Tuesday, May 10, 2011

CPSIA - Quick Observations about the New CPSIA Amendment Draft

The revised amendment of the CPSIA (oddly titled "Enhancing CPSC Authority and Discretion Act of 2011") published today is due to be "marked up" by the Subcommittee on Commerce, Manufacturing and Trade on Thursday.  This amendment has clearly been "tuned" to appeal to the Senate, not to fix all known issues under the CPSIA.

That said, the Republicans have been stalwart in their attentiveness to the business issues caused by the CPSIA for the last three years.  They had every opportunity to throw us under the bus and turn to more productive undertakings.  Certainly that was the strategy the Dems tried to implement.  The Republicans are to be congratulated for their commitment and loyalty to mission.  We would be in the soup but for them.  The Dems remain the roadblock even today.  It's very sad - not a one of them has ever defected or demonstrated an ability to think for themselves.

To properly review this draft requires redlining and comparing it in detail to the existing law.  I don't have time tonight for that tedious exercise.  Here is what I have been able to glean so far:

a.  Definition of "Children's Product".  No age limit added to the definition of "Children's Product".  This is a "punt" by the Republicans.  They deal with the issues relating to the problematic breadth of this term in other ways.

The definition still plays off subjective elements like the "intent" of the manufacturer.  The draft clarifies that the intent has to be for USE by a child, which will help the Promotional Products industry and certain other innocent victims of this stupid law.

b.  Lead-in-Substrate Standard.  The standard has been restated from ppm to percents.  While this does not change the absolute levels of lead in the law, it DOES reduce the absurd precision of a ppm standard.  For example, under the old standard, 301 ppm lead levels would fail the standard, but under the reformulation, it would pass (rounding).  This reduces the randomness of the standard somewhat (49 ppm cushion).

SuggestionThe authors of this draft are on the right track, and this is a clever way to provide a small amount of cushion for businesses attempting to be good citizens.  Let's hold that thought - and build a really fair approach to tolerances and cushions.  The marginal physical impact of contact with lead-in-substrate between 300 ppm and 600 ppm is nil.  There are no documented cases of lead poisoning from lead-in-substrate at ANY LEVEL anywhere ever.  When a manufacturer makes an effort to reduce lead levels, the levels fall precipitously but not always predictably or repeatably.  If the law's purpose is to incentivize good corporate behavior, why not set a higher limit that can't be hit accidentally, and patrol it carefully?  This is the original idea behind the 600 ppm lead-in-paint limit and it worked well (the agency's enforcement and industry outreach efforts didn't, however).  Why not take the same approach, since the new draft ACKNOWLEDGES the power and authority of the regulatory technique?

The 100 ppm standard becomes effective one year later now, in August 2012, but the application of the standard has been trimmed.  The standard will now only apply to Children's Products for kids six years and younger, and only to parts that can be sucked and chewed (not just licked).  All other parts are subject to the current 300 ppm standard (.03%).  This means that some relief is coming on the prospect of the 100 ppm standard.  I consider this decision political, not policy - again, no one has yet to identify a SINGLE VICTIM of this purported hazard.  This term is designed to be passed, not designed to be good policy.

The standards will now apply prospectively - so your inventory will be safe.  This term was requested by the CPSC Commission so presumably it will not be controversial.

c.  "Functional Purpose" Exemption Restored.  The useless and almost mathematically impossible "functional purpose" exemption process advocated by Mr. Waxman and Chairman Tenenbaum have been added to the amendment.  This may be good politics ("we are listening to you!") but will never be used by anyone ever.  A waste of space.

SuggestionDon't even bother reading it.

d.  Gift to the ATV'rs, Bicycle Manufacturers, baseball bats manufacturers - but NOT Apparel.  The standard for metals in "outdoor recreational products" has been reset to match the levels permitted in the current stay (see 16 CFR 1500.88).  Battery terminals are exempted . . . but only on outdoor recreational products.

ObservationThis is yet another political choice that really does not stand up to reason.  For one thing, this rule permits the use of brass - lead is exempted up to 4% by weight (and unlimited in bronze).  Unfortunately, unless you make an outdoor trombone, this term is not useful to you.  There goes the school band!  Likewise, ballpoint pens are not exempt unless they are considered an "outdoor recreational product".  Ummm, Congress, is brass dangerous or is it safe?  If it's safe, it's always safe, not just outside in the sunshine.  Likewise, battery terminals are not just safe outdoors - I just don't get this one.  Having had the insight that we can live with normal lead levels in metal alloys, WHY is it necessary to restrict this to outdoor products.  Is it really necessary to mask your efforts to help the bike, motorcycle and ATV factions?  Why not use your basic insight that these metals are tolerable AND GIVE EVERYONE A BREAK?

At some point, in this policy fiasco, politics needs to be suppressed for the greater good of critical markets we have crippled through foolish legislation.  Let's get the job done right this time.

e.  The Prior Draft's Relief for Used Products Appears Intact.

f.  "15 Month Rule" is now Optional.  The CPSC is no longer under an obligation to go through a rulemaking process to satisfy the original requirements of the 15 Month Rule.  Let's hope they schedule a looooooonnng vacation.  The new draft also adds a cost-benefit analysis and "least possible burden" requirement to any rule made in this vein.  That means that the current draft of the 15 Month Rule is kaput (assuming this draft becomes law. . . ).

g.  Third Party Testing Requirements Restructured.  This one's going to be controversial - but only because of the political considerations, not because anyone has any data or proof that this change is "bad".  The new draft says that testing with a third party lab is OPTIONAL now.  Certifying compliance remains mandatory.  The CPSC may (by rule) mandate testing for particular products or product classes subject to certain restrictions, including cost-benefit analysis and a "least possible burden" requirement.  An annual small quantity exception of 10,000 units will help small and medium-sized manufacturers further reduce testing and compliance costs.  The law mandates a stay of enforcement until the agency goes through all the required steps.  [Be still my heart, do you think this term would ever pass through the Senate???]

[I skipped the rules on Durable Products Rules and FDA Regs.]

h.  Phthalates Standard applies only to Accessible Parts (Sucked and Chewed), but Prospective Application was Removed.  i believe the judgment was made that this standard is old news and making it prospective would not be worth the fight.  If you are sitting on significant inventory affected by this choice, you may wish to raise your hand (at long last).  No age limit was added here, so toys for 10 year olds are still subject to this wasteful rule, and no preemption language was added to beat back CA law.  So this is only a partial improvement.

i.  CPSC Has New Power to Exempt Products from Tracking Labels.  But That's It.  You are still required to waste your money on useless and unproven tracking labels.  Jan Schakowsky thinks they're just like "sell by" date labels on milk cartons, so we should all be glad.   Right???

j.  The Prior Draft's Revision of the Database Appear to be Intact.  Rumor has it that Mr. Waxman signed off on these changes.  I guess even the Dems recognize that the "protections" provided by the CPSC's rule were insufficient.  No more titillation???  Time will tell.

[There are some technical provisions at the end that I also skipped.]


Anonymous said...

what about retroactivity?

Ben said...

The mouthing standard still bans rhinestones.

What's the aversion to exempting rhinestones in the amendment? They are clearly not dangerous wrt lead.