Sunday, March 13, 2011

CPSIA - Listening but Disagreeing - or Not Listening At All?

We know that the CPSC plunged ahead with the database on Friday despite the outcry of many industry stakeholders. Among the protesters was the National Association of Manufacturers, not exactly a lightweight organization. Industry protests fell on deaf ears. It goes without saying that the resistance of the two Republican Commissioners (who drafted their own database rule) aligned with industry objections. None of this apparently mattered.

As if to make the point that the CPSIA database will be misunderstood, misused and dangerous, the New York Times announced the arrival of the database in an article entitled "Consumer Agency to Post a Database of Unsafe Products". Nice work, New York Times! The information in the database is unverified and in many cases will NOT be true. There is simply no way to conclude that the products referenced in the database are "unsafe". Good luck convincing anyone of that now.

It is embittering and frustrating to be so flagrantly disregarded. There seems to be so much at stake, and the fix was seemingly so simple. No one asked to kill the database, just protect innocent businesses from damaging inaccurate postings on a website enjoying the prestige of a federal safety agency. Even the Pompeo Amendment was promoted as "hitting the pause button". It is hard to fathom why dialogue was so impossible to start. Actually, after a few years of this war, it is not hard to fathom at all.

I know we were rejected - it is hard not to conclude we were ignored completely from the beginning.

My involvement in this issue began when I was asked to testify before the Commission on the issues relating to a searchable database of product incidents. Actually, I had been on record of objecting to the database even before the CPSIA became law (you can see excerpts of letters I sent in my response to Slate). I was called by Matt Howsare, then counsel to Inez Tenenbaum (now her Chief of Staff) who asked me to fly to Washington to testify. He told me that they "needed" me. Wanting to be helpful and to pitch in when asked by the agency (I was charmingly naive at that time), I agreed. I posted video of my testimony in this space, and as you will see, I was cut off by Ms. Tenenbaum. Get it? I was asked by her staff to present because they needed industry testimony, and when I gave my remarks, they cut me off - one suspects they had heard enough . . . .

This experience left me disgusted in a way that, frankly, hasn't worn off.

Later, the agency called for a two-day workshop on the database. Owing to the discourtesy of my treatment at the hearing and because of their apparent utter disinterest in my views, I declined the opportunity to continue banging my head against the wall by attending their database confab. Later, as we know, the Democrats released a 248-page rule that greatly expanded the database rule from Congressional intent. Written as though edited by Consumer Federation of America, the rule produced howls of protest, but as has been the case thusfar in this CPSIA saga, it mattered not. The three Dems voted as they would have in the absence of any protests and the defective rule was adopted.

I continue to believe that the criticisms of the rule were (and remain) legitimate. That is, they were rational and reasonable, and lent themselves to reasonable and understandable resolution. The Dems did not make any effort to address these reasonable concerns, rejecting them out of hand.

This pattern of ignoring stakeholders while calling for comments and participation has been a hallmark of the Tenenbaum era. I am trying not to take it personally but wonder how we can be so consistently "wrong". The Dems barely pause to discuss industry objections other than to simply reiterate that their policy objectives are more pressing. Are we so obviously wrong that our objections don't merit an answer?

I have trouble reaching that conclusion. I have made the same points consistently over and over, yet I cannot put my finger on a single response to my objections other than outright rejection. There is a question of good faith here. The rejection of my company's PROOF of a material error in the one filing made against one of our products in the soft launch of the database seems to call into question whether the agency can ever be trusted under this group of administrators. The response by SENIOR STAFF at the agency that the consumer in question had stated a "risk of harm" when his/her accusation was PLAINLY WRONG means that even the English language is being corrupted in service of the database. How can trust exist in an environment like this?

Ask around among industry stakeholders. Trust is GONE. No one trusts the CPSC these days.

Looking back on the database saga, it makes me all the more certain that I am doing the right thing pushing back against these people. They are not operating in good faith and have no apparent concern for the well-being of our company, our employees or the countless companies, schools, families and children who depend on us. This cancer on our markets must be stopped. We have another election coming up and I will be working hard to put more Democrats OUT OF WORK. They have no one to blame but themselves. They won't listen . . . .

So we need to get rid of them.

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