moral self-justifications? Commission voting statistics have never been analyzed publicly to my knowledge, so I put them together this afternoon. Please feel free to check my work - here are the Tenenbaum era CPSIA votes.
My tabulation excludes procedural votes and votes related to cribs and infant care, the phthalates CHAP and Pool safety. In other words, it is only those votes which relate to my advocacy on the core issues under the CPSIA. Notably, I am unable to access confidential votes - the spreadsheet only applies to votes cast in open sessions of the Commission.
There have been 46 votes since her confirmation, and 37 since she began to chair the meetings. Each and every decision of the Commission has been controlled by the Democrats. Each and every vote won by Democrats had all Dem Commissions in tow with two exceptions - the two stays objected to by Adler, an avowed stay-hater. Every 3-2 vote was three Dems to two Republicans. No doubt each vote was configured for Ms. Tenenbaum's consent - she has never voted against a proposed rule or ruling.
Think about that - all the Dems voted together on everything, except two dissents by one Commissioner on the same issue, the extension of a stay, and in those cases he wanted to be even less forgiving of reasonable business interests. For perspective on this, consider that this is the Commissioner who claims to "agonize" over every vote but always votes against even the mildest form of relief for business. He is also the one who stated that he wouldn't allow cost-benefit analysis to be performed "over my dead body". He only veered away from his fellow Dems on two votes on stays. What does that tell you?
After three years of advocacy and the considerable expenditure of cash, time and other resources by so many people affected by this law, it seems apparent from the voting data that nothing we ever said or any data we ever presented were in any way persuasive to the Dems. They were gracious in their expressions of gratitude for our participation in their processes, but given the outcomes, one must conclude that we simply enabled them to give the appearance of justice. After all, we got our day in court, or so they would have you believe. However, if anyone who comes before a particular judge is sentenced to death, one begins to wonder about justice after awhile.
The Dems have used slogans to justify their actions:
- "There's no safe level of lead."
- "Safety delayed is safety denied."
- "Over my dead body . . . ."
Is there a pattern in these slogans?
They are sanctimonious. They wreak of moral superiority, while at the same time pinning their work on other people. Ms. T. tells us that they were just carrying out the will of Congress. Nevertheless, she would have you believe that their work is necessary and a triumph for you.
They are self-righteous. There's something smug about their contentions. They will block cost-benefit analysis with their dead bodies. They portray themselves as courageous heroes, opposing devious foes. Taking a page out of the estimable Jan Schakowsky's playbook, Tenenbaum labels those who oppose her as "certain cynical special interests". Conspiracy theories bulk up her slender reed of self-justification.
The slogans play to emotions and ignore legal precedent and data. Bob Adler's "How do you measure the life of a little baby?" is a great example. Bob Adler is a lawyer and knows full well that the law provides a solid and respected answer to this question. As one practitioner told me, this kind of assessment is done every day in our courts and by other agencies. Adler knows that brains short out when he mentions "little babies" and who can argue that anything is worth more than the life of a "little baby". By invoking images of "little babies", Adler and Co. divert attention from incoherent rationales underlying their decisions.
[To save a "little baby", is it okay to eliminate one job? Ten jobs? 100 jobs? 1,000 jobs? 10,000 jobs? 100,000 jobs? 1,000,000 jobs? Where do we draw the line? The implication, if you listen to Mr. Adler (not that he ever listens to me), is that the value of a baby's life is infinite so no economic sacrifice is too great. He won't allow a cost-benefit analysis to be done, despite the fact that it is mandated by an Executive Order and is good law to boot, so the question will never answered. But isn't it clear - the line must be drawn somewhere. We can't function as a society if it isn't. Don't expect this kind of thinking as kong as Adler and Tenenbaum hold down the fort at the CPSC, however.]
The slogans are cynical, too. Tenenbaum's repeated request (four times by my count) in the hearing on 100 ppm that businesses are welcome, even encouraged, to file for exemptions from the technological feasibility decision is despicable and cynical. Cynical in a sincere voice and with a smile on your face is cynical all the same. The CPSC staff wrote up a 59-page analysis stating that EVERYTHING is technologically feasible. She knows this. Her encouragement can't and won't lead to exceptions - The CPSC staff have already "tied her hands". Still, she persists. Consider Ms. Tenenbaum's advice in her statement on the 100 ppm standard:
"Although the Commission already has voted on this issue today, if a manufacturer were to discover that it is not technologically feasible to manufacture a children’s product or category of children’s products, the agency always will consider a request for a technological feasibility determination through our normal petitioning process. During my tenure, the Commission has docketed and either has resolved or is considering several petitions requesting action on various issues. The criteria for any petition on the technological feasibility of achieving the .01 percent lead limit are laid out clearly by the statute and further explained in the staff briefing package. The process for writing a petition also is clearly set forth in the agency’s regulations. I encourage any business that discovers it manufactures a children’s product or category of children’s products for which it is not technologically feasible to meet the .01 percent limit to come to us with enough specific data to enable our staff to recommend that the Commission make a finding concerning technological feasibility under section 101(d) of the CPSIA. Our door always will be open to considering future requests. As always, for small businesses that may require additional guidance, our small business ombudsman stands ready to work to work with you on any of your concerns. I realize that this process has presented a challenge for manufacturers, and I commend those in industry who have worked so diligently to bring the lead levels in their products below .01 percent." [Emphasis added]
Makes me want to vomit. This is your government talking. Or perhaps lying?
So as Congress closes the door on helping us, doling out relief to favored groups like ATVs and books, they left the rest of us to fend for ourselves. The issue of how any of this related to safety was never considered in the pending amendments. Congress also chose not to address the abuses of the panel of hanging judges at the helm of the CPSC. The result is painful and a reminder that fighting City Hall is pointless. In this case, the Dems in charge have proven they are beyond reach and will not listen. Further resistance seems futile.
As if to answer this question, last week CPSC Chairman Inez Tenenbaum published a troubling Op-Ed dated July 28th ("CPSC Chief to Detractors: ‘Safety Delayed is Safety Denied’"). In her article, Ms. Tenenbaum asserted that Democrats on the CPSC Commission are responsible for many "major victories" over the resistance of the minority party Republicans:
"We have made great progress at CPSC, and at times, our achievements have come with support from the two Commissioners in the minority party. Though, consumers should know that vigorous resistance is the rule, rather than the exception, with these two Commissioners. Through a coordinated campaign, these Commissioners have sought to delay and distort our actions in an attempt to circumvent the will of American families and Congress. Their tactics have been unsuccessful, as demonstrated by the strength of the new safety measures we have established."
Democrats good, Republicans evil. . . . She continues, openly accusing minority Commissioners of almost venally favoring pocketbook issues over safety:
"We faced another example of this obstructionism in our effort to make sure cribs are safe. From November 2007 to April 2010, there were 36 deaths associated with crib structural defects. To address this critical issue, the Commission voted unanimously last December to establish new crib safety rules. Sadly, two of my colleagues in the minority party then attempted to delay the rules from going into effect last month. They were for it, and then they were against it, all in an effort to put the interests of a few retailers over the interests of hundreds of thousands of parents and very young children."
Perhaps granting me an honorable mention as an irritant, Ms. T. goes on to lay claim to the higher moral ground. As you know, this is all about the tug of war between good-and-evil . . . .
"It is ironic that the minority party Commissioners and certain cynical special interests continue to gesture wildly, alleging a failure to take the concerns of businesses into account, while many safety-conscious companies have been manufacturing, testing, and selling children’s products for nearly three years that meet and exceed the requirements set by Congress. The minority party’s approach does not solve problems and does not serve the public interest. The Consumer Product Safety Commission under my stewardship will not succumb to efforts to undermine this law. Like justice, safety delayed is safety denied." [Emphasis added]
[I can't let Ms. T get away with the "safety delayed is safety denied" baloney. To accept her rationale, one must conclude that safety was at stake in the cited decisions. Among her claims of "major victories" is the determination that 100 ppm is technologically feasible. Her own staff indicated that this decision will have "minimal" impact on safety. And the safety achieved by the decision? No reply. She also points to the new phthalates standard. Her own agency has TWICE considered these same chemicals for safety risks and TWICE given them a clean bill of health. Isn't it a stretch to call her new standards a "major victory" for consumers or to contend that safety was ever at stake? Not if data is irrelevant to you. As is to ensure her own blissful ignorance (and to avoid learning anything inconsistent with her political agenda), Ms. Tenenbaum has never asked for injury statistics to evaluate evidence of the utility of the new rules she KNOWS will choke business. Why not? Who wants to spoil a good thing? Safety delayed is safety denied . . . . "Safety" perhaps defined in terms of job security.]
Commissioners Nord and Northup replied to Tenenbaum's Op-Ed snarkiness, and you should read their replies. However, I think the real issue is how this Commission will handle its responsibilities once Congress bows out. Congress is about to let the Commission take it from here. Now what?
The Tenenbaum article raises a question in my mind. Does Commission voting records give any insight into the Dems' willingness to listen or their interest in listening to contrary viewpoints? Is it all so open-and-shut? Do we even have a fighting chance with these people, given their moral self-justifications? Commission voting statistics have never been analyzed publicly to my knowledge, so I put them together this afternoon. Please feel free to check my work - here are the Tenenbaum era CPSIA votes.
My tabulation excludes procedural votes and votes related to cribs and infant care, the phthalates CHAP and Pool safety. In other words, it is only those votes which relate to my advocacy on the core issues under the CPSIA. Notably, I am unable to access confidential votes - the spreadsheet only applies to votes cast in open sessions of the Commission.
There have been 46 votes since her confirmation, and 37 since she began to chair the meetings. Each and every decision of the Commission has been controlled by the Democrats. Each and every vote won by Democrats had all Dem Commissions in tow with two exceptions - the two stays objected to by Adler, an avowed stay-hater. Every 3-2 vote was three Dems to two Republicans. No doubt each vote was configured for Ms. Tenenbaum's consent - she has never voted against a proposed rule or ruling.
Think about that - all the Dems voted together on everything, except two dissents by one Commissioner on the same issue, the extension of a stay, and in those cases he wanted to be even less forgiving of reasonable business interests. For perspective on this, consider that this is the Commissioner who claims to "agonize" over every vote but always votes against even the mildest form of relief for business. He is also the one who stated that he wouldn't allow cost-benefit analysis to be performed "over my dead body". He only veered away from his fellow Dems on two votes on stays. What does that tell you?
After three years of advocacy and the considerable expenditure of cash, time and other resources by so many people affected by this law, it seems apparent from the voting data that nothing we ever said or any data we ever presented were in any way persuasive to the Dems. They were gracious in their expressions of gratitude for our participation in their processes, but given the outcomes, one must conclude that we simply enabled them to give the appearance of justice. After all, we got our day in court, or so they would have you believe. However, if anyone who comes before a particular judge is sentenced to death, one begins to wonder about justice after awhile.
The Dems have used slogans to justify their actions:
- "There's no safe level of lead."
- "Safety delayed is safety denied."
- "Over my dead body . . . ."
Is there a pattern in these slogans?
They are sanctimonious. They wreak of moral superiority, while at the same time pinning their work on other people. Ms. T. tells us that they were just carrying out the will of Congress. Nevertheless, she would have you believe that their work is necessary and a triumph for you.
They are self-righteous. There's something smug about their contentions. They will block cost-benefit analysis with their dead bodies. They portray themselves as courageous heroes, opposing devious foes. Taking a page out of the estimable Jan Schakowsky's playbook, Tenenbaum labels those who oppose her as "certain cynical special interests". Conspiracy theories bulk up her slender reed of self-justification.
The slogans play to emotions and ignore legal precedent and data. Bob Adler's "How do you measure the life of a little baby?" is a great example. Bob Adler is a lawyer and knows full well that the law provides a solid and respected answer to this question. As one practitioner told me, this kind of assessment is done every day in our courts and by other agencies. Adler knows that brains short out when he mentions "little babies" and who can argue that anything is worth more than the life of a "little baby". By invoking images of "little babies", Adler and Co. divert attention from incoherent rationales underlying their decisions.
