Monday, February 28, 2011

CPSIA - Jockeying for Position over the Database

The Washington Post published the latest whitewash on the CPSC public database yesterday entitled "Publicly accessible product safety database hits House roadblock". In this article, the Post allowed consumer group favorite Rachel Weintraub to publish her own spin of matters: "'There's a lot of support for the database, but we don't know how the dynamic is ultimately going to play out,' said Rachel Weintraub, director of product safety and senior counsel for Consumer Federation of America. 'This is really a last-ditch effort by manufacturers to hold on to this great situation they have right now, where information is not getting out to the public.'" [Emphasis added]

Of course, Rachel was simply borrowing a phrase from last week's New York Times ("Emboldened by a Republican majority in the House of Representatives, manufacturers of toys and other children’s products are making a last-ditch effort to quash new safety regulations that they say are unfair or too onerous"). [Emphasis added] When you have a great phrase, why not use it over and over?!

What's the truth? Does it even matter anymore? Jennifer Kerr of the Associated Press questions the purported (asserted) value of the database, noting:

"Anyone can submit a "report of harm" to the database. They aren't required to have first-hand knowledge of the alleged injury or potential defect that could lead to injury. . . . The U.S. government has a similar auto safety database, also available to consumers online, that describes people's safety complaints in extraordinary detail. It is the government's principal early warning system intended to alert federal investigators to signs of looming safety problems. Yet despite efforts by the National Highway Traffic Safety Administration to review consumer complaints before they're memorialized in the government's database, an AP review of 750,000 records last year found that the data included complaints about slick pavement during snow, inconsiderate mechanics, paint chips, sloshing gasoline during fill-ups, potholes, dim headlights, bright headlights, inaccurate dashboard clocks and windshield wipers that streak." [Emphasis added]

This is just what we in the small business community need - a government-sponsored, funded and promoted accumulation of unqualified miscellaneous gripes about our products. Do you think the media will ever take an interest in this stuff? Nah . . . .

And lest we forget, a familiar criticism of the database is that accusations can take a long time to resolve . . . but once posted to the Internet, can never be truly expunged from the permanent record. The year-long DryMax diapers controversy, not to mention the trashing of Toyota braking systems, demonstrate the severe risk U.S. manufacturers and importers face under the database. Imagine the long term damage to those brands if the accusations (subsequently proven false) never died . . . . Notably, Wayne Morris of the Association of Home Appliance Manufacturers called the new database nothing better than a "blog" because of these design defects.

The Washington Post failed to mention this nuance. Rachel must have forgotten to point it out.

I think it's also worth considering the gap in how the CPSC describes the purpose and function of the database. Thanks be to Congress, is it clear WHY we have this database? Cheryl Falvey, General Counsel of the CPSC, says it's a "complaints" database, NOT a "causation" database. She is pinning her interpretation on the disclaimers all over the website that the information on the site has not been proven and may be wrong. In other words, the postings can't be relied upon. They are only "complaints" under this view. Ms. Falvey used this reasoning to dismiss complaints about process raised by pesky last-ditch manufacturers at last week's ICPHSO.

Of course, if the postings are really just "complaints", why did the CPSC name the site ""? Doesn't sound like a complaint website, does it? A long time ago, I complained about the website name to the person who claims to have coined it. I did not win that one, obviously. The URL includes the media-friendly term "safer" and makes an inescapable connection to Ms. Tenenbaum's famous remark on website trustworthiness: "Well, to all of you here today, I say don't believe everything you read on the Internet, except what you read on Web sites that end in dot gov."

I may not be the only one who thinks this, despite the website's disclaimers.

This impression is reinforced by Chairman Tenenbaum's own description of the ideal workings of the database in her keynote speech at last week's ICPHSO: "I also envision the site empowering consumers to make independent decisions that further their own safety and the safety of their family. If a mom uses the search function on the site, sees a series of reports of harm about a product she bought for her child, and decides to take the product away from her child, while behind the scenes we are working to finalize a recall—that is a good thing in my opinion."

That sounds like a "causation" database, doesn't it? The implication is that the mom can rely on the information (it must be true) and besides, doesn't an injury "incident" mean that a recall is coming soon? My immediate concern is that Ms. Tenenbaum is right - unqualified and unverified complaints on WILL induce consumers to take our products away from children - whether or not a recall is forthcoming. We also know that Ms. Falvey is right - no one knows if the complaints are true - but who will reimburse our losses when the government convinces our customers that the safest course of action is to stop using our product pending a decision that may never be forthcoming . . . because nothing's wrong.

The Chairman is encouraging consumers to rely on this information - to draw conclusions on the likelihood of future injury. This is even more alarming, given that Ms. Tenenbaum said in Congressional testimony last week that the agency will likely post unverified or inaccurate information to the database. She knows that this information will be faulty. As she said in testimony, "that's what the rub is".

That's the rub, indeed.

I am tired of the rub, indeed.

CPSIA - Fun with Lead!

Hey kids, don't try this at home! Discovery Channel's MythBusters Show plays with molten lead.

Lead is a neurotoxin, in case you forgot. Molten lead is soluble lead, very dangerous if ingested. Of course, molten lead presents OTHER risks if ingested. We need a law against molten lead now!

Check out their experiment. It's completely irrelevant to the CPSIA but then again, my sense of humor has been underserved for a few years now and I love a good if pointless experiment.

Sunday, February 27, 2011

CPSIA - My Testimony at the CPSC Hearing on 100 ppm Lead Standard 2-16-11

Here are clips from my testimony at the CPSC Hearing on 100 ppm Lead Standard on February 16, 2011. As noted in previous blogposts, there's much more to see and hear in this panel discussion. The clips focus on me and my testimony. I admire the testimony of the other panelists and especially the quality of the dialogue after the testimony under questioning by the Commission. If you want to see it unedited, check out the full video at the CPSC website.

I have already published the links from the morning session. Viewing those clips before watching these clips may help you understand the flow of the argument better.

My full testimony:

[Notably, Ms. Tenenbaum cut me a break and let me go over my 10 minute allotment. I appreciate that courtesy.]

Commissioner Bob Adler questions me on the future of small business under the CPSIA and the need for the Commission to "follow the law" and implement the new standard despite the known consequences. This may be the most interesting interchange on the troubling issues under the CPSIA that I have participated in over the past four years. Check it out!

Commissioner Anne Northup asks about the ability of small business to obtain exemptions from the lead standard:

Commissioner Nancy Nord questions me about recycled materials, the cost implications of the new standards and injuries:

My call for a Five Year Stay on the new lead standard to allow for development of real injury statistics:

CPSIA - Consumer Group Testimony at CPSC 100 ppm Lead Standard Hearing 2-16-11

I have prepared some clips from the CPSC hearing on 100 ppm Lead Standard on February 16, 2011. I have not prepared comprehensive clips on every presentation. For instance, I omitted the testimony of the testing companies from the second panel (here's a hint - guess what they are ready and willing to do?). If you want to see video that I have not delivered to you on a silver platter, check out the CPSC video of the Morning Session (consumer groups and testing companies) and Afternoon Session (industry representatives, including my testimony).

There is a lot of interesting testimony not in my clips, in particular in the afternoon. Although I think I am giving you a lot of relevant information in the clips I prepared, you are always welcome to check my work. I was quite impressed by the other presenters in the afternoon session, and the vigorous and interesting discussion that followed, but anticipated that you would not likely spend 4-5 hours watching the entire thing. If that floats your boat, please enjoy the links above.

In this post, I am embedding several clips from the morning session where the consumer groups stated their "case". I hesitate to characterize the testimony as "tall tales" but watch for yourself and see what you think. I have come to believe that the consumer groups will say ANYTHING to prop up their beloved CPSIA. [Consider the laughable "consumer poll" prepared by the Consumers Union promoted by Henry Waxman on the eve of the House Hearings on February 17, 2011. CU shamed themselves with this pathetic effort to "win" the debate with garbage polling data.] This may include the remarkable hyperbole in the clips below. We can speculate among ourselves whether Don Mays really shakes with fear at the thought of his daughter playing a brass instrument (he says he would be "very concerned").

Likewise, does Dr. Dana Best believe the nonsense statistics she flung around last week, like the one about ingesting an object with 300 ppm lead costing a child four IQ points? Please, dear G-d, that statistic is absurd on its face. The assertion that children are losing four IQ points from swallowing objects with trace levels of lead is irresponsible and misleading at a minimum, and something much worse if done with understanding or intent. The spectacle of Ms. Best's testimony included calculations of the "cost" of 1 million injured children DESPITE the inability of any consumer group to produce the case history of a single child injured from lead-in-substrate in children's product EVER. [I replied to Dana Best in my testimony.]

We must hold Dana Best responsible for the words that came from her mouth. Interestingly, Dr. Best was the only nominal author of the seminal testimony on lead in the CPSIA debacle. According to her colleague Cindy Pelligrini, Dr. Best didn't write her 2007 Congressional testimony (Pelligrini told me in a phone interview in 2008 that she wrote it for Dr. Best to deliver). Did Dr. Best write last week's testimony or was it another Cindy Pelligrini job? One can't help but wonder, given the shocking assertions based on misleading and garbled data. The AAP should be ashamed.

Dr. Dana Best (AAP) on losing IQ points and "millions" of victims:

Dr. Dana Best worries about children licking their bicycles . . .

