CPSIA - Consumer Groups and the CPSIA

Walter Lippmann, founding editor of The New Republic and winner of the Presidential Medal of Freedom in 1964, once cited the components of wartime mythmaking as "the casual fact, the creative imagination, the will to believe, and out of these three elements, a counterfeit of reality." Hmmm. He might have been talking about lead in children's products. Mr. Lippmann explained: "Men respond as powerfully to fictions as they do to realities [and] in many cases they help to create the very fictions to which they respond."

Last week, a number of interested stakeholders met with the staff of the House Energy and Commerce Committee to discuss what to do about the CPSIA. Do I need to explain why the situation is urgent? The list is long, and the victims are basically defenseless. Mass market companies are inconvenienced but not hobbled; small businesses are crushed, confused and scattering into other markets. Consumers, unaware that the federal government has meddled in an unprecedented way with a market upon which they depend, are oblivious to the threat posed by the weakening or departure of their suppliers. And the Dems just smile and tell us this is all for our own good. Don't worry, they know what's best!

Various stakeholders tried to explain the many ways this law has caused harm and the reasons why it is appropriate to loosen the noose around the business community's neck. Scan my remarks, the HTA's presentation or the words of the AAFA as an example, and you will see how high the stakes are.

No meeting on the CPSIA would be complete without consumer groups chiming in to defend this "perfect" regulatory scheme. In this case, Consumers Union, the Consumer Federation of America and the American Academy of Pediatrics all touted the triumph that is CPSIA. CU spent a fair amount of time asserting that the public database rules adequately protect manufacturers and that the perceived defects in the proposed database plan had already been addressed by the Commission. [See Nord's blog and Northup's blog on this topic.] What, me worry?! CU also noted that there WAS broad support for the CPSIA (back in 2008), as if that were sufficient justification to stick with a clearly defective law. This was nothing more than the Waxmanis' argument that no further discussion is merited because of the Perfect Legislative Process. Ah, the infallible Congress, how could I forget?

My special friend Rachel Weintraub of CFA took the opportunity to reassure the gathered crowd that the law has done us all a lot of good. [She was careful to not put anything in writing. Given that limitation, I must work off my notes and apologize for any inaccuracies.] Her reasoning relied on the assertion that consumers "thought" that someone issued a "stamp of approval" for children's products being sold in U.S. markets. This strikes me as "transference", meaning that this may be how Rachel feels herself or how she feels we the general public OUGHT to feel. In any event, there are a lot of consumers out there, and I rather doubt Rachel is able to know how they all felt. She went on to assert that consumers lost faith int he regulatory system. Ditto. After recounting the many wondrous things the law has engendered, she asked that the law be given more "time to work".

More time to work? To what end, to finish the job and put everyone out of business . . . other than CFA? OMG.

And then there is my personal favorite, the AAP through their Washington representative Cindy Pelligrini. Ms. Pelligrini has been making trouble over lead for many years. I first encountered her when the 2007 testimony she ghosted for Dr. Dana Best was used to justify the Illinois lead labeling law (see below). For last week's meeting, the AAP submitted a position paper announcing its unwillingness to support any change to age limits, lead limits or even the consideration of risk by the CPSC. Why do you suppose the AAP cannot support the consideration of risk? Ms. Pelligrini explained in her oral remarks that the AAP felt consideration of risk would be too BURDENSOME ON THE AGENCY. What a heartbreaking scenario, the terrible burden! The AAP is so considerate to think of the quality of life of CPSC Commissioners.

The AAP was able to muster support for tightening the lead limits in the CPSIA to 40 ppm, however. Perish the thought of dropping the 100 ppm standard! When I questioned the process by which this position paper was created by the AAP, Ms. Pelligrini wrote me to explain that it is old news, derived from their January 21, 2009 letter to Henry Waxman. So, apparently, nothing has happened in the last 24 months nor any additional data developed to merit reconsidering their recommendations. I see.