[To save a "little baby", is it okay to eliminate one job? Ten jobs? 100 jobs? 1,000 jobs? 10,000 jobs? 100,000 jobs? 1,000,000 jobs? Where do we draw the line? The implication, if you listen to Mr. Adler (not that he ever listens to me), is that the value of a baby's life is infinite so no economic sacrifice is too great. He won't allow a cost-benefit analysis to be done, despite the fact that it is mandated by an Executive Order and is good law to boot, so the question will never answered. But isn't it clear - the line must be drawn somewhere. We can't function as a society if it isn't. Don't expect this kind of thinking as kong as Adler and Tenenbaum hold down the fort at the CPSC, however.]
The slogans are cynical, too. Tenenbaum's repeated request (four times by my count) in the hearing on 100 ppm that businesses are welcome, even encouraged, to file for exemptions from the technological feasibility decision is despicable and cynical. Cynical in a sincere voice and with a smile on your face is cynical all the same. The CPSC staff wrote up a 59-page analysis stating that EVERYTHING is technologically feasible. She knows this. Her encouragement can't and won't lead to exceptions - The CPSC staff have already "tied her hands". Still, she persists. Consider Ms. Tenenbaum's advice in her statement on the 100 ppm standard:
"Although the Commission already has voted on this issue today, if a manufacturer were to discover that it is not technologically feasible to manufacture a children’s product or category of children’s products, the agency always will consider a request for a technological feasibility determination through our normal petitioning process. During my tenure, the Commission has docketed and either has resolved or is considering several petitions requesting action on various issues. The criteria for any petition on the technological feasibility of achieving the .01 percent lead limit are laid out clearly by the statute and further explained in the staff briefing package. The process for writing a petition also is clearly set forth in the agency’s regulations. I encourage any business that discovers it manufactures a children’s product or category of children’s products for which it is not technologically feasible to meet the .01 percent limit to come to us with enough specific data to enable our staff to recommend that the Commission make a finding concerning technological feasibility under section 101(d) of the CPSIA. Our door always will be open to considering future requests. As always, for small businesses that may require additional guidance, our small business ombudsman stands ready to work to work with you on any of your concerns. I realize that this process has presented a challenge for manufacturers, and I commend those in industry who have worked so diligently to bring the lead levels in their products below .01 percent." [Emphasis added]
Makes me want to vomit. This is your government talking. Or perhaps lying?
So as Congress closes the door on helping us, doling out relief to favored groups like ATVs and books, they left the rest of us to fend for ourselves. The issue of how any of this related to safety was never considered in the pending amendments. Congress also chose not to address the abuses of the panel of hanging judges at the helm of the CPSC. The result is painful and a reminder that fighting City Hall is pointless. In this case, the Dems in charge have proven they are beyond reach and will not listen. Further resistance seems futile.
Sunday, July 31, 2011
CPSIA - The House Answers with its Own (Bipartisan) Suspension Bill
The Republicans and Democrats on the House Energy and Commerce Committee have apparently suddenly agreed on a new 29-page draft CPSIA Amendment. This is a modification of ECADA and is probably the best that the House Republicans could extract from the Dems. It is also part of a game of chicken between the House and Senate on how to amend the CPSIA. The bill is sponsored by Mary Bono-Mack and G.K. Butterfield, meaning that it is a bipartisan bill. It will proceed to the House floor for a vote tomorrow, cannot be amended and will only pass by 2/3 majority vote. It could be a voice "consensus" vote and will likely pass without opposition given its bipartisan character.
A quick review of this amendment:
a. 100 ppm lead standard is made prospective.
b. Functional Purpose exception process remains part of the amendment. [I have written extensively on how this provision is a sham. I haven't changed my mind.]
c. ATV exception is included. This is death knell for any hope of later CPSIA amendments. This signals the end of the road.
d. The terms of the bike stay are made into law. They also get a really sweet deal - as far as I can tell, they don't have to test metal components anymore. That provision is buried on page 19 in the book exception section. All the better to sneak it through. Nice for them . . . but no word as to why we must test metal components. Too bad for us, I guess. . . .
e. Resale goods exception is included.
f. Testing rules are now based on "representative" samples, not "random" samples. The rest of the provision is based on the Eshoo amendment requiring further "inquiry" on reducing costs of third party testing. The Eshoo model still requires "assuring compliance" with the lead standards. This is the big dollar issue, as everyone knows, and is the one issue that touches everyone, all the ordinary businesses. This provision is a punt and offers little prospect for future relief.
This provision is a huge time-waster and will never result in anything useful because the standard for relief is in the context of "assuring compliance". It also calls for more business "instruction" like that found in the current draft of the "15 Month Rule". [The status of the 15 Month Rule is not apparently addressed and may still emerge from the agency to bite us later this year.] The authors of the 15 Month Rule draft rule know exactly zippo about the real world and if we are ever supposed to follow their sage dictates, the losses will mount . . . fast. In any event, this Commission will never feel comfortable with anything less than prophylactic assurance, injury statistics be damned. I hate this provision because I don't trust the CPSC Commission under current leadership.
Notably, this provision does not stay compliance with the testing rules due to go off stay at the end of the year pending resolution of the Eshoo inquiry. Congress has not dictated that the stay be extended, and believe me, it won't be. The reasoning behind this provision escapes me.
g. Small batch manufacturers receive minimal relief ("reasonable methods to assure compliance"). The real sham part of this is the tantalizing prospect that the CPSC will actually deliver on this demand for testing relief. Call me a cynic, but they have received testimony out the wazoo for three years on this topic, and have yet to find a way to "help" the remaining micro-businesses in the market. And the reason we should believe they will make a afety testing discovery in the future? Your guess is as good as mine. They won't.
Small batch manufacturers have to register before benefiting from this wonderful "relief". The registration requirement is deeply offensive to me and really shames Congress and the agency. What did these little companies do to deserve this treatment? What makes the House (Dems) think this is a good idea? It smacks of 1984 and is utterly detached from any rational assessment of risk. Do small batch manufacturers have an exceptionally bad safety track record meriting this kind of surveillance? Of course not. That they would accept or even support this treatment is shocking to me. In any event, no relief is offered to any company with gross revenues in excess of $1,000,000, so it's really just for the benefit of the really micro micro-businesses. It won't benefit me even for small unit volume items we currently sell - our top line makes us ineligible for any possible relief. Happy registering, little guys!
h. Ordinary books and printed materials get a pass.
i. Durable Nursery Products standards provision (not reviewed).
j. Phthalates standard applied only to "plasticized" components and not to inaccessible components. Guess that means no more testing of paper, wood and metal.
k. Authority to exclude items from tracking labels provision is given to the CPSC based on practicability. This is promising although the Dem hanging judges on the Commission have yet to make a single decision that saved a business a dollar for any reason. Don't hold your breath.
l. Database rules are tweaked in a meaningless way consistent with the Markey proposal on database. NO relief offered.
THERE IS NO RELIEF GIVEN TO EDUCATIONAL MATERIALS. Thanks, Congress. I am glad my kids are out of elementary school by now.
That's it, more or less. Hope you like it, that's all you're going to get.
A quick review of this amendment:
a. 100 ppm lead standard is made prospective.
b. Functional Purpose exception process remains part of the amendment. [I have written extensively on how this provision is a sham. I haven't changed my mind.]
c. ATV exception is included. This is death knell for any hope of later CPSIA amendments. This signals the end of the road.
d. The terms of the bike stay are made into law. They also get a really sweet deal - as far as I can tell, they don't have to test metal components anymore. That provision is buried on page 19 in the book exception section. All the better to sneak it through. Nice for them . . . but no word as to why we must test metal components. Too bad for us, I guess. . . .
e. Resale goods exception is included.
f. Testing rules are now based on "representative" samples, not "random" samples. The rest of the provision is based on the Eshoo amendment requiring further "inquiry" on reducing costs of third party testing. The Eshoo model still requires "assuring compliance" with the lead standards. This is the big dollar issue, as everyone knows, and is the one issue that touches everyone, all the ordinary businesses. This provision is a punt and offers little prospect for future relief.
This provision is a huge time-waster and will never result in anything useful because the standard for relief is in the context of "assuring compliance". It also calls for more business "instruction" like that found in the current draft of the "15 Month Rule". [The status of the 15 Month Rule is not apparently addressed and may still emerge from the agency to bite us later this year.] The authors of the 15 Month Rule draft rule know exactly zippo about the real world and if we are ever supposed to follow their sage dictates, the losses will mount . . . fast. In any event, this Commission will never feel comfortable with anything less than prophylactic assurance, injury statistics be damned. I hate this provision because I don't trust the CPSC Commission under current leadership.
Notably, this provision does not stay compliance with the testing rules due to go off stay at the end of the year pending resolution of the Eshoo inquiry. Congress has not dictated that the stay be extended, and believe me, it won't be. The reasoning behind this provision escapes me.
g. Small batch manufacturers receive minimal relief ("reasonable methods to assure compliance"). The real sham part of this is the tantalizing prospect that the CPSC will actually deliver on this demand for testing relief. Call me a cynic, but they have received testimony out the wazoo for three years on this topic, and have yet to find a way to "help" the remaining micro-businesses in the market. And the reason we should believe they will make a afety testing discovery in the future? Your guess is as good as mine. They won't.
Small batch manufacturers have to register before benefiting from this wonderful "relief". The registration requirement is deeply offensive to me and really shames Congress and the agency. What did these little companies do to deserve this treatment? What makes the House (Dems) think this is a good idea? It smacks of 1984 and is utterly detached from any rational assessment of risk. Do small batch manufacturers have an exceptionally bad safety track record meriting this kind of surveillance? Of course not. That they would accept or even support this treatment is shocking to me. In any event, no relief is offered to any company with gross revenues in excess of $1,000,000, so it's really just for the benefit of the really micro micro-businesses. It won't benefit me even for small unit volume items we currently sell - our top line makes us ineligible for any possible relief. Happy registering, little guys!
h. Ordinary books and printed materials get a pass.
i. Durable Nursery Products standards provision (not reviewed).
j. Phthalates standard applied only to "plasticized" components and not to inaccessible components. Guess that means no more testing of paper, wood and metal.
k. Authority to exclude items from tracking labels provision is given to the CPSC based on practicability. This is promising although the Dem hanging judges on the Commission have yet to make a single decision that saved a business a dollar for any reason. Don't hold your breath.
l. Database rules are tweaked in a meaningless way consistent with the Markey proposal on database. NO relief offered.
THERE IS NO RELIEF GIVEN TO EDUCATIONAL MATERIALS. Thanks, Congress. I am glad my kids are out of elementary school by now.
That's it, more or less. Hope you like it, that's all you're going to get.
CPSIA - CPSC Enforcement Officer Speaks
In a July 29th blogpost, CPSC Commissioner Anne Northup reproduced a letter she received from a CPSC Field Agent. Like so much data rejected by the Validation Bias Democrats on the Commission, I am sure this letter will be ignored. Why not decide for yourself if it's relevant?
"I just had an opportunity to read your July 20 statement concerning lead ppm.
I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world.
Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right.
It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy." [Emphasis added]
I wish I shared the Field Agent's optimism. Hey, buddy, those days are looooooong gone.
"I just had an opportunity to read your July 20 statement concerning lead ppm.
I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world.
Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right.
It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy." [Emphasis added]
I wish I shared the Field Agent's optimism. Hey, buddy, those days are looooooong gone.
CPSIA - Pryor Amendment (as amended) to be Hotlined in Senate Tonight
According to my information, the Pryor Amendment, as amended to address the needs of resale goods stores, will be hotlined in the Senate this evening (passed by unanimous consent). The bill then proceeds back to the House which remains a "house-divided". Not unlike other showdowns in this disgusting spectacle over the past three years, it will come down to a nerve-wracking poker game where you are the pot.
Who will win the day? If the Pryor Amendment becomes law, you can assume the chances of passage of a common sense amendment of the CPSIA just went from 0.03% to 0.01% (not my joke, unfortunately - I am not as clever as some of the other cynical observers of this mess). If the ATV'rs, bikes and resale goods victims are cut out of this mess, the rest of us will be the chosen losers. There are no winners.
It will be up to the House Republicans to not hand a historic, economy-wrecking victory to Henry Waxman. They know what's at stake. We are all depending on a sensible outcome of a quick Conference Committee. The National Debt crisis victory should increase confidence. I only wish we were the subject of such public scrutiny.