My 17 year old daughter came along on this adventure and at breakfast the next morning, asked me why a child would like their sibling's bike rather than their parent's? After all, the adult bike is not regulated. I thought that was a good point, and added that if we posit that the child was going to lick something inappropriately, why would they lick a bike - why not the family car, which is coated with lead paint? Of course, I got it wrong. I was later corrected by someone who, after listening to this story, reminded me that the two year old wouldn't lick either bike or even the car - they would play in the pool of oil under the car. You can take it from there . . . .

Don Mays (Consumers Union) and Dana Best (AAP) on the frightening prospect of children playing in brass bands:

CPSIA - House Hearings Questions about Rock Labels

Rep Butterfield questioned me about whether we REALLY needed to place labels on our rock kits indicating that our rocks might contain lead. As you may recall, I wrote about this last week and provided the clear explanation that the CPSIA bans the sale of any children's product which has components that may contain lead. That includes rocks in rock kits. Oops. I have embedded the clip of his query below, followed by a clip where Rep. Cassidy (a medical doctor) attempts to clarify the situation further.

I think it is important to note that Mr. Butterfield was making a point he believed in. He was gracious to me and my children before the hearing and I don't wish to question his intelligence here. I mean no insult or disrespect. Actually, the implication of his question is significant. He had days to study up on this question (he had a copy of my remarks in advance) and relied on Democratic counsel to the committee to analyze this legal point. He and his lawyers got it plainly wrong. As you will see below, Nancy Cowles also fumbled this same ball. The law CLEARLY requires this label of me, and it's THEIR law (the CPSIA). So what do I conclude? The Dems and the safety zealots don't understand the workings of the law they so vigorously defend. I believe this speaks directly to the challenge operating businesses face. If the authors don't get it, how are we supposed to? The answer is self-evident.

The question of WHY they continue to push so hard for a law they don't understand remains open. I don't think we can assert that they are bad people or dumb. If that's the case, and it is, what are they up to? I will chip away at this point in coming days.

Rep. Butterfield on rocks:

Rep. Cassidy on rocks:

CPSIA - House Hearings Clips of Questions for Both Panels

A few select clips for you from last week's House Subcommittee hearings. I will provide just a bit of commentary to accompany the clips. I will also be posting two other clips in a separate blogpost to follow.

Questions by Rep. John Dingell for Inez Tenenbaum and Anne Northup:

This clip features John Dingell trashing the CPSIA and pushing HARD for change. Listen to him BASH the Senate for mucking up his law!

Clip of Inez Tenenbaum and Anne Northup arguing about what the public injury/incident database cost - $3 million or $29 million.

The bickering over this critical point reflects a real misunderstanding on the CPSC Commission. What explains this? Not sure, really. Jennifer Kerr wrote about this topic today for the AP and noted that she had previously been quoted at $20 million by the CPSC. Oops. . . .

Clip of Inez Tenenbaum admitting that the CPSC will likely post INACCURATE information into the database . . . .

Shocked?! She also admits that only 723 companies have registered in the "soft launch" of the new database. Is that a lot? We registered seven brand names, so count me for 1% myself. I cannot say we control 1% of the economy. Draw your own conclusions . . . .

Clip of Rep. Jan Schakowsky questioning me!

Smackdown! I ran the Finance Committee for Ms. Schakowsky's opponent in the 2010 midterm elections. She gave the quote above to the Wall Street Journal in a profile of my role in that campaign. Have fun!

Clip of Rep. Olson questioning me about the 15 Month Rule and destructive testing.

Check out how many units the CPSC wants me to destroy in testing EVERY year!

Clip of Rep. Marsha Blackburn questioning Nancy Cowles of Kids in Danger on the sources of lead poisoning in America.

Clip of Rep. Blackburn questioning me about our testing costs.

Clip of Rep. Harper questioning me about testing standards.

CPSIA - House Hearing Testimony of Jolie Fay and Wayne Morris

Testimony of Jolie Fay, HTA Board Member:

Testimony of Wayne Morris, Association of Home Appliance Manufacturers (AHAM):

CPSIA - House Hearings Testimony of Richard Woldenberg 2-17-11

I have created some clips from the hearing on CPSIA and CPSC Resources held before the House Subcommittee on Commerce, Manufacturing and Trade on February 17, 2011 in Washington, D.C. I have not prepared every single clip from the hearing. If you want to see the entire thing, click here and enjoy! Otherwise, I am going to post numerous clips and you can pick and choose as you see fit.

My testimony at the House hearing:

Friday, February 25, 2011

CPSIA - ICPHSO Update on Recall Law and Procedures

This panel discusses technical legal issues. You need to hire a lawyer to explore these issues. This blog is not a substitute for qualified legal representation. As previously noted, I am working off my notes, too. Please proceed with due and appropriate caution.

Panel included
  • Eric Stone, K&L Gates LLP
  • Georgia Ravitz, Arent Fox LLC
  • David Baker, Law Offices of David Baker LLC
Eric Stone: Section 15(a) of CPSA limits the agency's authority to pursue only items presenting a substantial risk of injury or death. The agency has the right to sue for the same thing under Section 15(c) (mandatory recalls, very rare).

The prior law allowed manufacturers to elect the form of recall program. The CPSIA changed that, and gives the CPSC the authority to make those choices now.

Under Section 15(j), the agency can make a "substantial product hazard" findings across an entire product category, essentially by way of rulemaking. There are certain prerequisites to taking this action. The poster child for this is drawstrings in hoodies.

New violations of law INCLUDES reselling recalled items EVEN IF it was wholly voluntary or initiated entirely by the company without CPSC judgment. That recall is also enforceable in 51 jurisdictions. [Something to think about before you climb on the Fast Track Recall freight train . . . .] False statements or "attempting to mislead" the CPSC has dramatic implications under the new law. Don't go there . . . .

New penalty factors include a failure of the violator to respond "in a timely or complete fashion to the CPSC's requests for information and immediate action". Hmmm. Felony penalties now include asset forfeiture. Yep, that baby's raising its head again. In theory, the government can take your assets which it believes you have gotten through ill-gotten gains, like your house, your business, your buildings or plant. Hmmm. Love that CPSIA . . . .

David Baker:
  1. "Substantial Risk of Injury" - no definition in the statute or in the legislative history. CPSC and the courts (Mirama Enterprises case) have interpreted it. Factors include death, grievous bodily injury (mutilation, dismemberment, severe burns, injuries likely to require extensive hospitalization). He asserts that MANY of the recalls initiated last year do NOT meet this standard. [RW: Where have I heard that before???] More than 1/3 of recalls do not involve injury AT ALL and many of the others fall far short of "grievous bodily injuries". DB: Should the CPSC be taking these cases? Should they simply say thanks for the report but no action is required? [Corrected at David Baker's request 4-11-11.]
  2. Fast Track versus Slow Track - Express lane to a press release. No "finding" of a defect, possibly helpful in a product liability case. Fast Track cases aren't always so "fast". Are there cases in FT that because they have no injuries shouldn't be there? Is there still a slow track?
  3. Penalty phase - "NO GOOD DEED GOES UNPUNISHED." Every recall files is reviewed by the General Counsel's office for late reporting, including those without injuries. There are MANY civil penalty cases being prosecuted out there now. [This could be you, baby.] Is the CPSC going after its own constituency? There is a very accomplished ex-U.S. Attorney now on staff at the CPSC (I think he is referring to Mary Murphy).

Last to present is Georgia Ravitz on Section 6(b) (unilateral press releases by the CPSC and their coercive power). Information that manufacturers submit to the CPSC are protected from disclosure to the public. Section 6(b) is the section governing procedures for releasing such information. [This is why Sectionn 6(b) is continually under attack by consumer groups. Their need for information trumps the interest of manufacturers in this confidentiality pledge. . . or at least so they say.]

CPSIA amendments to Section 6(b) gives the agency the right to issue unilateral press releases. The CPSC must "find" that the situation is so urgent that public interest in immediate release of information about a product hazard over the time permitted for review under Section 6(b).

Gives examples of such unilateral releases. The first one related to Simplicity bassinets. [They were already bankrupt and their assets had been auctioned off.] Other examples include the Witco "Recall to Repair" stadium light poles. GR notes that there is some concern that this release evidenced the CPSC acting in a rushed manner.

GR wondered aloud whether the right to preemptively issue press releases is being used "appropriately". [Georgia is very polite.] She quotes from the legislative record to note that Congress wanted to give the CPSC the ability to inform the public about "hazardous products". In other words, there must be certainty that the product is actually hazardous. She quoted from a speech from Chairman Tenenbaum where she indicated that the agency will use its powers to get its way, and then quoted from my December 2010 Senate testimony on coercive incidents at the agency. . . .

GR says that if the new powers under 6(b) are being used to coerce agreement, then the provision is being misused or being used in a way not intended by Congress. [I agree.] Coercion stifles meaningful dialogue. She thinks this provision should be used as a last resort and only use when there is no responsible party left (bankruptcy) or when the violator is clearly abusing the process through foot dragging.

GR calls for a return to "the way it used to be", namely a more open and less coercive deliberation at the agency over disputes. David Baker indicates that he has NEVER overturned a Preliminary Determination letter. [CPSC as judge and jury. That's a tough combo to overcome.]