Of course, I recognize that the metabolic impact of lead has not changed because of the development of injury statistics (or, more accurately, the development of no-injury statistics), and in this sense, I suppose, the AAP position need never change. On the other hand, I have previously addressed the issue of science being used as a bludgeon to "prove" preconceived notions. In my post of December 14, I discussed an article entitled "The Truth Wears Off". It could have been about the story the AAP tells about lead.

Without going into the arguments about the falsity of the AAP's claims (or at least their fatally misleading nature), I would like to draw your attention to the "detached from reality" position they take on lead limits. They want to establish a limit of 40 ppm for lead. Anyone remember that Mr. Obama's vegetable garden at the White House was at 93 ppm? The AAP points to research they conducted with the U.S. Geological Survey to come up with this limit. In other words, it is their estimate (however faulty) of background lead "contamination" in our environment. [As if the natural presence of an atomic element constitutes "contamination".]

AAP's suggested lead limit of 40 ppm is basically below the reliably measurable limit and imposes uncontrollable economic risks on manufacturers. By uncontrollable, I mean that the odds of finding a part or component with lead levels in excess of 40 ppm are pretty good in almost any manufacturing setting - given the disorder, irregularities and complexities of the real world, defects of this nature are not really preventable, at least in a prophylactic way. [This is different than saying anyone is likely to be injured, please note.] Even a Six Sigma company would find this a major challenge. Remember, if you find such a part or component, the entire lot becomes a liability and may have to be discarded, a total loss. The imposition of this kind of manufacturing risk will cause many market departures and other bad economic impacts. You will only have to discard one big lot to get the message - find something less regulated to do.

My word against hers, right? Well, perhaps not. My home state of Illinois is running a test on this point. Illinois has a new law that requires labeling toys (you know, a warning label that Scott Wolfson doesn't think matters) if they have paint with lead over 40 ppm. Actually, since lead-in-paint is now illegal under federal law at 90 ppm, the Illinois law effectively requires labeling for paint on toys BETWEEN 40 and 90 ppm. Feel safer already? Not everyone does. See the coverage in the Akron Beacon-Journal on such labeling. The headlines of the article says it all: "Label on doll shoes made by Toys R Us subsidiary worries parents. Warning about lead is cause for concern. Company says product is safe, but some experts say children shouldn't be exposed to even small levels of metal in toys." The AAP thinks this would be a jolly good rule for the entire economy.

I could go on. [If you are bored, you are welcome to consult my response to the "no safe level of lead" argument in response to Bob Adler's attempt to "prove" this point.] In point of fact, the consumer groups are just trying to gum up the works. There are apparently still some members of Congress (I am not ready to name names) who are "true believers" and according to rumor, are ready to block any sensible effort to fix this law. I guess it's tough for some people to admit a big screw-up. Keep this in mind the next time you hear the media blame Republicans for "gridlock".

In any event, you should not feel particularly comfortable just because the Republicans are running the show in the House. The Republicans are in fact very aware of the issues and the details of the problems under the CPSIA and at the CPSC, and are motivated to do something about it. They have the votes and the intent to move something useful forward. However, the Senate is still controlled by populist Democrats who just seem deaf to reason, argument or data. As long as they (or even just one of them) stands in the way of putting this part of the economy back on track, we are stuck. Even with the grudging cooperation of Senate Democrats, we also need the White House to sign the law. And then there's the persistent zealotry on the CPSC Commission. Many variables and risks remain.

Despite the odds and the death march aspect of this "war", we must carry on. We must keep fighting, we must keep calling, we must keep protesting. The words of Ronald Reagan ring in my ears:

"I do not believe in a fate that will befall us no matter what we do. . . .

I do believe in a fate that will fall on us if we do nothing."

We are the People, this is our country. We do not need to be held hostage by a small group of zealots. The task of taking back America did not end at the 2010 midterm elections. If the Dems will not help us, and if the consumer groups are going to be obstructionist to the very last, then we must fight and we must fight with vigor and intensity. No one is going save you . . . but you.