The next few days will seal our fates, once and for all.
More to say later this evening.
Who will win the day? If the Pryor Amendment becomes law, you can assume the chances of passage of a common sense amendment of the CPSIA just went from 0.03% to 0.01% (not my joke, unfortunately - I am not as clever as some of the other cynical observers of this mess). If the ATV'rs, bikes and resale goods victims are cut out of this mess, the rest of us will be the chosen losers. There are no winners.
It will be up to the House Republicans to not hand a historic, economy-wrecking victory to Henry Waxman. They know what's at stake. We are all depending on a sensible outcome of a quick Conference Committee. The National Debt crisis victory should increase confidence. I only wish we were the subject of such public scrutiny.
The next few days will seal our fates, once and for all.
More to say later this evening.
Friday, July 29, 2011
CPSIA - Rumorville on Pryor Bill
A little bird tells me that some people have verified that the the Pryor bill to amend the CPSIA has been "hotlined" in the Senate as a step to immediate passage. Other people have gone silent or have been unable to verify, so it's not an entirely clear situation. "Hotlined" bills are on track for a unanimous consent vote.
I gathered this explanation from Republican Committee on Rules site on hotlining:
"The Senate has largely institutionalized its unanimous consent process. On major pieces of legislation, the Majority or Minority leader may force a Senator from the other party to object to a bill’s consideration in the absence of a unanimous consent agreement. Similarly, the Senate will hotline a bill when it is ready to be considered under a unanimous consent agreement. Under the hotline process, the Senate cloakrooms notify Senators of upcoming bills that may be considered under unanimous consent to provide them with a final opportunity to object."
It's all rumor at this time, but this suggests that someone wants to get something done now. While the Pryor bill is imperfect as drafted, it's better than nothing, and if there is a chance of a conference bill later, the possibility of a better bill is not yet dead . . . before we all die.
I gathered this explanation from Republican Committee on Rules site on hotlining:
"The Senate has largely institutionalized its unanimous consent process. On major pieces of legislation, the Majority or Minority leader may force a Senator from the other party to object to a bill’s consideration in the absence of a unanimous consent agreement. Similarly, the Senate will hotline a bill when it is ready to be considered under a unanimous consent agreement. Under the hotline process, the Senate cloakrooms notify Senators of upcoming bills that may be considered under unanimous consent to provide them with a final opportunity to object."
It's all rumor at this time, but this suggests that someone wants to get something done now. While the Pryor bill is imperfect as drafted, it's better than nothing, and if there is a chance of a conference bill later, the possibility of a better bill is not yet dead . . . before we all die.
Thursday, July 28, 2011
CPSIA - Don't Faint . . . Senator Pryor Put Up CPSIA Amendment Today
Senator Pryor today introduced the so-called "Consumer Product Safety Flexibility Act of 2011" to amend the CPSIA. This four-pager is targeted at three problems:
First, it makes the 100 ppm lead-in-substrate standard prospective.
Second, it exempts ATVs and motocross (off-highway vehicles) from the lead standards of the CPSIA. It also gives a year extension on the standards for all-terrain vehicles.
Third, it codifies the holdings of the CPSC stay as it applies to bicycles (‘Notice of Stay of Enforcement Pertaining to Bicycles and Related Products’, published June 30, 2009 (74 Fed. Reg. 31254)), thus exempting bicycles from the 100 ppm standard.
The bill to my knowledge is not up on any of the Congressional monitoring sites yet and does not have a bill number.
This is a useful effort by Senator Pryor. For one thing, the 100 ppm lead standard issue MUST be addressed before Congress goes on its August recess. Hats off to Mr. Pryor for at least providing a means to address this issue. Rumorville has it that the Senator wants to do more than is expressed by this bill. Other Dem Senators are on the list as purportedly wanting to do more for us. All I can say is . . . get in touch with your feelings, Senators. We need help NOW and we would appreciate your help and leadership in particular.
As for saving the ATV'rs and bikers, well, they never belonged under this law in the first place. The devastation wrought by this law should have been addressed long ago. That said, there is nothing more or less sympathetic about ATVs or bikes under this law than the rest of us losers under the act. None of us were poisoning children or even injuring children with lead-in-substrate, much less phthalates. The neuroses of the consumer groups is no more applicable to bikes and ATVs than to us. [Please note my prior disclosures, dating back to January, that the AAP has long supported application of CPSIA lead provisions against the ATV industry to effect a tacit ban of youth model ATVs. The AAP admits they want youth model ATVs off the road. This duplicity exposes the sham nature of the CPSIA, how it has been misused for political reasons by the white-cloaked and self-righteous proponents of children's product safety.]
Having spent literally countless hours on advocacy on this issue since 2007, I cannot say what more needs to be said or can be said to explain how misconceived the law is. The ATVrs and bike industry should be let off the hook . . . but so should all the other innocents. If ATVs deserve a pass, so do rhinestones, so do t-shirts and shoes, so do books, so do science kits. Come on , guys, science kits?! Do you REALLY want to send America's science education back to the Stone Ages? It's time to loosen the noose on American industry.
One can only hope that this bill moves quickly through the Senate, and that the House quickly regains its Mojo on ECADA, leading to a useful and hopefully productive Conference negotiation to produce the long-awaited CPSIA Amendment that we have long craved and which is so long overdue.
First, it makes the 100 ppm lead-in-substrate standard prospective.
Second, it exempts ATVs and motocross (off-highway vehicles) from the lead standards of the CPSIA. It also gives a year extension on the standards for all-terrain vehicles.
Third, it codifies the holdings of the CPSC stay as it applies to bicycles (‘Notice of Stay of Enforcement Pertaining to Bicycles and Related Products’, published June 30, 2009 (74 Fed. Reg. 31254)), thus exempting bicycles from the 100 ppm standard.
The bill to my knowledge is not up on any of the Congressional monitoring sites yet and does not have a bill number.
This is a useful effort by Senator Pryor. For one thing, the 100 ppm lead standard issue MUST be addressed before Congress goes on its August recess. Hats off to Mr. Pryor for at least providing a means to address this issue. Rumorville has it that the Senator wants to do more than is expressed by this bill. Other Dem Senators are on the list as purportedly wanting to do more for us. All I can say is . . . get in touch with your feelings, Senators. We need help NOW and we would appreciate your help and leadership in particular.
As for saving the ATV'rs and bikers, well, they never belonged under this law in the first place. The devastation wrought by this law should have been addressed long ago. That said, there is nothing more or less sympathetic about ATVs or bikes under this law than the rest of us losers under the act. None of us were poisoning children or even injuring children with lead-in-substrate, much less phthalates. The neuroses of the consumer groups is no more applicable to bikes and ATVs than to us. [Please note my prior disclosures, dating back to January, that the AAP has long supported application of CPSIA lead provisions against the ATV industry to effect a tacit ban of youth model ATVs. The AAP admits they want youth model ATVs off the road. This duplicity exposes the sham nature of the CPSIA, how it has been misused for political reasons by the white-cloaked and self-righteous proponents of children's product safety.]
Having spent literally countless hours on advocacy on this issue since 2007, I cannot say what more needs to be said or can be said to explain how misconceived the law is. The ATVrs and bike industry should be let off the hook . . . but so should all the other innocents. If ATVs deserve a pass, so do rhinestones, so do t-shirts and shoes, so do books, so do science kits. Come on , guys, science kits?! Do you REALLY want to send America's science education back to the Stone Ages? It's time to loosen the noose on American industry.
One can only hope that this bill moves quickly through the Senate, and that the House quickly regains its Mojo on ECADA, leading to a useful and hopefully productive Conference negotiation to produce the long-awaited CPSIA Amendment that we have long craved and which is so long overdue.
Tuesday, July 26, 2011
CPSIA - Northup Lashes Out at Majority for Disregarding Executive Order
Letters to the Editor
Wall Street Journal
July 26, 2011
CPSC Should Follow Obama's Policy
As one of the minority (Republican) commissioners on the Consumer Product Safety Commission who voted against finding that it was technologically feasible to lower the lead content in all children's products from 99.97% lead free to 99.99% lead free, I appreciate your July 20 editorial "Toying with Deregulation." You accurately paint a grim picture of the commission's disregard for President Obama's appeal that regulatory agencies promote "economic growth, innovation, competitiveness and job creation." But you omit the even more disturbing evidence that the commission majority twisted the language of the Consumer Product Safety Improvement Act and ignored the evidence before it in order to reach a predetermined outcome.
As the majority proved with its 100 ppm vote, it will take much more than an executive order to stop an agency bent on imposing its radical agenda without regard for the economic consequences. See www.cpsc.gov/pr/northup07202011.pdf.
Anne M. Northup
Commissioner
CPSC
Washington
Wall Street Journal
July 26, 2011
CPSC Should Follow Obama's Policy
As one of the minority (Republican) commissioners on the Consumer Product Safety Commission who voted against finding that it was technologically feasible to lower the lead content in all children's products from 99.97% lead free to 99.99% lead free, I appreciate your July 20 editorial "Toying with Deregulation." You accurately paint a grim picture of the commission's disregard for President Obama's appeal that regulatory agencies promote "economic growth, innovation, competitiveness and job creation." But you omit the even more disturbing evidence that the commission majority twisted the language of the Consumer Product Safety Improvement Act and ignored the evidence before it in order to reach a predetermined outcome.
As the majority proved with its 100 ppm vote, it will take much more than an executive order to stop an agency bent on imposing its radical agenda without regard for the economic consequences. See www.cpsc.gov/pr/northup07202011.pdf.
Anne M. Northup
Commissioner
CPSC
Washington
CPSIA - Amazon to Kids' Hat Companies: Prove You're Lead-free by August 7th
Hope your kids don't need hats. Perhaps you are aware that absent Congressional action, the new 100 ppm lead standard will be imposed retroactively by August 14th. The five Commissioners have requested that this provision be applied prospectively (they made this request in January 2010) yet Congress has done nothing about it.
As a matter of fact, now that you mention it, they haven't done anything about any of the problems under the CPSIA. I guess as Rachel Weintraub suggests, more "discussion" is needed.
Anyhow, I received the below letter (excerpts are reproduced only) from a maker of children's hats. Anyone out there ever heard of lead poisoning from a hat? Me, either. Nevertheless this company is subject to the stupid rules of the CPSIA for reasons best explained by Henry Waxman, and are now being required to prove up the "safety" of their hats.
So how do you expect hat companies to respond to this kind of request? Do you think they can afford the tests? To employ the people to administer the tests, apply the tracking labels, maintain the records, deal with all the paper-pushing by their customers, pay for the lawyers, fill out the forms and so on? I can think of several likely replies. First, cut the product line. Don't waste money on testing so many hats. Second, simplify the product line. Remember cute hats with lots of colors? Thing of the past. Better snap 'em up while you can. Monochrome is the new rainbow. Third, make hats for kids over 12 or for adults. Then you can sprinkle your little hats with lead to your heart's content. No one will care.
Oh, I know, natural fibers and certain fabrics don't need to be tested. Yes, but my customers don't care much for these niceties. They want a piece of paper for the files. If you think we test only when we have to, you are wrong. That's the bare minimum. Most tests are repeated or substantially exceeded, even beyond the absurd levels required by law. This hat company was pretty depressed by the news delivered by Amazon. Get used to it.
Or go pick up some hats right now. If you have little kids, buy them in several sizes while you're at it. No time like the present. . . .
Amazon Letter (excerpts):
Dear Amazon Vendor:
The Federal Government enacted the Consumer Product Safety Improvement Act of 2008 (the “Act”) that, in addition to other requirements, prescribes strict limits on the content of lead and phthalates in products intended for children.
New stricter limits on lead in children’s products will go into effect on August 14, 2011. This message outlines the steps Amazon will require vendors to take to confirm that their products comply with the new stricter lead limits affecting children’s products.
Vendors are responsible for thoroughly familiarizing themselves with all the requirements of the Act and for tracking and complying with any regulations issued by Consumer Product Safety Commission (CPSC). Additional information on the Act is available on the CPSC website at www.cpsc.gov. Specific provisions of the Act discussed in this letter are for ease of reference only.