Eric Stone: How do you overcome the impression that a company is "evil"? Baker - meetings at the agency are much rarer today, most communciations by phone call or email. Leads to more disagreements and makes disputes harder to resolve. Speed leads to this manner of communication. GR: My experience is that expressing a cooperative attitude with CPSC compliance officers will typically be reciprocated.

Gotta go catch my plane . . . .

CPSIA - ICPHSO Mock Civil Penalty Jury Exercise

There has been only ONE court decision relating to late reporting penalties, and it was a resounding victory for the government. A juice company lost a case in California in federal court. Since there is no little law on the subject, the presenters today assert that there is no way to predict how a future case might be decided.

The panel today:
  • Eric Rubel, Arnold & Porter LLP
  • Cheryl Falvey, GC of CPSC
  • Sean Laane, Arnold & Porter LLP
  • Richard Levie, retired Judge and current arbitrator/mediator
  • Mary Murphy, Asst GC, Div. of Compliance, CPSC

The panel presentation was designed as a mock trial. Both sides of the case will be presented, and you can clearly how both sides will portray this incident and both are compelling.

First to present was Mary Murphy on behalf of the government. She emphasized the facts of the injury to the child. This is clearly how you and your company will be made to look worst. This is no surprise and is standard fare for a plaintiff in a lawsuit. She likewise related the prior reporting of the risk or incidents (to the company and to the CPSC) that suggested the hazard.

Needless to say, this is the reason that consumer groups want the database. They want to create a body of evidence to coerce product changes ahead of injuries. Of course, any responsible company monitors market data (such as consumer reports) to do just that sort of thing. The database, however, is fodder for lawsuits and facilitates this kind argument. The likely impact is that the cases of plaintiffs will be strengthened and awards will grow.

Shall we take a trip down memory lane and remind ourselves of the principal source of funding for the consumer groups active in children's product safety? Are you surprised to know that it is trial lawyers and the plaintiffs bar?

Back to the presentation of Ms. Murphy. She's doing a good job making the manufacturer look bad, almost venal. She links the injury back to a failure to report. This is because of the asserted critical role of the CPSC in keeping America safe. She poses the question "would this injury have occurred but for the failure to report?" She argues that ten reports from consumers (of the hazard, loose beads on a high chair, not injuries) created an obligation to report based on a substantial risk of injury or death. She likewise anticipates that the defense will be that the manufacturer had no duty to report. She says that the late reporting only took place when the manufacturer's back was "up against the wall". Again, Murphy emphasizes her story about the motivation or mental state of the company.

More evidence used against the company included multiple written reports by the CPSC to them of consumer complaints. Ms. Murphy is painting a clear picture of a company that is not acting on a known safety issue. She indicates that the company ignored this information based on poor advice, despite internal admissions that "this was an accident waiting to happen".

You can see that the facts of this hypothetical case opens manufacturers up to bad behavior portrayals. I applaud the effort to make this clear - you need to take this on board. The facts of this case appear extreme and objectionable. Media and political over-reaction to this kind of corporate behavior sent the REST OF US down the river under the CPSIA.

The defense was offered by Sean Laane. He noted the responsible behavior of the company by repeatedly testing the goods using CPSC standards and CPSC-accredited independent labs. Noted that the CPSC tested the product TWICE after reports of incidents from consumers - and the products passed! [Note that any safety system that overly depends on testing will ALWAYS expose a company to risk if it is distracted from or chooses to ignore contrary information from the market. This is a basic flaw in the reasoning of the consumer groups and the folks behind the CPSIA.] He goes on to note that the CPSC can't have it both ways, since it never concluded that action was required based on the incidents it was aware of. After all, the CPSC had several reports and did nothing. Claims the CPSC takes a "gotcha" approach because although it claims "late reporting", it was well-aware of the issue long before the injury - and did nothing.

Laane notes the extensive investment of this company in safety. He questions whether there was a reasonable basis to conclude that there was an unreasonable risk of injury or death. Clearly the CPSC didn't feel it was an unreasonable risk itself! Also notes that you don't have to tell the CPSC about information the agency already possesses. Notes repeatedly that the CPSC's actions or inaction are based on their expertise and fact findings, thus confirming the reasonableness of the company's approach. Notes that companies have no obligation to make products utterly indestructible.

Laane noted that the person inside the company who called the condition "an accident waiting to happen" was not a QC person or responsible manager. Instead, he was a customer service rep, and relayed that message to the QC department for their evaluation. Child who was injured later fully recovered, and the company chose to immediately initiate a Fast Track recall.

An interesting point made by Levie is that the company's awareness of similar issues in similar products can be held against them. If they knew or SHOULD HAVE KNOWN about other recalls or notorious injury incidents reflects on their later decisions or inaction. [I am glad I don't make baby monitors . . . . This is a good lesson on the reality of the problem of "emerging hazards". Note that you are going to be judged not just on what you know, but also on what they assert you SHOULD have known.]

CF: One of the most persuasive arguments made by defendants is a track record of reporting to the CPSC. This shows a commitment to safety and cooperation with the CPSC, demonstrating trust that the CPSC will not recall product everytime.

Levie agreed that this fact pattern will also be persuasive to a judge.

All market participants need to think about this kind of issue and how they might fare if they face a similar dilemma.

Thursday, February 24, 2011

CPSIA - ICPHSO Update on the Database

Cheryl Falvey announced at the beginning of this overtime Q&A session that she wants to have a civilized discussion of the problems of the database, because they want to solve problems. That said, she said she'd cut it short if it turns into a gripe session about the database "because I know you hate the database".

Nice, at least the General Counsel of the CPSC has an open mind! This reminds me of her aggressive and utterly unsympathetic suggestion at the November 2008 CPSC Lead Panel that we should all have a big "yard sale" of products that exceed the lead standard. Gave me a warm feeling then, gives me a warm feeling now.

I will try to craft some questions that she will find acceptable.

CF: Need to have your licensees register as part of the database. Licensors can also be listed as a "viewer" under the DB. They may not want that, because there could be liability issues.

[RW: Hmmm, I thought this database was all about empowering consumers. Liability? Empowering consumers to do WHAT?]

CF: More details given to licensors [aimed at Disney, who must have raised this question offline] plus some legal advice on how they should structure their licensing agreements "right now".

CF: It's a "complaint" database, not a "causation" database. [RW: This makes NO sense based on the stories they all tell about why they want the database implemented, especially the fantastic story told by Inez Tenenbaum in her keynote speech. She says she feels good when someone removes a product from use while the CPSC is working on a recall. This is CLEARLY all about making a JUDGMENT on the products - in other words, CAUSATION. It's a tall tale to contend that the general public will understand that this is a complaint database. Consume groups promote the database as a warehouse of the truth, not just a "blog". Cheryl Falvey is spinning yarns to justify her work on the database.]

CF: You are raising policy questions and this meeting is not about policy. We were dealt this hand and were told by the Commission to get the database up and running. If you disagree with the policy, you need to take it to the Hill. I am going to take other questions now.

[RW: So we cannot complain about the consequences of CPSC action on the database because they're just doing their job. We must hold them harmless and "get used to it". This is an old argument used by Falvey in past speeches - don't be in denial, it's coming, get used to it, take it on board. My question for you - do you like being treated this way? I don't.]

Q: We have been the victim of fraud where people submit pictures of "injury" pulled from the Internet. We also don't get enough data from you, may not have consumer's contact information and don't have the time or resources to properly research or resolve these accusations before the ten days are up. At that point, the damage is irreversible. What can we do to protect ourselves?

A: We have not had bad experiences in the "soft launch". We don't want you to be hurt, you should "raise" these issues. [Didn't she say this morning that they received so many photos that they had to get new servers? No problelms . . . .]

[RW: Fingers-in-ears. This does not correspond to the rules, Cheryl, and you didn't answer the question. The question notes that there won't be enough time or information to verify or sort out the claim before it's published. Why are you deaf to this? You know that your publication of this data CANNOT be remedied. Oh yeah, you are just doing your job.]

Q: Why can't you just test this system with people who have already registered and learn about the issues from this experience?

A: Your idea is a "great idea" and we will see if we can run with it.

[RW: Don't hold your breath.]

CF: We really want to talk about the brand and license issue!

Q: What will happen to me if an injury report blaming me for an exploding battery is actually counterfeit?

A: The interest is in protecting the public, that's the policy issue. The disclaimer seems to mean a lot to Cheryl, cures all these ills. She poses the question of whether bulking up the disclaimer.

[RW: The answer to all of these question boils down to the fact that manufacturers have no due process rights because their rights are deemed inferior to consumers. This is a policy decision, too, and is NOT part of the law. It's the philosophy of the CPSC these days, and is political in nature. Using Falvey to announce the policy makes it look more like a legal judgment, however. Falvey has not explained HOW due process rights guaranteed by the Constitution have been removed for U.S. corporations under the CPSIA.]

CF: Can't put off the March 11th implementation of the database.

[RW: Recall my remark about an open mind. This isn't a gripe session, this is a venting session hosted by Cheryl Falvey. She has no interest in making any changes - consumer groups get their way. Mike Pompeo's amendment better become law. The CPSC will do NOTING to address known defects in the database. As Falvey says, these are "policy" issues, outside her job spec.]

Q: Can manufacturers reply or comment privately?

A: Nope, if you comment, the comments need to be published. Only the confidential parts of the comment won't be posted. [RW: This is so unbelievably one-sided. It's victory for the left wing. They put their people in charge and let them run amok.]