Actions Required: What you need to do
By July 31, 2011, each vendor must confirm and report to Amazon.com that all of your children’s products (i) in Amazon.com’s inventory, as reported to you in Vendor Central, and (ii) in transit or shipped to Amazon.com, will comply with applicable limits set forth in Column I.
Limit: Lead 100 ppm
Effective Date of Limit per the Act: August 14, 2011
Products shipped to Amazon must comply by: July 31, 2011
Noncompliant products are subject to return to Vendor: August 7, 2011
Step 1: Verify that your products are compliant with the lead content requirements going into effect on August 14, 2011.
Vendors are responsible for determining whether the products they sell on Amazon.com are compliant with the new lead requirements.
As a matter of fact, now that you mention it, they haven't done anything about any of the problems under the CPSIA. I guess as Rachel Weintraub suggests, more "discussion" is needed.
Anyhow, I received the below letter (excerpts are reproduced only) from a maker of children's hats. Anyone out there ever heard of lead poisoning from a hat? Me, either. Nevertheless this company is subject to the stupid rules of the CPSIA for reasons best explained by Henry Waxman, and are now being required to prove up the "safety" of their hats.
So how do you expect hat companies to respond to this kind of request? Do you think they can afford the tests? To employ the people to administer the tests, apply the tracking labels, maintain the records, deal with all the paper-pushing by their customers, pay for the lawyers, fill out the forms and so on? I can think of several likely replies. First, cut the product line. Don't waste money on testing so many hats. Second, simplify the product line. Remember cute hats with lots of colors? Thing of the past. Better snap 'em up while you can. Monochrome is the new rainbow. Third, make hats for kids over 12 or for adults. Then you can sprinkle your little hats with lead to your heart's content. No one will care.
Oh, I know, natural fibers and certain fabrics don't need to be tested. Yes, but my customers don't care much for these niceties. They want a piece of paper for the files. If you think we test only when we have to, you are wrong. That's the bare minimum. Most tests are repeated or substantially exceeded, even beyond the absurd levels required by law. This hat company was pretty depressed by the news delivered by Amazon. Get used to it.
Or go pick up some hats right now. If you have little kids, buy them in several sizes while you're at it. No time like the present. . . .
Amazon Letter (excerpts):
Dear Amazon Vendor:
The Federal Government enacted the Consumer Product Safety Improvement Act of 2008 (the “Act”) that, in addition to other requirements, prescribes strict limits on the content of lead and phthalates in products intended for children.
New stricter limits on lead in children’s products will go into effect on August 14, 2011. This message outlines the steps Amazon will require vendors to take to confirm that their products comply with the new stricter lead limits affecting children’s products.
Vendors are responsible for thoroughly familiarizing themselves with all the requirements of the Act and for tracking and complying with any regulations issued by Consumer Product Safety Commission (CPSC). Additional information on the Act is available on the CPSC website at www.cpsc.gov. Specific provisions of the Act discussed in this letter are for ease of reference only.
Actions Required: What you need to do
By July 31, 2011, each vendor must confirm and report to Amazon.com that all of your children’s products (i) in Amazon.com’s inventory, as reported to you in Vendor Central, and (ii) in transit or shipped to Amazon.com, will comply with applicable limits set forth in Column I.
Limit: Lead 100 ppm
Effective Date of Limit per the Act: August 14, 2011
Products shipped to Amazon must comply by: July 31, 2011
Noncompliant products are subject to return to Vendor: August 7, 2011
Step 1: Verify that your products are compliant with the lead content requirements going into effect on August 14, 2011.
Vendors are responsible for determining whether the products they sell on Amazon.com are compliant with the new lead requirements.
CPSIA - Tenenbaum and Co. Thumb Their Noses at Obama's Executive Order
The sparks were certainly flying at the July 20th Commission meeting last week. With access finally granted by the CPSC today to the video footage, I was able to see for myself all the excitement at that storied meeting. I was amply rewarded with a display of regulatory arrogance you rarely see on tape - Inez Tenenbaum and Bob Adler standing tall and thumbing their noses at a binding Executive Order. I guess the CPSC is now above ALL law, other than laws endorsed by Henry Waxman.
The tension in the room at this meeting was palpable, and the usual shenanigans took place, like Ami Gadhia's claims that CPSC Staff found that manufacturers intentionally add lead to children's products (47:31). While I would normally take the scummy consumer group reps to task for their misstatements (lies?) and innuendo, in fact at this hearing, a much more important issue was "debated". [Bickered over is more like it.] Namely, whether the CPSC has to follow President Obama's Executive Order to preform cost-benefit analyses on regulations under the CPSIA. I have previously addressed this issue in blogposts on July 12, July 14, July 20 and July 21.
After the usual pointless sparring over the ability of the CPSC to do the right thing (don't worry, Bob Adler "agonized" over these difficult decisions . . . and then voted to screw industry), the meeting devolved into a series of often incoherent and inconsistent defensive rebuffs by Dems in support of their political conclusion that they can blow off the Executive Order to the extent that it threatens in any way their work implementing the CPSIA.
Of course, the idea of the Executive Order was to ensure that those rules are economically justified. Blah blah blah. The view of the Dem Commissioners is that evidence of the extreme economic impact of these rules is not relevant to the CPSIA rulemaking process, notwithstanding Mr. Obama's little note.
Chairman Tenenbaum laid down the law at 1:15 in the tape:
"I'd like to comment on the Executive Order [which says] 'Nothing in this order shall be construed to impair or otherwise affect authority granted by law to a department or agency, or the head thereof . . . . This order shall be implemented consistent with applicable law and subject to the availability of appropriations.' Congress was very clear. They wanted the lead limits at 600 then 300 then 100. We have looked at this from all angles. And I can tell you, consistent with the law, we have implemented the CPSIA. . . . Congress was very aware that we could not write regulations unless we did a Section 9 cost-benefit analysis in some of the statutes we implement. And they on purpose did not require us to do cost-benefit analysis because they realized the urgency of getting lead out of children's products. . . . And that my legal understanding. . . . And so to have this fiction be a part of this public hearing, that we are required to do cost-benefit analysis under the CPSIA under the Executive Order cannot go unanswered." [Emphasis added]
Take that, Obama! Your EO is fictional! Tenenbaum seems to be saying that because Congress permitted expedited rulemaking under the CPSIA, all regulations under CPSIA are shielded from any cost-benefit analysis mandated by the President. She pins this on the standards established under the CPSIA. Interestingly, she seems to overlook that the 100 ppm standard was subject to a rulemaking process, and the Obama order specifically addresses rulemakings. She also glosses over so many other rulemakings which are remote from the standards. Details, details. . . .
The Obama order instructs the CPSC to follow Executive Order 13563 to the extent "permitted" by law. The CPSIA does not preclude cost-benefit analysis, it only allowed the agency to skip it. The only direct reference to cost-benefit in the CPSIA is in Section 233 where cost-benefit analysis is specifically written out of the Poison Prevention Packaging Act of 1970. Cost-benefit analysis is NOT specifically written out of the CPSA in the CPSIA anywhere. The Dem Commissioners didn't address this point during the July 20th meeting.
EO 13563 in relevant part says: ". . . to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts; and equity). . . ." The President's new EO applies this verbiage to the CPSC. Tenenbaum just blows it off entirely. The President must be below Henry Waxman.
Ms. T gets pretty snippy at points. "There are people on this Commission that want to contort and use this Executive Order. I have spoken to attorneys at the White House; I know I stand on firm legal ground. And so please don't leave this meeting thinking that we are expected to do cost-benefit analysis or this Executive Order mandates that we do that. It does not!"
Tenenbaum's argument - I am judge, I am jury, don't question me.
Anne Northup notes that the stalemate in Congress is no indication that the law requires such harsh and inflexible positions by the agency:
"It's also clear that Members of Congress . . . are universally talking about, even the authors of the bill, changes that ought to be made [to the CPSIA]. The reason that Congress has not acted is that [there is disagreement over how broadly to amend the law.] They have not told us that they think we should proceed in the most aggressive fashion and in the most punishing rulemakings and to take advantage of every opportunity we have to regulate more toys rather than less, more tests rather than less, and so forth. . . . All an Executive Order does is ask us to . . . take seriously whether or not we can find alternative ways of achieving the meaning of the law without the disruption in the economy."
Continuing the debate (argument), Bob Adler had much to say as usual. As we know, Bob Adler is already on record volunteering to block cost-benefit analysis with his dead body. [See "Is that a promise, Bob?"] At the July 20th meeting, he proffered the reason why cost-benefit analysis is inapplicable here:
"My colleague asked whether there is anything in the statute that specifically exempts us from having to, from being able to do cost-benefit, and I think in terms of the precise parsing of the statute, that's correct. But let's be clear: it effectively in all major respects precludes us from doing that. When they've given us 42 deadlines to achieve in just a very short period of time, when they've specifically exempted us from having to do these incredibly time-consuming and costly Section 9 procedures, i think there's a very clear message from Congress there. Congress in effect was saying 'We've done the cost-benefit analysis. Now we want you to implement the law."
So, the reason not to obey the President - Congress couldn't have meant us to do a cost-benefit analysis because otherwise they wouldn't have given us so much darned work to do. In addition, by reducing our burden with looser Section 9 procedures to expedite the implementation process, Adler says Congress meant to say that they had already "completed" a cost-benefit analysis. Mr. Adler does not attempt to prove his point, his assertion being enough apparently. I am always impressed by the self-justifications of regulators who claim to be able to read the "mind" of an inanimate body like Congress. In law school, they taught us to follow rules of legislative interpretation. That's so Old School! Nowadays you only have to attribute a "thought" to Congress to "prove" legislative intent.
Of course, just a few days ago, Bob asserted something rather different:
"It says "to the extent permitted by law" we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis." [Emphasis added]
At that time, Adler seemed to believe that the words "to the extent permitted by law" require the agency to do a cost-benefit analysis only when it is convenient to perform such complex analyses. Hmmm. Does anyone think that legal analysis is just a bit "loose"?
Ah, but Bob wasn't done by any means. He carried on (and on and on) at the July 20th meeting to add yet another argument, namely that cost-benefit assessments are impossible as a practical matter. No explanation as to why this was relevant, as Adler already said Congress instructed the agency to not to do such analyses and the Executive Order is inapplicable. Details, details. . . .
"One of the things that I this is intriguing . . . is where they say 'Now when you're doing a cost-benefit analysis, let's address all the deficiencies we have identified with cost-benefit analyses in the past, namely you can always calculate the costs, especially the short term high costs but measuring benefits is just extraordinarily difficult.' How do you measure the life of a little baby? Because usually what they [conclude is that] there is no benefit . . . that you can quantify from saving a baby's life."
So, apparently, it might be okay to do cost-benefit analysis (?) but it wouldn't work. Congress must not have meant us to waste our time . . . . He later challenged anyone in the room to tell him what the "quantifiable benefits" of two lost IQ points are. Too bad the EPA wasn't there. They do that regularly. Here is a quote from AOL Energy referring to this kind of economic analysis: "The economic value of the IQ points and the benefits of reducing particulate pollution was estimated using 'long-standing, peer-reviewed' practices on the effect of regulations, [EPA] officials said." Again, details, details . . . .
Adler noted that this IQ point information would be crucial to an argument on how many angels could sit on the head of a pin. Thus, Mr. Adler sneers at the value and legitimacy of a cost-benefit analysis involving children. As our apparent judge, jury and overseer, one must surmise that he thinks it's his right to make this judgment, notwithstanding an Executive Order.
Oddly, Big Bob does concede that the picture is not quite so clear. Hmmm.
"I'm not arguing that because we've got a lot of work that Congress therefore said don't do cost-benefit analysis. [Editor's Note: Bob, in fact, that IS what you argued.] That isn't all they said. They said 'You know what we want you to do, we want you to do a Regulatory Flexibility Act analysis which is looking at the cost side of the ledger which is easier to calculate. In particular, to look at the cost side of the ledger insofar as affects small businesses because those are the folks who are the canaries in the mine that we look to." Adler goes on to retract this assertion, and return to his claim that Congress DIDN'T want the CPSC to do a RFA analysis and instead just wanted the agency to implement the law. His argument here seems to be that Congress was interested in some sort of economic analysis but only a limited one.
Adler then launches into his final jab at blowing off the Order:
"I guess we do have a dispute about whether we have imposed this in an ultra-aggressive way or in an extremely thoughtful way. I think we have taken the approach in an extremely thoughtful way. But sometimes you have to do a cost-benefit of whether to do a cost-benefit and I don't think that analysis gets us very far."
So Adler wraps up with his "over my dead body" argument - he just doesn't want to do it. Take that, Obama!
Nancy Nord grimly assessed the sad spectacle we witnessed:
"This is an important issue. And cost-benefit analysis could have been done with respect to our regulations under CPSIA but wasn't. Whether that's a good idea or a bad idea, we can continue to debate. But Congress did not say not to do it - Majority did. And I think that's unfortunate and I think our rules have suffered because of that."
I will spare you the late sniping between Tenenbaum and Nord, but if you like catty repartee, it's at 1:24.
With three Dem Commissioners in charge at the CPSC, you can forget about relief from the EO. Nice try, Mr. President, but you've met your match. Tenenbaum, Adler and Moore are above the law and are on a Waxman mission that transcends our laws and the Constitution. There's not much left to hope for with this crew in charge.
Maybe the CPSC will be on the national debt chopping block. Don't hold your breath. . . .
The tension in the room at this meeting was palpable, and the usual shenanigans took place, like Ami Gadhia's claims that CPSC Staff found that manufacturers intentionally add lead to children's products (47:31). While I would normally take the scummy consumer group reps to task for their misstatements (lies?) and innuendo, in fact at this hearing, a much more important issue was "debated". [Bickered over is more like it.] Namely, whether the CPSC has to follow President Obama's Executive Order to preform cost-benefit analyses on regulations under the CPSIA. I have previously addressed this issue in blogposts on July 12, July 14, July 20 and July 21.
After the usual pointless sparring over the ability of the CPSC to do the right thing (don't worry, Bob Adler "agonized" over these difficult decisions . . . and then voted to screw industry), the meeting devolved into a series of often incoherent and inconsistent defensive rebuffs by Dems in support of their political conclusion that they can blow off the Executive Order to the extent that it threatens in any way their work implementing the CPSIA.
Of course, the idea of the Executive Order was to ensure that those rules are economically justified. Blah blah blah. The view of the Dem Commissioners is that evidence of the extreme economic impact of these rules is not relevant to the CPSIA rulemaking process, notwithstanding Mr. Obama's little note.
Chairman Tenenbaum laid down the law at 1:15 in the tape:
"I'd like to comment on the Executive Order [which says] 'Nothing in this order shall be construed to impair or otherwise affect authority granted by law to a department or agency, or the head thereof . . . . This order shall be implemented consistent with applicable law and subject to the availability of appropriations.' Congress was very clear. They wanted the lead limits at 600 then 300 then 100. We have looked at this from all angles. And I can tell you, consistent with the law, we have implemented the CPSIA. . . . Congress was very aware that we could not write regulations unless we did a Section 9 cost-benefit analysis in some of the statutes we implement. And they on purpose did not require us to do cost-benefit analysis because they realized the urgency of getting lead out of children's products. . . . And that my legal understanding. . . . And so to have this fiction be a part of this public hearing, that we are required to do cost-benefit analysis under the CPSIA under the Executive Order cannot go unanswered." [Emphasis added]
Take that, Obama! Your EO is fictional! Tenenbaum seems to be saying that because Congress permitted expedited rulemaking under the CPSIA, all regulations under CPSIA are shielded from any cost-benefit analysis mandated by the President. She pins this on the standards established under the CPSIA. Interestingly, she seems to overlook that the 100 ppm standard was subject to a rulemaking process, and the Obama order specifically addresses rulemakings. She also glosses over so many other rulemakings which are remote from the standards. Details, details. . . .
The Obama order instructs the CPSC to follow Executive Order 13563 to the extent "permitted" by law. The CPSIA does not preclude cost-benefit analysis, it only allowed the agency to skip it. The only direct reference to cost-benefit in the CPSIA is in Section 233 where cost-benefit analysis is specifically written out of the Poison Prevention Packaging Act of 1970. Cost-benefit analysis is NOT specifically written out of the CPSA in the CPSIA anywhere. The Dem Commissioners didn't address this point during the July 20th meeting.
EO 13563 in relevant part says: ". . . to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts; and equity). . . ." The President's new EO applies this verbiage to the CPSC. Tenenbaum just blows it off entirely. The President must be below Henry Waxman.
Ms. T gets pretty snippy at points. "There are people on this Commission that want to contort and use this Executive Order. I have spoken to attorneys at the White House; I know I stand on firm legal ground. And so please don't leave this meeting thinking that we are expected to do cost-benefit analysis or this Executive Order mandates that we do that. It does not!"
Tenenbaum's argument - I am judge, I am jury, don't question me.
Anne Northup notes that the stalemate in Congress is no indication that the law requires such harsh and inflexible positions by the agency:
"It's also clear that Members of Congress . . . are universally talking about, even the authors of the bill, changes that ought to be made [to the CPSIA]. The reason that Congress has not acted is that [there is disagreement over how broadly to amend the law.] They have not told us that they think we should proceed in the most aggressive fashion and in the most punishing rulemakings and to take advantage of every opportunity we have to regulate more toys rather than less, more tests rather than less, and so forth. . . . All an Executive Order does is ask us to . . . take seriously whether or not we can find alternative ways of achieving the meaning of the law without the disruption in the economy."
Continuing the debate (argument), Bob Adler had much to say as usual. As we know, Bob Adler is already on record volunteering to block cost-benefit analysis with his dead body. [See "Is that a promise, Bob?"] At the July 20th meeting, he proffered the reason why cost-benefit analysis is inapplicable here:
"My colleague asked whether there is anything in the statute that specifically exempts us from having to, from being able to do cost-benefit, and I think in terms of the precise parsing of the statute, that's correct. But let's be clear: it effectively in all major respects precludes us from doing that. When they've given us 42 deadlines to achieve in just a very short period of time, when they've specifically exempted us from having to do these incredibly time-consuming and costly Section 9 procedures, i think there's a very clear message from Congress there. Congress in effect was saying 'We've done the cost-benefit analysis. Now we want you to implement the law."
So, the reason not to obey the President - Congress couldn't have meant us to do a cost-benefit analysis because otherwise they wouldn't have given us so much darned work to do. In addition, by reducing our burden with looser Section 9 procedures to expedite the implementation process, Adler says Congress meant to say that they had already "completed" a cost-benefit analysis. Mr. Adler does not attempt to prove his point, his assertion being enough apparently. I am always impressed by the self-justifications of regulators who claim to be able to read the "mind" of an inanimate body like Congress. In law school, they taught us to follow rules of legislative interpretation. That's so Old School! Nowadays you only have to attribute a "thought" to Congress to "prove" legislative intent.
Of course, just a few days ago, Bob asserted something rather different:
"It says "to the extent permitted by law" we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis." [Emphasis added]
At that time, Adler seemed to believe that the words "to the extent permitted by law" require the agency to do a cost-benefit analysis only when it is convenient to perform such complex analyses. Hmmm. Does anyone think that legal analysis is just a bit "loose"?
Ah, but Bob wasn't done by any means. He carried on (and on and on) at the July 20th meeting to add yet another argument, namely that cost-benefit assessments are impossible as a practical matter. No explanation as to why this was relevant, as Adler already said Congress instructed the agency to not to do such analyses and the Executive Order is inapplicable. Details, details. . . .
"One of the things that I this is intriguing . . . is where they say 'Now when you're doing a cost-benefit analysis, let's address all the deficiencies we have identified with cost-benefit analyses in the past, namely you can always calculate the costs, especially the short term high costs but measuring benefits is just extraordinarily difficult.' How do you measure the life of a little baby? Because usually what they [conclude is that] there is no benefit . . . that you can quantify from saving a baby's life."
So, apparently, it might be okay to do cost-benefit analysis (?) but it wouldn't work. Congress must not have meant us to waste our time . . . . He later challenged anyone in the room to tell him what the "quantifiable benefits" of two lost IQ points are. Too bad the EPA wasn't there. They do that regularly. Here is a quote from AOL Energy referring to this kind of economic analysis: "The economic value of the IQ points and the benefits of reducing particulate pollution was estimated using 'long-standing, peer-reviewed' practices on the effect of regulations, [EPA] officials said." Again, details, details . . . .
Adler noted that this IQ point information would be crucial to an argument on how many angels could sit on the head of a pin. Thus, Mr. Adler sneers at the value and legitimacy of a cost-benefit analysis involving children. As our apparent judge, jury and overseer, one must surmise that he thinks it's his right to make this judgment, notwithstanding an Executive Order.
Oddly, Big Bob does concede that the picture is not quite so clear. Hmmm.
"I'm not arguing that because we've got a lot of work that Congress therefore said don't do cost-benefit analysis. [Editor's Note: Bob, in fact, that IS what you argued.] That isn't all they said. They said 'You know what we want you to do, we want you to do a Regulatory Flexibility Act analysis which is looking at the cost side of the ledger which is easier to calculate. In particular, to look at the cost side of the ledger insofar as affects small businesses because those are the folks who are the canaries in the mine that we look to." Adler goes on to retract this assertion, and return to his claim that Congress DIDN'T want the CPSC to do a RFA analysis and instead just wanted the agency to implement the law. His argument here seems to be that Congress was interested in some sort of economic analysis but only a limited one.
Adler then launches into his final jab at blowing off the Order:
"I guess we do have a dispute about whether we have imposed this in an ultra-aggressive way or in an extremely thoughtful way. I think we have taken the approach in an extremely thoughtful way. But sometimes you have to do a cost-benefit of whether to do a cost-benefit and I don't think that analysis gets us very far."
So Adler wraps up with his "over my dead body" argument - he just doesn't want to do it. Take that, Obama!
Nancy Nord grimly assessed the sad spectacle we witnessed:
"This is an important issue. And cost-benefit analysis could have been done with respect to our regulations under CPSIA but wasn't. Whether that's a good idea or a bad idea, we can continue to debate. But Congress did not say not to do it - Majority did. And I think that's unfortunate and I think our rules have suffered because of that."
I will spare you the late sniping between Tenenbaum and Nord, but if you like catty repartee, it's at 1:24.
With three Dem Commissioners in charge at the CPSC, you can forget about relief from the EO. Nice try, Mr. President, but you've met your match. Tenenbaum, Adler and Moore are above the law and are on a Waxman mission that transcends our laws and the Constitution. There's not much left to hope for with this crew in charge.
Maybe the CPSC will be on the national debt chopping block. Don't hold your breath. . . .
Monday, July 25, 2011
CPSIA - Personal Injury Lawyers Say CPSIA Database is a "Success" - Any Questions?
News Flash: Personal Injury Law Firm Beasley Allen P.A. announced the revelation that the CPSIA Database is a success but is still under attack. Hmmm.
For those of you unfamiliar with this authoritative news source, Beasley Allen is a Montgomery, Alabama tort law firm that boasts on its website of a "$150,000,000 verdict in a personal injury case". No doubt they are impartial in their views on the database. Their web address is http://www.southerninjurylawyer.com/.
To bolster their case in favor of the database, they trot out the informative results of Henry Waxman's "analysis" of the database released on July 7th. [Mr. Waxman did not make his data available so his analysis has gone unchallenged. The only way to review it is to recreate it. Take it for what it's worth.] Beasley Allen also cites the musings of Don Mays at Consumer Reports (he is the one who cautioned against his fourth grade daughter playing a brass instrument - don't worry, she plays the violin!), completing the rogues gallery.
Among the asserted benefits of the database, aside from website visits by other personal injury lawyers trolling for tort cases to file, Beasley Allen contends that "[s]ome manufacturers had even found the database helpful to them in identifying potential hazards in their products and addressing them as needed." Aha.
There is an evil side to this controversy, naturally: "Still, a powerful anti-consumer lobby wants the database shut down, and it is using politics to achieve that. While the database costs the CPSC $3 million to maintain – a bargain price considering its usefulness and its power to help make consumer products safer – it is on the chopping block again in current budget and debt-ceiling negotiations." [Emphasis added]
Oh, yes, the well-known and powerful "ANTI-CONSUMER LOBBY"! Have you ever met someone who was not a consumer? Are the people who never consume anything or don't have relatives or family members? Or are they people who don't want consumers to buy their products? Oh them!