Q: We share brands with other companies (think of celebrity brands). How will you handle notification tied to such brands on multiple products?

A: The tracking labels would really solve all of these problems! We need to be able to send the notice to somebody. We understand the gap and are working to make the system better. We have a lot of brand information already.

Q: We traditionally get written notices that identify us as a manufacturer of a halogen table lamp. We make 20 halogen table lamps. What will happen under the database?

A: You'll get the notice and if you can't give us information on the product, one of us will have to call the customer. In any event, the data will go up on the database.

[RW: This is a classic problem illustrating how manufacturers will be unable to verify information or contest information before it's posted. As Falvey demonstrates, CPSC policy is that this is the manufacturer's problem. This is a travesty. Ironically, the issue was subtle enough that the questioner (a large company) could not see that he is prevented from identifying the product - even to verify that he made it - but will be labeled the source of a product "incident". And Falvey says that a claim this lame will still make the cut to be published. Is that true? I wonder about that. If it doesn't make the cut, then Falvey can't match the rules to a scenario accurately. One way or another, it's a screwing. Thanks, CPSC!]

Q: If Li & Fung registers and gives my name as importer of record, who gets the notice?

A: We will go off the consumer complaint. Whoever is named will get the complaint. If they are registered, they will get it by email. If they are not, they get it snail mail. It's still going up in ten days.

[RW: It's worth recalling that I testified at the original database hearing. As was the case in three of my five appearances at the CPSC, it was at the CPSC's request. I gave a very detailed dissection of the database, and distinctly recall being cut off by the Commission for going past ten minutes. They asked me to give comments, fly out at my own expense, and then cut me off. This abysmal attempt at public policy is the result. Screwing from square one.]

What a nauseating way to finish out such a lovely day.

CPSIA - ICPHSO Update on Compliance and Field Operations

Marc Schoem moderated a discussion involving four other heads of department (he is an acting department head, too):
  • Dean Woodard, Dir., Defect Investigation Div.
  • Mary Toro, Dir., Regulatory Enforcement Div.
  • Dennis Blasiua, Eastern District Div., Field Investigations Div.
  • Kathleen Lisius, Compliance Investigator, Import Surveillance Div (standing in for the director today).

DW: This division has four teams. Fast Track Recall program does not let you off the hook for reporting violations. It does avoid a "Preliminary Determination". This is a very "successful" and very "positive" program. Less bureaucracy and less "red tape". "Saves lives" and "limits your exposure" to whatever issues there may have been.

[RW: It is ALSO one of the most remarkably coercive programs administered by the CPSC. You are very often, if not always, given a short period of time to decide whether to participate. By "short", this could mean HOURS to decide. Hope you are always at the ready!]

MT: Four teams based on hazard. Four team leaders and 16 compliance officers. Different backgrounds on the team, lots of tech know-how and skills. This team does a lot of advising and gives a lot of guidance to industry. Have more than double the previous total of regulations that they have to enforce. Field staff goes out to do inspections. Develop field investigation programs for the year. Now MUST report under Section 15 for a violation of a mandatory standard. [Them's a lot of reports!] All such items also have a certification requirement.

DB - Does hundreds of inspections annually. Surveys, too. Visits to consumer homes and "no one leaves in handcuffs". [He said this in a joking manner.] Has roughly 100 investigations but gets tens of thousands of complaints annually. [RW: Now all that crap will go into the database. Can we see any issues here?] Emphasizes the politeness of his investigators. [RW: I appreciate this approach. I take him at his word.]

DB: Says we need to monitor the Internet for consumer complaints online. The CPSC is monitoring it so you better. Hmmm. DB says this may warrant investigation or spawn an investigation. More and more will send out investigators or ask for proof of destruction of recalled merchandise. Apparently, the re-export of recalled merchandise is up to Tim Geithner. [Fortunately, he's not too busy . . . .]

KL: Import Surveillance Div: Last year, not surprisingly, set a record of samples taken at port. 91% of the samples were violations, but only two products were recalled. Stopping at the port prevented the recalls. [This is interesting data. Are they clairvoyant or does everything coming into this country violate this godforsaken law in SOME way?] In apparel imports, the "first thing they look for" is drawstrings. Don't go there. . . .

Q&A: What if you disagree with the conclusions of your compliance officer? What are your due process rights?

MS: You are encouraged to call "up the chain". We are concerned to be responsive and want to know if you feel something is amiss.

60% of recalls come in under the Fast Track Recall program. In other words, this decision is made to pick up the "benefits" of the FTR program but also muddy the water about the state of the law on "substantial product hazards".

[RW: This is a total cop-out on the part of the agency and contributes significantly to the confusion on the workings of the law. In addition, the defects in the FTR program make everything worse. Marc Schoem admitted during Q&A that you often have only a DAY to decide whether or not to participate, which is inherently coercive. For most companies, unprepared for a federal agency descending on them with an "offer that you can't refuse" with an eight hour time limit, the pressure can be overwhelming. It is not unusual to get this "fine" offer before all relevant facts are known, and even when basically NO relevant facts are known. One wonders if the Shrek glasses recall was one such event. See no evil, hear no evil, speak no evil?]

Why call everything a "recall"? MS: We like the word "recall" and think it's most effective to "get the word out". [See Nancy Nord's blogpost from earlier today. The word also has tremendous under the CPSIA - perhaps Mr. Schoem's favorite word needs to be revisited since things have changed. It is also a tough word when there is litigation going on.]

CPSIA - Nancy Nord Chimes in on Baby Monitors

You gotta read Nancy Nord's blog on the baby monitor recall. It speaks for itself and is basically on the topic of why they call certain actions "recalls" and others something else. In the controversial recall of Summer Infant baby monitor, Ms. Nord notably admits the involvement of the CPSC in this recall. Check it out. This is NOT my imagination.

CPSIA - ICPHSO Update on CPSC Hazard ID and Reduction Efforts

Breakout session with Jay Howell and DeWane Ray.

Has 19 team members in ports of entry. Dedicated to working with Customs to ensure compliance with regulation. Looking over manifests and are focusing on problems products and "problem importers".

Jay's and DeWane's department also accredits labs. This is mandated by the CPSIA. Working on rules on how to get accreditation recognition and how you can lose that accreditation. Likewise, they are starting an audit function.

RW: It's amazing that we lived without all this until 2008. Has a single incident been revealed that justify this use of government funds? Not to my knowledge.

JH: Have 90 days to start using labs and if there are not enough labs within 90 days, the CPSC MAY stay the requirement until there are insufficient labs. Don't want to shut down an industry.

There are more lead-in-paint labs than anything else (more than 200).

New lab update: Located in Rockville, anticipating a Spring 2010 move-in.

Heavy metals work is focused on the eight metals mentioned in ASTM F963, Looking at it from a risk-assessment standpoint. [RW: That's somewhat odd these days. One wonders what constitutes a risk now. We can only hope that professional staff will exercise the same care as in the pre-looney era to assess real risks. Otherwise, your Toxic Metals Substitution Committee better stop substituting selenium for lead. I heard about you guys!]

JH: Reminded the group that 100 ppm lead standard is mandated by law unless deemed technologically infeasible [Brace for it . . . .]

Commission is not sure there is a real phenomenon of "recall exhaustion", meaning that the deluge of recalls has numbed consumers. Voluntary recalls are often driven entirely by the CPSC and that the CPSC doesn't even see the product.

RW: Then again . . . .

Again, Jay seemed the voice of reasonableness. It would be great to return to an era of trust with this agency. But when?

CPSIA - ICPHSO Keynote Speech by Inez Tenenbaum

This speech will no doubt be posted on the CPSC website shortly. I will add the link later, please forgive any errors in these notes.

Reviewed 2010 efforts and achievements.
  1. New crib standards ("vastly improved").
  2. Baby bath seats and walker rules
  3. Cadmium in jewelry and children's products (held off what might have been a repeat of the lead recall fiasco). Turned back some shipments at the port. Are now screening for cadmium when they find low lead levels in children's products. Looking at cadmium in substrate in toys and in children's products generally. Technical staff has made their position on these issues "abundantly clear".
  4. Toy safety improved. Recalls reduced from 172 in 2008 to 50 in 2009 to 44 in 2010. Lead recalls in 2010 were THREE. [RW: Obviously, lead is a huge issue.] This has helped to "restore" consumer confidence in toys.
  5. Drywall initiative with HUD. Warnings about sleep positioners and baby slings.

As for 2011,

  1. Looking forward to a "civil discussion" of the issues in 2011. The Commissioners go out to lunch together and aren't like the Sopranos. The Commission is not fractious. 85% of our votes are unanimous. We do disagree from time to time, but "hope to do so without personal or disparaging attacks".
  2. 2010 was the year of the Consumer and 2011 will be "the year to get connected with the CPSC". [RW: Last year she promised us that 2011 would be the year of enforcement. I guess that lays ahead . . . .]
  3. Will implement the Five Year Strategic Plan
  4. Wants to use Neal Cohen's office
  5. Launch the new database, assuming the government is "still open".
  6. Continuing new Section 104 rules, Pool Safely initiative, educating consumers about safe sleep.

"Knocking on the door" on being the global leader in consumer product safety. Looking for an "even more rigorous" identification process for product hazards. Will turn hazard identification into injury reduction. Want "safety built into the products intended for our store shelves."