Or perhaps they are people on who oppose personal injury lawyers. Just a thought. . . .
The Southern Injury Lawyers conclude: "Opponents of the new database said that the database could be easily abused and filled with false information. However, analyses have found no signs of malicious activity on the database and Consumer Reports says it has not seen any evidence that the database has been harmful to businesses."
So says the lawyers with the $150 million dollar tort lawsuit. Seems definitive to me. What could the problem possibly be???
For those of you unfamiliar with this authoritative news source, Beasley Allen is a Montgomery, Alabama tort law firm that boasts on its website of a "$150,000,000 verdict in a personal injury case". No doubt they are impartial in their views on the database. Their web address is http://www.southerninjurylawyer.com/.
To bolster their case in favor of the database, they trot out the informative results of Henry Waxman's "analysis" of the database released on July 7th. [Mr. Waxman did not make his data available so his analysis has gone unchallenged. The only way to review it is to recreate it. Take it for what it's worth.] Beasley Allen also cites the musings of Don Mays at Consumer Reports (he is the one who cautioned against his fourth grade daughter playing a brass instrument - don't worry, she plays the violin!), completing the rogues gallery.
Among the asserted benefits of the database, aside from website visits by other personal injury lawyers trolling for tort cases to file, Beasley Allen contends that "[s]ome manufacturers had even found the database helpful to them in identifying potential hazards in their products and addressing them as needed." Aha.
There is an evil side to this controversy, naturally: "Still, a powerful anti-consumer lobby wants the database shut down, and it is using politics to achieve that. While the database costs the CPSC $3 million to maintain – a bargain price considering its usefulness and its power to help make consumer products safer – it is on the chopping block again in current budget and debt-ceiling negotiations." [Emphasis added]
Oh, yes, the well-known and powerful "ANTI-CONSUMER LOBBY"! Have you ever met someone who was not a consumer? Are the people who never consume anything or don't have relatives or family members? Or are they people who don't want consumers to buy their products? Oh them!
Or perhaps they are people on who oppose personal injury lawyers. Just a thought. . . .
The Southern Injury Lawyers conclude: "Opponents of the new database said that the database could be easily abused and filled with false information. However, analyses have found no signs of malicious activity on the database and Consumer Reports says it has not seen any evidence that the database has been harmful to businesses."
So says the lawyers with the $150 million dollar tort lawsuit. Seems definitive to me. What could the problem possibly be???
Sunday, July 24, 2011
CPSIA - Not to State the Obvious, but the Debt Ceiling Fiasco Imperils ECADA
Among the many reasons for despondency at this time of national gridlock is that the Washington national debt standoff likely signifies the demise of ECADA (the pending CPSIA Amendment). A week from this Friday is the last work day before Congress' all-important summer recess. [As you know, Congress needs its R&R.] The CPSIA will remain unamended unless a bill moves through Congress by then.
You don't need to be a seasoned Washington vet to see that Congress ground to a halt while the national debt food fight is going on. With the likely pressure of world market volatility, U.S. credit rating downgrades and other homegrown massive financial calamities, and you have a recipe for Congress' attention being somewhere besides the CPSIA. With the President and his minions playing the market manipulation card (Daley and Geithner were dispatched to the Sunday talk shows to spread their gloomy prediction of market cracks on Monday), the ability of Congress to focus on its actual work is just about nil now. Mine certainly is, too.
It will be the ultimate irony if the debate over the size of our government is what wins day for an engorged CPSC focusing on fake health crises as directed by the CPSIA. Victory to Rachel Weintraub, Henry Waxman and Bob Adler all because our national leaders can't decide how much to spend beyond our national means? Three years of fighting may end up on the rocks, simply because of bad timing.
If ECADA does not become law before August 14, the 100 ppm lead standard will be retroactive, the THIRD such scr*wing imposed on us by the soulless bureaucrats at the CPSC since August 2008. Oh yes, I know, they have no choice. Woe is me, they feel so badly about it, but what can you do???
Tell that to our employees, our suppliers, our dealers and the millions of families, schools and teachers who depend on our company and its products. Hey Dems, why not finish the job with a big tax increase, too?!
Stay tuned.
You don't need to be a seasoned Washington vet to see that Congress ground to a halt while the national debt food fight is going on. With the likely pressure of world market volatility, U.S. credit rating downgrades and other homegrown massive financial calamities, and you have a recipe for Congress' attention being somewhere besides the CPSIA. With the President and his minions playing the market manipulation card (Daley and Geithner were dispatched to the Sunday talk shows to spread their gloomy prediction of market cracks on Monday), the ability of Congress to focus on its actual work is just about nil now. Mine certainly is, too.
It will be the ultimate irony if the debate over the size of our government is what wins day for an engorged CPSC focusing on fake health crises as directed by the CPSIA. Victory to Rachel Weintraub, Henry Waxman and Bob Adler all because our national leaders can't decide how much to spend beyond our national means? Three years of fighting may end up on the rocks, simply because of bad timing.
If ECADA does not become law before August 14, the 100 ppm lead standard will be retroactive, the THIRD such scr*wing imposed on us by the soulless bureaucrats at the CPSC since August 2008. Oh yes, I know, they have no choice. Woe is me, they feel so badly about it, but what can you do???
Tell that to our employees, our suppliers, our dealers and the millions of families, schools and teachers who depend on our company and its products. Hey Dems, why not finish the job with a big tax increase, too?!
Stay tuned.
CPSIA - Rachel Weintraub's Distortions Justify Dem Refusal to Amend the CPSIA
Democrat tool Rachel Weintraub is never at a loss for words on the topic of CPSIA and true to form, she has today published more misstatements, distortions and innuendo to bolster Dem efforts to block amendment of the CPSIA. In the space below, I rebut Ms. Weintraub's "view of the world".
It is worth noting that a much more erudite explanation of the pending CPSIA Amendment (ECADA) was published side-by-side with Weintraub's smear campaign, namely "Fix bill would make products safer, not less so" by Eric Stone. For those who don't know Eric, his credentials include more than 33 years at the CPSC, including as Legal Director in the Office of Compliance and as Acting Director of the Recalls and Compliance Division. He faced the real questions of safety at the agency and made the judgments subject to the scrutiny of the public, Congress and the legal system.
As Eric Stone notes, "In crafting its new safety bill, Congress proved that moral outrage and good intentions do not necessarily result in good law." Amen.
My responses to Ms. Weintraub are in blue and red.
Don't set safety clock backwards for kids products
By Rachel Weintraub
Florida Sun-Sentinel
July 24, 2011
The House Energy and Commerce Committee will soon vote on HR 1939, the "Enhancing CPSC Authority and Discretion Act of 2011," or ECADA, a bill that guts the Consumer Product Safety Improvement Act, a vital law that keeps unsafe toys and other dangerous products off the shelves.
RW - It is a typical ploy of the Lefties opposing amendment of the CPSIA to frame everything in terms of toys. Toys are but one category affected by this awful law, but by using it as the CPSIA poster child, Weintraub puts you where she wants you - afraid of ECADA's potential effects on innocents by "evil toymakers". Aside from the fact that "evil toymakers" are no more or less prevalent in our society than any other category of "evil" something-or-anothers, Weintraub's characterization greatly distorts what CPSIA really is. CPSIA applies to ANYTHING that is intended to be sold to children. The list is well-known but, as a reminder, it includes t-shirts and shoes, carpets, pens, ATVs, bikes, books, science kits, DVDs and CDs, furniture, brass musical instruments, rhinestones and so on. Focusing on toys is just to get you going.
Congress passed CPSIA by an overwhelming, bipartisan vote in 2008, and President Bush signed the bill into law that year. After a year of careful deliberations, CPSIA's passage followed a record number of recalls of children's products that injured and killed children. The measure gave new life to the U.S. Consumer Product Safety Commission, a weakened federal oversight agency that had failed in its meager efforts to protect the public's safety. The law represents a giant step forward in protecting America's children.
RW - Another defensive ploy of the CPSIA defenders is the "infallibility of Congress" argument, namely that everyone voted for it so why is anyone against it now. This argument only makes sense if you don't think about it too much. For one thing, the CPSIA was passed in anger. Have you ever said or done anything in anger that you later regretted? That point aside, it is important to consider that this law was devised by a Dem-controlled Congress dominated by the strong-willed Left Winger Nancy Pelosi of San Francisco. Pelosi takes no prisoners and tolerates no dissent among her Dem followers. The law was dictated by Dems to the Republicans, as insiders acknowledge, and was passed just ahead of the Obama wave in the Presidential election cycle. The votes of Republicans for such an extreme law cannot properly be deemed "voluntary" in any conventional sense. Everyone knew this law was a great chess move by the Dems, forcing Republicans to go along, and even President Bush got into the act by agreeing to sign to protect his party. Weintraub's distorted rewrite of history is a good illustration of the rule that history is written by the victors. Consider the source . . . .
CPSIA currently requires that children's products be tested for safety before they arrive on store shelves — something that many consumers already assumed was happening.
RW - Another oft-repeated consumer group assertion, never proven. It has always struck me that this argument is just transference. I have no doubt that folks like Weintraub always wanted this, and simply assume that everyone shares their "common sense" desires and fears.
It sets limits on lead in children's products, sets infant product and toy safety standards, and bans certain phthalates, which are chemicals linked to a variety of health risks. The law also creates a much-needed public database where consumers can easily report and research product safety problems.
We have already seen the successful results of CPSIA. Most recently, on June 28, 2011, new crib standards went into effect, which means that cribs sold in stores must meet the most protective safety standards in the world. This will give parents and caregivers the long-overdue peace of mind that when they purchase a new crib, it will be a truly safe place for their baby.
Some small toy manufacturers have raised concerns about the costs of testing their products to the new safety standards. These concerns, and narrowly tailored ways to reduce the costs for very small children's product manufacturers, are useful to discuss.
RW - The nauseating cynicism of this remark cannot go unaddressed. Ms. Weintraub argued for two years that the agency "needed time" to implement the law and to work out the kinks. At that time, she and the other Dems argued that there was "nothing wrong" with the CPSIA that the CPSC couldn't fix in its implementation and that consideration of legislative fixes was not merited until that process was complete. Three years later we are still subject to this on-going implementation . . . that is, those of us who haven't gone belly up. Weintraub expressed little interest in "discussing" these issues way back then.
Later, Ms. Weintraub tried to justify Henry Waxman's lame-o effort at a cursory amendment of the CPSIA that offers negligible relief. Here is an excerpt from her House testimony dated April 28, 2010 (15 months ago) on this topic:
"Special provisions for small businesses includes allowing certain businesses to be exempt from third party testing when the Commission finds that reasonable testing methods assure compliance with relevant consumer product safety standards. We believe, however, that the term "small batch manufacturer" is defined too broadly. We commend the fact that the language does not allow small batch manufacturers to obtain exceptions for durable infant or toddler products or lead paint, cribs, pacifiers, small parts, children’s metal jewelry, baby bouncers, walkers and jumpers. Because of the fatal nature of the defects in many of these types of products, as demonstrated by recalls in the past, all manufacturers should be required to meet the same safety and testing requirements. We could not accept a broadening of either the definition of small batch manufacturer or a limitation of those products not covered by this provision." [Emphasis added]
The CPSC never did identify any such "reasonable testing methods" even though the "hunt" has gone on for three years now. Even Ms. Weintraub must blush when she tells you that such issues deserve "discussion".
Unfortunately, instead of fixing concerns of the truly small manufacturers, HR 1939 goes too far and rolls back important consumer protections created by CPSIA in a number of ways.
HR 1939 reduces safety testing for children's products by undermining independent safety testing requirements for most children's products. This would place us in the same dangerous situation we were in 2007 and 2008, when millions of beloved toys were recalled because of excessive lead paint, strong magnets that when swallowed in multiples could rip apart a child's intestines and chemicals that turned into the date-rape drug when swallowed.
RW - The issue in 2007 and 2008 was NOT that the law did not protect consumers. In fact, if anything, the issue was that the agency did not (adequately) protect consumers. The bad behavior that prompted the CPSIA was clearly illegal, as the agency could act to enforce if it so chose. After all, they issued hundreds of recalls under prior law. Please pause and give that a little thought. Weintraub's argument is pure urban legend, but helpful urban legend for the tall tale she is trying to sell.