Touts her agency's agreement with the Chinese government on toy safety. Sampling and testing in China will help assure safety.

Touts Neal Cohen's efforts, and the efforts of the CPSC Beijing office. Re Small Business Ombudsman, it is dedicated "touch point" for small business for education. Many manufacturers might not know where to turn for information or to fully implement the new rules. Not trying to take away business from outside counsel. [She really said this.] Wants to facilitate the transfer of knowledge across industries.

[No mention of SBO advocating for small business or playing an active role in RESOLVING rules disputes or problems. Hmmm. A shoulder to cry on?]

Looking at a shifting supply base, bringing other countries into play. We're looking to prevent a repeat of the China problems.

Re toxic metals, lead and cadmium requirements are intended to create safeguards for the future. Need to expand our vision beyond lead and cadmium. She's got a nice long list of new things to be scared of. We want to be "leaders" in preventing harm from these metals. Need to avoid exposure from the substrate of toys or other products.

[RW: I think a few more tests will do us ALL a lot of good! I am CRAZY to stick around in this industry.]

Back to new crib standards. Cribs must be replaced by end of 2012 to come into compliance with the new rules. [RW: Stimulus plan!] Cribs compliant with the new rules will be available by June, we hope. Lots new rules in "safe sleep" and other juvenile products.

Database ready to roll in two weeks. Don't forget to ask CF "more questions" today at 4 PM. ["More" questions?] She respectfully disagrees with objections to the database. Her pledge is that they will educate consumers that the report should be accurate and safety-based. Let's not let perfect be the enemy of the good. Data warehouse will promote greater efficiency. Consumers will be more "empowered". If consumers withdraw products while the CPSC is working behind the scenes to issue a recall, that's a good thing in her view.

[RW: Is it a "good thing" if they withdraw from using products that are safe or are not subject to recall? Hmmm. That question was unaddressed.]

Recounts her advice on how to amend the CPSIA (functional purpose exception, should get the lead out if it's "practical" to be removed, 100 ppm should be prospective only, and small businesses and small batch manufacturers deserve some relief). Will work with Congress on other changes.

She says, change it but don't end it. Hmmm. Certainly remains open to making old suggested changes to the law.

Finally, pleased to share that starting on March 1, will launch the Chairman's Commendation Circle Program. There will be more details about the nomination process. Wants to highlight innovators and those who are working to prevent injuries every day. [Hmmm.]

Have the right team in place, willing to take action against those who don't follow the law. Forging a new regulatory approach with predictability and consumer confidence. If all of us can be partners in this effort, can build on the progress made in recent years.

RW: This is BY FAR the least threatening speech by Ms. Tenenbaum since she ascended to her chairmanship. Let's hope this signals a significant shift in tone and direction.

CPSIA - ICPHSO Database Panel

Cheryl Falvey, Moderator - I am so excited about this panel because I know how much everyone loves the database.

I assume she was joking. Of course, she might have been thinking of the New York Times . . . .

Members of the panel:
  • DeWayne Ray, Dep. Dir., Hazard Identification and Reduction, CPSC
  • Mark Schoem, Dep. Dir., Office of Compliance
  • Melissa Hampshire, Asst. GC, Div of Enforcement and Information, CPSC
  • Scott Wolfson, Dir., Information and Public Affairs, CPSC

Won't accept anonymous submissions but will only share the info if the reporter ("consumer") checks a box to allow it. Will prosecute false filings. Won't publish for ten days after sending out the info to the manufacturers. You get the "whole" ten days.

RW: I am feeling all tingly now!

I just received a comment on my blog: "I think the coming government shutdown is good in so many ways."

CF: First picture submitted to the database was of a baby's behind.

And I thought it would be of a horse's behind . . . .

SF: We are a data-driven agency. Where have we typically received our data? DR: We get data electronically from hospitals and buy death certificates. Put up a bizarre slide with arrows, clouds, pointers, illegible type and so on. This apparently outlines where the data comes from and goes. They call this slide the "cartoon".

I am getting too much material here. . . .

DR: We really this new data warehouse which will bring real value to the CPSC. This is where they get the tools they need to "do the job".

The description of the database did not incorporate any response to the vigorous and legitimate concerns of industry. Wayne Morris referred to the database as a "blog". Ahem - CPSC, any reply?

Which reports of harm will be "public-facing"? MH: Many specific requirements before they can move forward with notifying the manufacturer or publish in the database.

MS: Rarely will postings result in a call to a company. There will be a "triage" team to sort through the data looking for serious issues.

What kinds of "product incidents" will be included in the database? DR: We have an internal process for "material inaccuracy".

What if they identify the wrong manufacturer? MH: It would be so "great" if you register, since you will get immediate notice after we complete our review of the data for meeting minimum manufacturer. We don't want to identify the wrong manufacturer.

[RW: Most of the time, manufacturers will not have sufficient data to evaluate that information, nor does ten days provide sufficient time to get this work done. Let's not forget that there's a lot to do in running a business. It is not acceptable that this database becomes the top priority of our company. It's just not fair or sensible to make filings in this database a daily emergency. In addition, very often, identification of the product is the least of the worries. What about the substance of the accusation? What happened to "findings of fact" or determinations of responsibility? The database is very likely to become a standard part of litigation strategy. There's a shocker for you!!]

How can manufacturers make comments on the "report of harm"? MH: Manufacturers can make any comment it wants. In addition, you can object to the inclusion of "confidential information". Can also claim that the filing is "materially inaccurate".

[RW: The latter two objections are as likely to be successful as an exemption from the "any lead" requirement. What, there are exemptions possible - look at the CPSIA . . . . So far, there are zero exemptions issued in three years. And there will be very few or no legitimate objections that stand up in the database process.]

CF: We rarely if ever receive confidential information from consumers. Todd Stevenson says it has happened twice since 1972. Staff will scrub the information to prevent this, too. Material inaccuracy is defined as false and misleading and so substantial as to materially mislead consumers. Burden of proof is on the manufacturer to supply EVIDENCE to support their claim of materially inaccuracy. The issue they will be most concerned about is materially inaccuracy relating to hazards. The agency EXPECTS manufacturers to call consumers in those ten days to figure out whether the claim is legitimate.

CF: We have received so many pictures during the soft boot of the database that we need new servers. It's pretty astounding.

[RW: OMG. This is going to be a feeding frenzy when Scott Wolfson puts his machinery into motion. Why do we need the government to play this role in the market? How are we going to stay in business when the government is encouraging litigation and brand destruction???]

CF: The database has a disclaimer that the agency can't verify or stand behind the accuracy of the database. We have no opinion on "causation".

RW: We are SOOOO screwed.

CF: Mentioned the DryMax diaper crisis that took a full year to resolve. [Under the database, every single claim would appear for a year until it emerges that each and every one was false and wrong. Too bad for P&G, I guess.]

RW: So so so screwed.

MH: Discussed link between the database filings and Section 6(b) disclosures. Ditto for FOIA process. [Based on my experience, FOIA couldn't take much of their time, since finishing off FOIA responses is . . . not a priority.]

Tell us about "education and outreach" about the database. SW: This is a tool for consumers. It's all about the back end.

RW: Now you know where you'll be getting it.

SW: It is extremely important to sign up for the portal. "Snail mail" won't work "as effectively". Think of the ten day window. 700 companies have signed up but it should be in the thousands.

RW: Maybe Aston Kutcher can help!

SW: On the consumer side, Hotline should take fewer calls. Watns to see the reports shift to the database. Will use the Twitter platform to publicize the database, plus blogs. Will continnue to promote the database because they see it as a benefit to consumers. Expects the database to start filling in March but it may as long as a month to have enough "data" to make the searching function to become "useful".

RW: Plaintiff lawyers, take note! Don't worry, they have . . . .

No questions taken. Apparently there's nothing to discuss. Maybe later . . . . Thanks, Cheryl! We get it.

CPSIA - New York Times Pleads for the Database

Leftist newspaper The New York Times published a passionate call for implementation of the database today. Perhaps they just have the same malady that my wife accuses me of, namely "selective hearing". Selective hearing is a scourge!

Says the NYT: "The new Republican-led House seems determined to roll back those protections. As part of their slash-and-burn continuing resolution, they cut all the financing — some $3 million this year — for a core provision of the safety bill: a database where consumers could report product hazards and the public could check products before buying them."

They carry on to sniff: "Arguments against all of these provisions are part of a standard antiregulation litany. Businesses warn that the hazard database would open the door to bogus charges and lawsuits. They claim that third-party testing of children’s products is proving to be too costly and that some should not be tested at all for things like lead because children are unlikely to eat them. The concern about frivolous lawsuits is a predictable canard."

It's a "canard", guys. How dare you!

Wouldn't it be great if the Times actually listened. Instead, they are just a mouthpiece for the neurotics: "And there is a lot of lead out there. Since the new law has passed, the Consumer Product Safety Commission has issued 26 recalls because of lead paint in toys . . . . The recall in 2007 of millions of hazardous children’s products imported from China proved that a gutted safety commission couldn’t do its job. Why would anyone want to make that same mistake again?"

Throwing us a bone, the Times allows that it might be okay to change the law . . . a little bit: "Some provisions of the safety law could be tweaked. For instance, there may be ways to help the smallest of toy makers gain access to low-cost lead testing. There might be a way to exempt products from testing if they very clearly do not pose a lead-related hazard."

This kind of reporting or opining from the Times makes it clear that the "war" is not nearly over. There are still substantial pockets of misinformation, and sadly, the politicized atmosphere surrounding the issue of "safety" remains profound. For a shrinking industry like newspapers, there is little choice but to find or create issues that sell papers. I don't think the Times feels its franchise will be served by noting that things are better or assuring people that the manufacturers are making legitimate criticisms pf this cherished law. Who needs a paper to tell us we're okay?

The beat goes on.

CPSIA - ICPHSO Update on Strategic Plan Panel Discussion

Next up (after audio problems are "fixed") is the panel discussion on the Strategic Plan. The panel includes:
  • Ken Hinson, Executive Director (moderator)
  • Matt Howsare, Chief of Staff to Chairman Tenenbaum
  • Cheryl Falvey, General Counsel, CPSC
  • Jay Howell, Director, Hazard Identification and Reduction, CPSC
  • Richard O'Brien, Director, International Programs and Intergovernmental Affairs, CPSC
  • DeWayne Ray, Dep. Dir., Hazard Identification and Reductions, CPSC
  • Marc Schoem, Dep. Dir., Office of Compliance and Field Operations, CPSC
  • Neal Cohen, Small Business Ombudsman, CPSC
  • Scott Wolfson, Dir., Information and Public Affairs, CPSC

Update on rulemaking (CF): Final rules issued in 2010 - crib rule, database rule (launching on March 11), "Children's Product" rule and the civil penalty rule. Also, the mandatory recall rule, infant walkers and bath seat rules.

Draft rules: bike standard, two 15(j) rules on substantial product hazard list (drawstrings and hair dryers), component rule, 15 Month Rule and bassinets.

Rules coming up: cadmium rule (deferred for six months), toddler beds, lead paint and HD-XRF test methods, bed rails, bunk beds, swings, bicycle rules, testing and certification rules, 15(j) rules, 100 ppm lead standard, and notice of proposed rules on play yards and another "safe sleep" initiative category.

[One thinks that after they regulate bunk beds swings, bikes and so on that all the fun will be gone from childhood, bringing to mind an effective cure for cancer (killing the patient). Well, at least kids can still play with rocks . . . . OMG, rocks have lead in them!]

JH: They intend to double the number of rules in place in 1990. [Nice! More rules, more safety!] Rule-making activity is "abating" but have a growing compliance and enforcement workload. The burden is "shifting" to the compliance team. Working with all stakeholders to make sure they are compliant. [Safety is not the word used but instead "compliant". The notion is that compliance is tantamount to safety. Anyone want to discuss this topic?]

Why did the agency take such a "collaborative" approach to the Strategic Plan? MH - The "comprehensiveness" of the collaborative process was incredible. Went through all sorts of "painstaking" efforts to interview so many people in this room. [Perhaps Matt is referring to Raachel Weintraub - who else needed to be consulted, after all?] The Strategic Plan reflects the "consensus" view of the agency's strategy. The "collaborative" process was designed to guarantee "buy-in". The Chairman's focus under the Strategic Plan is the preventative portion. Spoke of Neal Cohen's area as a focal point. [There's an insight - we small business people are the problem! Thank heavens Neal Cohen can educate up.]

MH also points to "boots on the ground" in China as another feature of the CPSC's efforts to prevent disaster. He did not say what kind of boots those might be. Jackboots?

Tell us about small business ombudsing, Neal! NC: Start by listening. There's a lot of confusion, and there are ways to use the work done by the CPSC "to your favor". [Hmmm, I'd like to know more about that.] NC: I'm not a policy maker at the agency. [RW - that's the rub, ain't it?] NC: I am spreading the word about the problems within the agency. NC has his own website ( Putting out "plain English" documents to explain the law and the rules. Three tips on compliance: (a) know your product and your supply chain, (b) proactively educate your suppliers, and (c) don't "assume". [This is sound advice. It doesn't protect you from anything, however. Were you to follow Neal's advice, it would count for NOTHING if you get recalled. It should but it won't.]

All kidding aside, people have nice things to say about Neal. What he can achieve remains to be seen, however. I have yet to hear about him making problems go away. Most of the problems people are dealing with are nonsense, so if he could move heaven and earth, I think I would start to hear about him going to bat and getting something done for these beleaguered little companies.

International (RO'B): No sign of harmonization efforts in Mr. O'Brien's presentation. He is leading the effort to get other world regulators to join us in our safety mania.

Scott Wolfson's turn - "What about consumers and how do they fit into this?" SW: Pool Safely Initiative shows what we can do if we have money to get our messages out. [How have injury statistics changed, Scott? WS: Won't know for years. . . .] Concerned about "sustainability" ($$$). We're hitting the road to get the message out. Have built a network to get info out. Working on a new logo.

Scott did not update us on Aston Kutcher. Maybe during the Q&A . . . .

RW: This all sounds good as far as it goes. Of course, he does not discuss the impact of OTHER decisions his office makes, like communication of "hazards" like cords on baby monitors or recalls of Shrek glasses. It's all well and good that the CPSC has a couple billboards up about pool safety, but what about the mania on lead and their communication of those hazards?

Why does the CPSC need to train manufacturers? Why is it the agency's role? JH: There are various levels of sophistication out in the marketplace. To drive the prevention effort, need to make sure manufacturers understand the rules of the road. [RW - this is one of my original suggestions for the agency in my first speech on the CPSIA. Failures in outreach is one of the main causes of the storm behind the CPSIA.]

JH: We are focusing our efforts around priorities to increase impact and to avoid dilution.

Jay Howell usually sounds pretty sensible. It would be great if the agency sounded more reasonable more of the time. Perhaps Jay can be an agent in that process.

MS: Trying to reduce the time taken to negotiate recalls. [RW: Two-edged sword here, since the concept of due process is flying out the window with the justification that they are "saving lives".] MS: If you're right, you're right - just convince us. Also need to get information out to consumers quicker.

RW: This is agency policy talking, probably not Marc Schoem.

SW: We are going out on all platforms, like Twitter, news media, Facebook, blogs - multiple times. MSNBC is doing a monthly "round-up" of recalls.

There was time for only two questions from the audience. Filibuster! I got to ask one of them. Here's my question:

"I have testified five times at the CPSC, three times at your invitation. I have repeatedly told you that your policies and the CPSIA together are killing small businesses, killing products and killing markets. Last week, the bicycle industry testified that large bike manufacturers have reduced their product lines and small companies have left the market. Given this testimony, what do you think the agency's responsibility is to small business and how does the Strategic Plan relate to protecting the right of small business to sell children's products?"

KH: That's why we have had such a collaborative process in the Strategic Plan. We need to identify hose issues and figure out a solution. RW: But we're dying now. KH: We do what we do and violative products have to come off the market.

CPSIA - ICPHSO Presentation on CPSC Strategic Plan

You know they have a strategy . . . .

I am at ICPHSO for the next couple days, reporting from this safety convention "live" for the third year in a row.

As in the past, I am working "live" and off my notes, so take it for what it's worth. I may make some mistakes (which I regret), but heck, this is a blog. According to my critics, you shouldn't believe half of what I say anyhow . . . .

The Opening Session today featured Ken Hinson, the Executive Director of the CPSC. Ken is a relatively new addition to the senior staff of the agency.

Mr. Hinson argues that employment at the CPSC is directly correlated to safety. Reported incidents are skyrocketing, but investigations are declining. This statistic does not capture what the agency is DOING as a result of those investigations, notably.

The agency is "extremely excited" about the product database. One wonders what they are so "extremely excited" about, given the extensive testimony about the problems with the database. Wayne Morris of AHAM testified in Congress last week that when erroneous information is posted, as it certainly will be, there is NOTHING that can be done to remove it from the Internet. He compared the database to a "blog". A blog! I testified in the same Congressional hearing that the effect of the database will be to encourage consumers to NOT communicate directly with us about product issues but instead to post to the database, and since the CPSC restricts our access to this data, it is likely that the database will INCREASE safety risks.

Lots to be "extremely excited" about, indeed!

The CPSC Strategic Plan is now online. I requested to be interviewed as part of the process of developing the Strategic Plan, as I was invited to do, but somehow they failed to call. Hmmm.

Five goals:
  1. Leadership in Safety
  2. Commitment to Prevention
  3. Rigorous Hazard Identification
  4. Decisive Response
  5. Raising Awareness

First goal: Will create annual plans to address the most pressing merging safety hazards. Supposedly will be working closely with stakeholders, you know, like readers of this blog. Okay, not us, but somebody. I bet consumer groups might be on that list . . . .

Second goal: They want us to "build safety into consumer products". Presumably the CSPC thinks this is a new idea because with an ex post facto approach to safety, any injury means the manufacturer screwed up. We're always wrong, thus inviting the government to get involved in what we do to make things "better". As Ronald Reagan said, the most frightening sentence in the English language is "We're the government and we're here to help!"

They're going to give us proactive education on how to design our products more safely and will create incentives to encourage us. I can imagine those "incentives" might be based on penalties imposed and threats made by the agency in recent years.

Third goal: This is the scary one - they will be looking deeply for hazards, like cords on baby monitors . . . . Presumably, when they find a "hazard", well, you know what happens next. They are working on increasing their ability to obtain, analyze and act on information of "hazards".