It is also worth noting that Gib Mullan, the then head of Compliance at the CPSC admitted during the second session question-and-answer session at the CPSC Tracking Labels hearing on May 12, 2009 that the agency had never seen the strong magnet hazard evidenced by Magnetix previously and at first mistook it as a "small parts" issue. No law can prevent the unknown and the not previously experienced from happening. That is a safety fantasy. In addition, the "date-rape drug" incident involved an unapproved change in materials by a factory which no testing regime would have caught (CPSIA or not). The safety issue was completely unprecedented and the product was immediately recalled without argument by a very safety conscious toymaker. Only in Weintraub's self-serving world is this incident useful . . . to terrorize. Under most circumstances, it should be held up as a great public-private partnership and a sign that there are good people in the industry.
Under this bill, virtually all toys would no longer have to be tested for safety before they come into our homes — these products would be safety-tested only if and when CPSC undertook a laborious and complicated series of steps, including a cost-benefit analysis that emphasizes testing costs over health and safety benefits.
RW - Weintraub here spurns the President's Executive Order which MANDATES cost-benefit analysis by the CPSC. This arch position conforms to the surprising world view of Bob "Over My Dead Body" Adler and Inez Tenenbaum and certainly suits their Dem agenda. It is, unfortunately, an affront to the President's order. It is also economic nonsense. The OPPOSITE is correct, at least according to the Nobel Prize committee which awarded the 1991 Economics Prize to Ronald Coase for his work proving the need for regulatory cost-benefit analysis. Mr. Coase proved that ignoring cost-benefit analysis exposes all of us to the risk of being impoverished by government regulation. Thanks, Rachel, for the great idea!
It is unclear if CPSC would ever have the resources, time or information to complete what this bill demands of them, and it is therefore unclear if toys would ever be subject to independent testing. Independent testing not only prevents unnecessary injuries to children, but it can also prevent costly recalls for the manufacturer — a benefit to consumers as well as manufacturers.
RW - Here Rachel spins an even bigger tall tale, that preserving mandatory testing is in manufacturers' best interests. Apparently she is the only one who knows this. The people who actually work for companies affected by this rule have been howling for three years-plus. Here Rachel sets us all straight - the problem is we're wrong and she's right. Oh, now I see it! Her reasoning relies on the urban legend that in the absence of mandated testing, testing will cease. That's nonsense and is not supported by data. We have been testing since I got to Learning Resources, more than 20 years ago. So, if mandated testing is necessary to force testing, why were we testing way back then? Simple - we wanted to know we were complying with the standards. Standards drive testing, and enforcement can make testing prevalent, even universal. Mandated testing just raises costs, unfortunately. I have previously addressed this issue in a blogpost.
HR 1939 increases the amount of lead that would be permitted in children's products. CPSIA currently requires that all parts of children's products comply with a single, unambiguous standard for lead content. The proposed legislation would replace that clarity with a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts and other factors. As a result, parents and other consumers will no longer have the confidence that all parts of all children's products are safe for their children. Lead is a known toxin where even small amounts can be harmful by decreasing a child's IQ. There is no reason why there shouldn't be a single, strong standard that simply keeps lead out of children's products.
RW - No reason, huh? Space does not permit me to reduce this absurd statement to rubble. I have been writing about the many common sense reasons to modify standards for three years now. ECADA as a matter of fact does very little to change standards except to codify some sensible concessions already made by the CPSC in stays applying to metals. If you are terrorized by the prospect of bicycle licking or the horrors of playing brass instruments in the school band, ECADA's changes will no doubt keep you up at night. Your fears are nothing that our proposed National Xanax Fund can't address.
The idea that different standards for different products aimed at different ages of children are somehow "defective" flies in the face not only of common sense but also the regulatory tradition at the CPSC. Before whackjobs began to dominate the safety discussion, and before the agency had its brain removed by Congress, the regulators were able to see the sense of crafting different rules for two year olds, six year olds and twelve year olds. And nobody thought the same rules should apply to rhinestones, pens, ATVs and books. If you are an experienced parent, you might know something about the need to modify rules for different ages of children. I have tried to regulate teenagers with the same rules as toddlers and received some "pushback". And when I try to keep toddlers safe by applying sensible rules designed for teenagers, that doesn't seem to work either.
HR 1939 undermines the effectiveness of the new crib safety standard. The bill would carve out a large exception to the bipartisan standard for cribs in child-care facilities. Under the bill, some child-care facilities would not have to replace existing fixed-side cribs even if the cribs violate the most basic crib safety standards — slats too far apart, non-compliant corner posts and failing mattress supports. Parents should be assured that the cribs their babies sleep in meet the strongest crib standards — both at home and in child-care facilities. The new, robust crib standards just went into effect for new cribs consumers can buy in stores and will apply to hotels, motels and child-care facilities in 18 months. Carving out child-care center cribs from this important protection moves the safety bar backwards.
RW - I have tried to avoid biting on the bait of the consumer group attacks on ECADA for the innocuous and sensible crib rule changes. It is in Ms. Weintraub's interest to make you feel that there is some sort of evil cabal dominating the Republican Party which somehow induces them to play roulette with your babies' lives. Anyhow, it's all a fiction but a helpful fiction to Ms. Weintraub's purpose, namely to subvert efforts to amend the CPSIA. Here is the "deadly" language that Ms. Weintraub protests so intensely:
"(B) SPECIAL RULE FOR FIXED-SIDE CRIBS SUBJECT TO CERTAIN STATE OR LOCAL LAW REQUIREMENTS- Paragraph (1) shall not apply to a fixed-side crib that has not been recalled and that is offered or provided for use in a licensed child care facility (other than a family child care home) that is subject to the following requirements under the law of a State or a political subdivision of a State: (i) The facility may not allow a child to remain in a crib for any significant amount of time while the child is awake, (ii) The facility may not place in a crib a child over the age of 16 months, (iii) An adult must be present whenever a child is in a crib."
Ms. Weintraub fails to deliver evidence that this exceedingly modest change could harm children based on actual injury data. She just wants you to push the panic button. ECADA only permits certain legacy FIXED SIDE cribs to remain in service. I thought fixed side cribs were the "answer". Not if their inclusion in ECADA might help get it passed, apparently.
HR 1939 allows the use of dangerous phthalates, which are hormone-disrupting chemicals that have been added to child-care articles like teething rings. This proposed bill would undermine CPSIA's landmark protections against phthalates by allowing large, undefined exemptions to both the prohibition and interim bans on phthalates in toys and child-care articles.
RW - Rachel again ventures into Whopperville to scare you about phthalates. Let's start by deciding how "dangerous" phthalates are. Ms. Weintraub reasons that if (the infallible) Congress banned them, the chemicals are ergo dangerous. The law, in fact, only bans three chemicals permanently and has directed the agency to investigate another three. On two previous occasions the agency has done just that . . . and concluded that phthalates don't present a risk to children. Ms. Weintraub omits to let you know that this provision was added to CPSIA at the last moment, without hearings or investigation, by California Senator Diane Feinstein of San Francisco and mentor to Nancy Pelosi. Aha. The science on phthalates is hardly an open-and-shut case - just watch 60 Minutes for perspective.
Ultimately, the greatest disservice to truth performed by Ms. Weintraub here is to distort what measly relief is being offered. ECADA only allows us to stop testing components that cannot be touched or licked by kids. That's it. The actual words: "ACCESSIBLE COMPONENT PARTS- Effective on the date of enactment of this Act, subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3) shall apply to any accessible, plasticized component part of a children’s toy or child care article."
HR 1939 undermines the new CSPC product safety database. This new database allows public access to consumer complaints about product safety problems while giving the industry ample opportunity to view and comment upon such safety-related reports before they are posted. The database, available at http://www.saferproducts.gov, just went live in March. It will help consumers research products, help CPSC identify emerging hazard trends and help prevent unnecessary deaths and injuries. HR 1939 would place onerous hurdles on those seeking to report a safety problem, thereby discouraging the sharing of potentially lifesaving information with other consumers, companies and the government.
RW - Oy vey. There has been so much written on this subject that I can't bear to write it again. Ms. Weintraub intentionally ignores any point inconsistent with her political agenda. I will leave it at that, but feel free to pour over my prior writings on the database (tagged on the side of the blog) for further details.
Consumers demanded and received strong product safety reform from Congress in 2008. Undermining these important product safety improvements puts all of our children at risk. HR 1939 will not protect our children from product safety hazards. Rather, HR 1939 rolls the safety clock backwards and creates huge and unnecessary loopholes in our nation's safety net.
RW - One last point, to quote Eric Stone: "ECADA gives CPSC broader subpoena and investigational authority. Not surprisingly, opponents do not mention such provisions since they do not fit the 'Republican-industry conspiracy' narrative." I love the "Republican-industry conspiracy narrative" part. You can see how that might work well for Rachel.
Rachel Weintraub is director of product safety and senior counsel at the Consumer Federation of America in Washington, D.C.
It is worth noting that a much more erudite explanation of the pending CPSIA Amendment (ECADA) was published side-by-side with Weintraub's smear campaign, namely "Fix bill would make products safer, not less so" by Eric Stone. For those who don't know Eric, his credentials include more than 33 years at the CPSC, including as Legal Director in the Office of Compliance and as Acting Director of the Recalls and Compliance Division. He faced the real questions of safety at the agency and made the judgments subject to the scrutiny of the public, Congress and the legal system.
As Eric Stone notes, "In crafting its new safety bill, Congress proved that moral outrage and good intentions do not necessarily result in good law." Amen.
My responses to Ms. Weintraub are in blue and red.
Don't set safety clock backwards for kids products
By Rachel Weintraub
Florida Sun-Sentinel
July 24, 2011
The House Energy and Commerce Committee will soon vote on HR 1939, the "Enhancing CPSC Authority and Discretion Act of 2011," or ECADA, a bill that guts the Consumer Product Safety Improvement Act, a vital law that keeps unsafe toys and other dangerous products off the shelves.
RW - It is a typical ploy of the Lefties opposing amendment of the CPSIA to frame everything in terms of toys. Toys are but one category affected by this awful law, but by using it as the CPSIA poster child, Weintraub puts you where she wants you - afraid of ECADA's potential effects on innocents by "evil toymakers". Aside from the fact that "evil toymakers" are no more or less prevalent in our society than any other category of "evil" something-or-anothers, Weintraub's characterization greatly distorts what CPSIA really is. CPSIA applies to ANYTHING that is intended to be sold to children. The list is well-known but, as a reminder, it includes t-shirts and shoes, carpets, pens, ATVs, bikes, books, science kits, DVDs and CDs, furniture, brass musical instruments, rhinestones and so on. Focusing on toys is just to get you going.
Congress passed CPSIA by an overwhelming, bipartisan vote in 2008, and President Bush signed the bill into law that year. After a year of careful deliberations, CPSIA's passage followed a record number of recalls of children's products that injured and killed children. The measure gave new life to the U.S. Consumer Product Safety Commission, a weakened federal oversight agency that had failed in its meager efforts to protect the public's safety. The law represents a giant step forward in protecting America's children.
RW - Another defensive ploy of the CPSIA defenders is the "infallibility of Congress" argument, namely that everyone voted for it so why is anyone against it now. This argument only makes sense if you don't think about it too much. For one thing, the CPSIA was passed in anger. Have you ever said or done anything in anger that you later regretted? That point aside, it is important to consider that this law was devised by a Dem-controlled Congress dominated by the strong-willed Left Winger Nancy Pelosi of San Francisco. Pelosi takes no prisoners and tolerates no dissent among her Dem followers. The law was dictated by Dems to the Republicans, as insiders acknowledge, and was passed just ahead of the Obama wave in the Presidential election cycle. The votes of Republicans for such an extreme law cannot properly be deemed "voluntary" in any conventional sense. Everyone knew this law was a great chess move by the Dems, forcing Republicans to go along, and even President Bush got into the act by agreeing to sign to protect his party. Weintraub's distorted rewrite of history is a good illustration of the rule that history is written by the victors. Consider the source . . . .
CPSIA currently requires that children's products be tested for safety before they arrive on store shelves — something that many consumers already assumed was happening.