My problem with this is that the definition of what constitutes a "hazard" has been lost. Perhaps this is a picky point, but they don't have the legislative authority to do whatever they want. They are restricted to work on SUBSTANTIAL PRODUCT HAZARD. In fact, they are limited by the law. Someone should tell them about this.

Mr. Hinson: "This is all about speed." There's a confidence builder for me - hasty judgments are always better by definition.

Fourth goal: The CPSC plans to act fast and "hold manufacturers responsible". It's all about "speed". Again, agency policy seems to be to encourage hasty judgments. Based on industry chatter, this policy does not involve dithering or considering defenses or due process. The CPSC is judge and jury, legislature and executive branch. In fact, often it is a junior and inexperienceds staffer who is judge and jury. See how you like it when you are on the receiving end.

This will be SUPER until all products are finally killed off.

Raising awareness is critical to empowering consumers, so says Mr. Hinson. I question whether empowering them to panic or make judgments based on scant, erroneous or inappropriate data is a really good idea or good public policy. The "good news" is that they have set this plan in motion, so your opinions and mine don't matter.

Fifth goal: The raising awareness goal certainly incorporates the wonderful new database. Likewise, Neal Cohen and the small business liaison office is part of this plan.

Btw, raising awareness is a really good goal for the agency but if it doesn't know what a hazard is, or have good processes to encourage trust among manufacturers, they can do a lot of damage with their clean heart and good intentions. Sucking up to left wing politicians and consumer groups does not necessarily produce good public policy. The agency might consider taking more seriously criticism of its activities and actually taking on board suggestions by knowledgeable stakeholders, including ex-CPSC staff.

Wednesday, February 23, 2011

CPSIA - Congress and CPSC in the Clouds . . . .

I have heard from an old friend today, a resale shop owner. The store owner is as frustrated as anyone by the CPSIA and has some interesting observations. The store owner's point is that it is utterly impractical for store personnel to be up-to-date on recalls or to manage recall issues on a day-to-day basis. Think recalled baby monitors with "remedies" like a new warning label. Think also of the national chain of resale shops that told us that many of their MANAGERS are paid $8 per hour. Can you get a sense of the brilliance of Congress' master plan yet?

The store owner sent me a picture worth a thousand words:

The store owner: "The photo I've attached is of my six-inch binder of printouts for every recall on children's items since the early 90's. The papers on the floor are the new recalls since September 2010. I printed those last week, so I need to go back and print the newer ones. I take this binder to all my events and strive to search it thoroughly to keep recalled items out of our events. I'm going shopping today to pick up a second six-inch binder as I'm obviously going to need it." [Emphasis added]

Sounds very practical. I am sure Scott Wolfson and Sean Oberle have some useful tips for this store owner on how to manage all this data. It is worth NOTING that rifling through 20 years of CPSC recalls is not the store owner's main business - their business is selling gently-used merchandise - but it probably seems like it nowadays.

The store owner is also a victim of unscrupulous "gaming" by a competitor who seeks to capitalize on fear and the ambitions of local politicians to put pressure on him/her. The store owner: "I'm no longer comfortable posting publicly about CPSIA since a local children's resale full-time store owner has told several of her shoppers that she's planning to call the [local] Attorney General to come investigate my next seasonal consignment event to be sure I'm in compliance with CPSIA. Since I don't have XRF vision, there is no way to prove I'm in compliance with the instructions to not resell anything over the lead limits, despite the fact that I'm not required to test. I still don't have a clue what do to about phthalates, but I've banned all bath books, bath toys, & teething toys from our events anyway." [Emphasis added]

There's a stimulus plan for you. . . .

Did you catch the store owner referring to any topic relating to safety, such as injuries or concern for the health of children? Nope. It isn't the concern of the competing store owner or the local Attorney General, either. This is about officious bureaucracy, paperwork for paperwork's sake, all to satisfy a neurotic anxiety without a basis in FACT.

I used to ask "Where are the victims?" The zealots in the last three years have been able to produce exactly ZERO injured children from lead or phthalates in children's products. So I guess I have to nominate my friend the store owner - a prototypical victim of this law.

Job well done, Congress and CPSC!

Tuesday, February 22, 2011

CPSIA - Come On, Sean, Get Real!

Sean Oberle took issue with my analysis of the Summer Infant recall of baby monitors tonight in an essay in the Product Safety Letter. In my recent blogposts, I noted that sale of the Summer Infant baby monitors can't be resold without their kit of the label, the new instructions and the clips. True fact. As a practical matter, this is essentially a ban of resale of this item because in the REAL WORLD, resale shops do not have the time to lavish on researching this kind of nonsense.

Does ANYONE think a resale shop is going to verify that a baby monitor has the right sticker on it? What planet are you from? They WILL, however, note that this item has been recalled. In the mist of time, the reason WHY it was recalled will be long forgotten. Again, who has the time to figure all this out? Maybe Sean Oberle and Scott Wolfson, but the rest of us won't do it.

That the items can somehow be resold legally is simply a technicality. Ask any resale shop.

As for my "confusion" between the "reason" for the recall and the "remedy", I believe I was not confused at all. For one thing, the supposed "remedy" is no remedy at all. A warning label about the cord is superfluous by any definition and absurdly ineffective to prevent further harm. The "reason" for the recall has nothing to do with a hazard related to this item. It may relate to a proactive step recommended by the company's lawyers, given the likelihood that they have been sued over the two unfortunate accidents. I stand by my position that this hazard falls into the category of parental supervision, not a product "defect". I may not be alone in this view, to judge by the hundreds of comments on this MSNBC article.

More fantastic is Mr. Oberle's characterization of the recall and how "voluntary" it was. I have no person knowledge of this situation, so perhaps he is right. Then again . . . rumors of CPSC coercion on this kind of thing are rampant. Threats of penalties, preemptive press releases and possible litigation have been rumored in many cases. Ms. Tenenbaum is not above sabor rattling in speeches, either. Think of last year's ICPHSO keynote speech, for example. We have received at least one threat from the CPSC which I have thusfar restrained myself from discussing in this space. It's very real. "Voluntary" is in the eyes of the beholder.

I must also say that I don't see the benefit that the CPSC brings to this party IF the recall was "voluntary". If this was REALLY the company's idea, why does the CPSC have to sign off on it? Why is the CPSC in a better position to figure out how to best resolve this informational issue? After all, Summer Infant had 1.7 million reasons to get this right (plus an unknown number of lawsuits). I don't buy the idea promoted by Mr. Wolfson in the Chicago Tribune's hyperbolic article on pool drains: "CPSC spokesman Scott Wolfson declined to comment on AquaStar's actions. In general, though, he said: 'A company is not allowed to take unilateral action that is intended to fix a safety problem with their product without reporting and coordinating that action with the CPSC.'" Scott, where does it say that, precisely?

Even more to the point, why is this a "recall" anyhow? The CPSC could have avoided the entire issue by labeling this event an "alert". There would be no implications for resale shops had they chosen that path. Was it REALLY the company's idea to RECALL these items? Were they offered an "alert" but refused? Oh, sure.

At some point, I hope the CPSC will take more responsibility for its actions, rather than justify whatever they choose to do. Mr. Wolfson may have an answer for everything but that doesn't make the agency's actions right, fair or appropriate. The many comments on the MSNBC article indicate that no one is being fooled. Recall upon recall upon recall is alienating the public, NOT making them feel safer.

Come on, Sean, get real. The CPSC can raise its game, and as a member of the Fourth Estate, you can push them in that direction. I am not the enemy here.

Monday, February 21, 2011

CPSIA - Mothering Magazine R.I.P. - Thanks, CPSIA!

Last week, Mothering Magazine announced that its print edition was kaput. [Thanks to the HTA for alerting me to this event.] This 35-year-old publication ceased publishing as a magazine for all the usual reasons . . . and one more: "Many of our advertisers have been hard hit by the economy. Toy manufacturers have been burdened by the cost of complying with the new regulations of the Consumer Product Safety Improvement Act (CPSIA). Many of our sling and baby-carrier advertisers experienced declining sales or went out of business altogether in 2010 as a result of loss of sales due to the Consumer Product Safety Commission (CPSC) recalls of infant carriers."

More anecdotes, but sadly no evidence. Just another dead enterprise blaming the innocent and innocuous CPSIA for its troubles. I wonder if there's a connection there somewhere . . . .

CPSIA - New York Times Notices the CPSIA

The New York Times this evening gave some coverage to last week's hearings in an article entitled "Child-Product Makers Seek to Soften New Rules". Reflecting the usual bias of the Times against business, the article intones: "Emboldened by a Republican majority in the House of Representatives, manufacturers of toys and other children’s products are making a last-ditch effort to quash new safety regulations that they say are unfair or too onerous . . . . The manufacturers are also trying to scale back new regulations, drafted by the commission, that would require third-party testing to determine the safety and lead content of children’s products. They have found a receptive audience among House Republicans." [Emphasis added]

So let me ask you, does it appear that I am "emboldened" by the Republican majority in the House? Is that accurate? As I recall, I began working against this excessive and irresponsible legislation in September 2007 and began my "war" with intensity when I was invited to present at the CPSC Lead Panel on November 6, 2008. That was more than two years ago, long before the "emboldening" Republican majority. In fact, I worked hard in the last election to put the Republican majority into office.


Because no one on the other side of the aisle would listen. What the NYT noticed is that someone is listening . . . finally.

Am I trying to "quash" the legislation? I think that's an unrealistic goal and have never asked for it. I have stated repeatedly that the legislation has few achievements to boast about and that it is defective as drafted (can't be fixed). It is also killing jobs, companies, markets and products. It needs to go but, as noted, I think that's unrealistic. I think fixing it is the best we can hope for.

And I promise that our efforts are not "last ditch". We're not going to be done until the CPSIA is fixed.

The article goes on to note that at least one Democrat thinks the CPSIA stinks: "Other lawmakers, including at least one Democrat, Representative John D. Dingell of Michigan, suggested that new regulations requiring third-party testing of all children’s products for safety and lead were too broad and needed to be revised." John Dingell, who's he? "At least one Democrat . . . ." Ummm, Mr. Dingell is not only the longest serving member of Congress in the history of the United States but he also happens to be the longstanding Chairman of the House Committee on Energy and Commerce who also sponsored the legislation to create the CPSC in 2972. I think he is something more than just another Democrat - he is a major historical figure and a person of great standing in this matter. When he came out against the CPSIA on Thursday, he broke with Waxman and stood up for the TRUTH.

The Times gives the consumer groups the last word: "Representatives of consumer groups, meanwhile, are fretting. They said they were worried that the tougher standards they fought for, and seemed to have finally won, were now in jeopardy. 'You have folks who are seeing that there is a chance to undo consumer protections that they never liked in the first place,' said Ami Gadhia, policy counsel for Consumers Union."

That's true - we never liked the law in the first place. It is a massive waste of money, is hurting markets, companies, jobs and kids, has mired the agency and industry in a three year mud fight and isn't making anyone safer.

It's time to end the posturing and the story telling. We need to fix this awful law before it kills more companies and more products. How many companies need to die before Congress and the New York Times gets the message?

CPSIA - Watch Out, Resale Shops! The CPSC is Watching . . . .

An alert reader pointed out today that the 1.7 million "recalled" baby monitors (the ones that need a new sticker) can't be sold at resale shops anymore. After all, they have been recalled so they are verboten now. Presumably they can only be sold accompanied by their anti-recall kit of the fancy new label restating the obvious, new instructions telling parents to come inside during rain storms and the clips (gotta have them clips!). As a practical matter, this will be impossible for resale shops to manage, so I hope resale shops everywhere are pulling these baby monitors to keep America safe.

In fact, the "hazard" that these devices present is common among all baby monitors so I certainly hope those shops stop selling all that merchandise immediately. Alert! Alert! No more baby monitors! And the hazard is found in everything with a cord that might be used near a crib - so you better stop selling humidifiers, lights, radios and the like. As the G-Men used to say, "Stop or I'll shoot!"

Don't forget, the CPSC has the U.S. Attorney ready and willing to put you out of business to protect . . . the . . . children. What would we do without those guys to keep us so darned safe?

And there will be penalties a-plenty, too, count on it. Jail time for selling a baby monitor? Well, we'll have to see about that.

If you live the clean life and stop selling anything remotely connected to children, these issues won't be a problem for you. Something to think about . . . .

I meant for the stores. Certainly not for Congress.

CPSIA - CPSC Recalls Baby Product for Missing Warning Label

Striking a new low for the Nanny State, the CPSC last week recalled 1.7 million baby monitors/cameras for a missing warning label.

Let me repeat - this recall was over a missing warning label.

There is no sign from the announcement that the warning label was required by law - this is apparently an ex post facto requirement dreamt up by the CPSC.

Anyone ever heard of cost/benefit analysis in the U.S. government???

So what was the hazard? As with many baby product recalls, there were two deaths of infants involved. Two children, one six months old and one 20 months old, strangled on cords attached to baby monitors made by a company called Summer Infant. As Summer Infant notes on its recall notice, there have been seven strangulations since 2004 involving cords on baby monitors placed in or near cribs, but only two involved Summer Infant products. This is NOT a product recall, as they clarify - they are providing new stickers, a new guide and some clips to hold cords. It was a "voluntary" recall, or so the company says.

Let me get this out of the way: I am as regretful as the next person about the tragic death of two toddlers. I do not discount the significance of that loss.

However . . . dangling cords near a crib is a bad idea that most parents recognize. This is not specific to baby monitors, either. Check out the CPSC's illustration of the hazard:

This is the same hazard as ANY electrical device near a crib - a light, a radio, a humidifier, you name it. This is NOT a specific hazard of the baby monitor in question, nor of any specific electrical device. One wonders why the CPSC chose to recall this product or why they called their action a "recall".

It is unfortunately elemental that cords near a crib can maim or kill. This is no different than the hazard presented by the cords on blinds near a crib. It is very sad that such terrible accidents have happened seven times over eight years. That's seven unnecessary tragedies no doubt caused by mistake or simple error. Nonetheless, it is NOT the responsibility of the manufacturer or the State to guarantee good luck or good parenting. Some hazards are for the parents to manage. At a certain point, individual responsibility must be asserted.

As a manufacturer, the fiat of a federal agency issuing a RECALL for a missing warning label is terrifying, especially under these circumstances. Of course, consumers are becoming jaded by endless recalls, too. As the agency loses ALL perspective on which hazards deserve regulatory attention (everything seems to be a hazard these days), and blaring headlines numb everyone to the signficance of recalls in general, it is hard to resist cynicism. The CPSC with all the good intentions in the world . . . is starting to make a mockery of itself.

It's a mania. Somebody help us.

Sunday, February 20, 2011

CPSIA - Chicago Tribune and Dick Durbin Show Us How to Create a Crisis

On the morning of February 7, my dog brought in the Chicago Tribune and I almost asked him to take it back to the driveway. Blaring at me was the front page headline "Danger lurks in pool, spa drains". This article was a monster - an entire page (all five columns). Apparently alerted by a "tipster", a Tribune "investigation" discovered that some pool drains designed to meet the Virginia Graeme Baker Pool & Spa Safety Act (part of the CPSIA) requirements had apparently failed certain lab tests. Notably, there have been no reported injuries as a result of this "defect", although one manufacturer asked dealers to return stock for replacement "out of an abundance of caution".

Why does no injuries merit a full page article? The story continues. . . .

Senator Durbin of the great state of Illinois must have read the same article, because he immediately sent a letter to the CPSC alerting them to this hazard. More precisely, alerting them to this article. I am picturing him dropping his toast in horror. What an efficient clipping service. [Two words for the Senator: "Google Alerts".] His obvious and immediate concern is commendable, if you consider reading a newspaper article adequate due diligence for one of our nation's leaders. Mr. Durbin notes the outcome of his intensive research (reading the newspaper): "This appears to have allowed dangerous drain covers to continue being sold and distributed. The issues highlighted by the Tribune story are very concerning and raise serious questions, not only about dangerous drains but also about accreditation of testing facilities on products generally."

Next, the Tribune duly reported that Senator Durbin had performed his clipping service for the CPSC, thereby "legitimizing" their investigation. Case closed! The Chicago Tribune to the rescue. . . .

The Tribune must be right if Dick Durbin drops everything to send a letter . . . right?

Ummm, well, let's take a deeper look. [It's possible Durbin only read the headline. That's enough, right?] The Tribune investigation was started by a "tip". Someone with an interest in the drains and their effectiveness. Who might that be? I don't know myself, but there are rumors. We need not speculate on the rumors but we can certainly look at the article itself. In the article, the Tribune quotes an "expert" on pool drains, Paul Pennington. Did you know there was such a thing as a pool drain expert? Mr. Pennington intones: "Some child is going to die." And he's an expert! Sounds bad, very bad.

Mr. Pennington is Chairman of the Pool Safety Council. The Tribune notes: "Paul Pennington, chairman of the nonprofit Pool Safety Council, said he has sent 73 e-mails to CPSC and standards officials, pleading with them to do something about unsafe drain covers since the new law took effect in December 2008." What a guy, tirelessly fighting for innocent children.

But who is the Pool Safety Council? The Tribune explains: "His group is largely funded by the makers of devices that shut off a pool's pump when a dangerous vacuum forms, like a circuit breaker turns off power when it senses an overload." In fact, Mr. Pennington is the President of Vac-Alert Industries, Inc. Hey, here's another "shocker" - Vac-Alert has patents on vacuum alerts used in pools (patent nos. 6,591,863 and 5,991,939).

Conflict of interest? Nah! The Tribune again: "Why did Pennington think the covers were dangerous? As soon as the new drain covers hit the market in 2008, pool owners who had vacuum-release devices complained that their pumps were turning off after they installed the covers. Pennington, who owns a stake in a vacuum-release system company, investigated and concluded that the new covers were allowing the hazardous suction forces they were supposed to prevent. Pennington said his concerns were ignored by the federal government and by the standards committee that writes the testing rules for the drain covers. That committee consists mostly of people who work in the pool and spa business."

Hmmm. So you have a newspaper trying to sell papers by "saving" the populace, an entrepreneur who is leading the "fight" over pool drains with patented technology ready to replace those drains, an ambitious local politician interested in making headlines while supporting the hometown paper that helped elect him, and what do you get? The feeding frenzy that gave birth to the CPSIA. Everyone's a winner . . . except for the businesses and markets caught in the middle.

Makes you anxious to vote again, doesn't it?