RW - Another oft-repeated consumer group assertion, never proven. It has always struck me that this argument is just transference. I have no doubt that folks like Weintraub always wanted this, and simply assume that everyone shares their "common sense" desires and fears.
It sets limits on lead in children's products, sets infant product and toy safety standards, and bans certain phthalates, which are chemicals linked to a variety of health risks. The law also creates a much-needed public database where consumers can easily report and research product safety problems.
We have already seen the successful results of CPSIA. Most recently, on June 28, 2011, new crib standards went into effect, which means that cribs sold in stores must meet the most protective safety standards in the world. This will give parents and caregivers the long-overdue peace of mind that when they purchase a new crib, it will be a truly safe place for their baby.
Some small toy manufacturers have raised concerns about the costs of testing their products to the new safety standards. These concerns, and narrowly tailored ways to reduce the costs for very small children's product manufacturers, are useful to discuss.
RW - The nauseating cynicism of this remark cannot go unaddressed. Ms. Weintraub argued for two years that the agency "needed time" to implement the law and to work out the kinks. At that time, she and the other Dems argued that there was "nothing wrong" with the CPSIA that the CPSC couldn't fix in its implementation and that consideration of legislative fixes was not merited until that process was complete. Three years later we are still subject to this on-going implementation . . . that is, those of us who haven't gone belly up. Weintraub expressed little interest in "discussing" these issues way back then.
Later, Ms. Weintraub tried to justify Henry Waxman's lame-o effort at a cursory amendment of the CPSIA that offers negligible relief. Here is an excerpt from her House testimony dated April 28, 2010 (15 months ago) on this topic:
"Special provisions for small businesses includes allowing certain businesses to be exempt from third party testing when the Commission finds that reasonable testing methods assure compliance with relevant consumer product safety standards. We believe, however, that the term "small batch manufacturer" is defined too broadly. We commend the fact that the language does not allow small batch manufacturers to obtain exceptions for durable infant or toddler products or lead paint, cribs, pacifiers, small parts, children’s metal jewelry, baby bouncers, walkers and jumpers. Because of the fatal nature of the defects in many of these types of products, as demonstrated by recalls in the past, all manufacturers should be required to meet the same safety and testing requirements. We could not accept a broadening of either the definition of small batch manufacturer or a limitation of those products not covered by this provision." [Emphasis added]
The CPSC never did identify any such "reasonable testing methods" even though the "hunt" has gone on for three years now. Even Ms. Weintraub must blush when she tells you that such issues deserve "discussion".
Unfortunately, instead of fixing concerns of the truly small manufacturers, HR 1939 goes too far and rolls back important consumer protections created by CPSIA in a number of ways.
HR 1939 reduces safety testing for children's products by undermining independent safety testing requirements for most children's products. This would place us in the same dangerous situation we were in 2007 and 2008, when millions of beloved toys were recalled because of excessive lead paint, strong magnets that when swallowed in multiples could rip apart a child's intestines and chemicals that turned into the date-rape drug when swallowed.
RW - The issue in 2007 and 2008 was NOT that the law did not protect consumers. In fact, if anything, the issue was that the agency did not (adequately) protect consumers. The bad behavior that prompted the CPSIA was clearly illegal, as the agency could act to enforce if it so chose. After all, they issued hundreds of recalls under prior law. Please pause and give that a little thought. Weintraub's argument is pure urban legend, but helpful urban legend for the tall tale she is trying to sell.
It is also worth noting that Gib Mullan, the then head of Compliance at the CPSC admitted during the second session question-and-answer session at the CPSC Tracking Labels hearing on May 12, 2009 that the agency had never seen the strong magnet hazard evidenced by Magnetix previously and at first mistook it as a "small parts" issue. No law can prevent the unknown and the not previously experienced from happening. That is a safety fantasy. In addition, the "date-rape drug" incident involved an unapproved change in materials by a factory which no testing regime would have caught (CPSIA or not). The safety issue was completely unprecedented and the product was immediately recalled without argument by a very safety conscious toymaker. Only in Weintraub's self-serving world is this incident useful . . . to terrorize. Under most circumstances, it should be held up as a great public-private partnership and a sign that there are good people in the industry.
Under this bill, virtually all toys would no longer have to be tested for safety before they come into our homes — these products would be safety-tested only if and when CPSC undertook a laborious and complicated series of steps, including a cost-benefit analysis that emphasizes testing costs over health and safety benefits.
RW - Weintraub here spurns the President's Executive Order which MANDATES cost-benefit analysis by the CPSC. This arch position conforms to the surprising world view of Bob "Over My Dead Body" Adler and Inez Tenenbaum and certainly suits their Dem agenda. It is, unfortunately, an affront to the President's order. It is also economic nonsense. The OPPOSITE is correct, at least according to the Nobel Prize committee which awarded the 1991 Economics Prize to Ronald Coase for his work proving the need for regulatory cost-benefit analysis. Mr. Coase proved that ignoring cost-benefit analysis exposes all of us to the risk of being impoverished by government regulation. Thanks, Rachel, for the great idea!
It is unclear if CPSC would ever have the resources, time or information to complete what this bill demands of them, and it is therefore unclear if toys would ever be subject to independent testing. Independent testing not only prevents unnecessary injuries to children, but it can also prevent costly recalls for the manufacturer — a benefit to consumers as well as manufacturers.
RW - Here Rachel spins an even bigger tall tale, that preserving mandatory testing is in manufacturers' best interests. Apparently she is the only one who knows this. The people who actually work for companies affected by this rule have been howling for three years-plus. Here Rachel sets us all straight - the problem is we're wrong and she's right. Oh, now I see it! Her reasoning relies on the urban legend that in the absence of mandated testing, testing will cease. That's nonsense and is not supported by data. We have been testing since I got to Learning Resources, more than 20 years ago. So, if mandated testing is necessary to force testing, why were we testing way back then? Simple - we wanted to know we were complying with the standards. Standards drive testing, and enforcement can make testing prevalent, even universal. Mandated testing just raises costs, unfortunately. I have previously addressed this issue in a blogpost.
HR 1939 increases the amount of lead that would be permitted in children's products. CPSIA currently requires that all parts of children's products comply with a single, unambiguous standard for lead content. The proposed legislation would replace that clarity with a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts and other factors. As a result, parents and other consumers will no longer have the confidence that all parts of all children's products are safe for their children. Lead is a known toxin where even small amounts can be harmful by decreasing a child's IQ. There is no reason why there shouldn't be a single, strong standard that simply keeps lead out of children's products.
RW - No reason, huh? Space does not permit me to reduce this absurd statement to rubble. I have been writing about the many common sense reasons to modify standards for three years now. ECADA as a matter of fact does very little to change standards except to codify some sensible concessions already made by the CPSC in stays applying to metals. If you are terrorized by the prospect of bicycle licking or the horrors of playing brass instruments in the school band, ECADA's changes will no doubt keep you up at night. Your fears are nothing that our proposed National Xanax Fund can't address.
The idea that different standards for different products aimed at different ages of children are somehow "defective" flies in the face not only of common sense but also the regulatory tradition at the CPSC. Before whackjobs began to dominate the safety discussion, and before the agency had its brain removed by Congress, the regulators were able to see the sense of crafting different rules for two year olds, six year olds and twelve year olds. And nobody thought the same rules should apply to rhinestones, pens, ATVs and books. If you are an experienced parent, you might know something about the need to modify rules for different ages of children. I have tried to regulate teenagers with the same rules as toddlers and received some "pushback". And when I try to keep toddlers safe by applying sensible rules designed for teenagers, that doesn't seem to work either.
HR 1939 undermines the effectiveness of the new crib safety standard. The bill would carve out a large exception to the bipartisan standard for cribs in child-care facilities. Under the bill, some child-care facilities would not have to replace existing fixed-side cribs even if the cribs violate the most basic crib safety standards — slats too far apart, non-compliant corner posts and failing mattress supports. Parents should be assured that the cribs their babies sleep in meet the strongest crib standards — both at home and in child-care facilities. The new, robust crib standards just went into effect for new cribs consumers can buy in stores and will apply to hotels, motels and child-care facilities in 18 months. Carving out child-care center cribs from this important protection moves the safety bar backwards.
RW - I have tried to avoid biting on the bait of the consumer group attacks on ECADA for the innocuous and sensible crib rule changes. It is in Ms. Weintraub's interest to make you feel that there is some sort of evil cabal dominating the Republican Party which somehow induces them to play roulette with your babies' lives. Anyhow, it's all a fiction but a helpful fiction to Ms. Weintraub's purpose, namely to subvert efforts to amend the CPSIA. Here is the "deadly" language that Ms. Weintraub protests so intensely:
"(B) SPECIAL RULE FOR FIXED-SIDE CRIBS SUBJECT TO CERTAIN STATE OR LOCAL LAW REQUIREMENTS- Paragraph (1) shall not apply to a fixed-side crib that has not been recalled and that is offered or provided for use in a licensed child care facility (other than a family child care home) that is subject to the following requirements under the law of a State or a political subdivision of a State: (i) The facility may not allow a child to remain in a crib for any significant amount of time while the child is awake, (ii) The facility may not place in a crib a child over the age of 16 months, (iii) An adult must be present whenever a child is in a crib."
Ms. Weintraub fails to deliver evidence that this exceedingly modest change could harm children based on actual injury data. She just wants you to push the panic button. ECADA only permits certain legacy FIXED SIDE cribs to remain in service. I thought fixed side cribs were the "answer". Not if their inclusion in ECADA might help get it passed, apparently.
HR 1939 allows the use of dangerous phthalates, which are hormone-disrupting chemicals that have been added to child-care articles like teething rings. This proposed bill would undermine CPSIA's landmark protections against phthalates by allowing large, undefined exemptions to both the prohibition and interim bans on phthalates in toys and child-care articles.
RW - Rachel again ventures into Whopperville to scare you about phthalates. Let's start by deciding how "dangerous" phthalates are. Ms. Weintraub reasons that if (the infallible) Congress banned them, the chemicals are ergo dangerous. The law, in fact, only bans three chemicals permanently and has directed the agency to investigate another three. On two previous occasions the agency has done just that . . . and concluded that phthalates don't present a risk to children. Ms. Weintraub omits to let you know that this provision was added to CPSIA at the last moment, without hearings or investigation, by California Senator Diane Feinstein of San Francisco and mentor to Nancy Pelosi. Aha. The science on phthalates is hardly an open-and-shut case - just watch 60 Minutes for perspective.
Ultimately, the greatest disservice to truth performed by Ms. Weintraub here is to distort what measly relief is being offered. ECADA only allows us to stop testing components that cannot be touched or licked by kids. That's it. The actual words: "ACCESSIBLE COMPONENT PARTS- Effective on the date of enactment of this Act, subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3) shall apply to any accessible, plasticized component part of a children’s toy or child care article."
HR 1939 undermines the new CSPC product safety database. This new database allows public access to consumer complaints about product safety problems while giving the industry ample opportunity to view and comment upon such safety-related reports before they are posted. The database, available at http://www.saferproducts.gov, just went live in March. It will help consumers research products, help CPSC identify emerging hazard trends and help prevent unnecessary deaths and injuries. HR 1939 would place onerous hurdles on those seeking to report a safety problem, thereby discouraging the sharing of potentially lifesaving information with other consumers, companies and the government.
RW - Oy vey. There has been so much written on this subject that I can't bear to write it again. Ms. Weintraub intentionally ignores any point inconsistent with her political agenda. I will leave it at that, but feel free to pour over my prior writings on the database (tagged on the side of the blog) for further details.
Consumers demanded and received strong product safety reform from Congress in 2008. Undermining these important product safety improvements puts all of our children at risk. HR 1939 will not protect our children from product safety hazards. Rather, HR 1939 rolls the safety clock backwards and creates huge and unnecessary loopholes in our nation's safety net.
RW - One last point, to quote Eric Stone: "ECADA gives CPSC broader subpoena and investigational authority. Not surprisingly, opponents do not mention such provisions since they do not fit the 'Republican-industry conspiracy' narrative." I love the "Republican-industry conspiracy narrative" part. You can see how that might work well for Rachel.
Rachel Weintraub is director of product safety and senior counsel at the Consumer Federation of America in Washington, D.C.
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