Sunday, July 31, 2011

CPSIA - The House Answers with its Own (Bipartisan) Suspension Bill

The Republicans and Democrats on the House Energy and Commerce Committee have apparently suddenly agreed on a new 29-page draft CPSIA Amendment.  This is a modification of ECADA and is probably the best that the House Republicans could extract from the Dems.  It is also part of a game of chicken between the House and Senate on how to amend the CPSIA.   The bill is sponsored by Mary Bono-Mack and G.K. Butterfield, meaning that it is a bipartisan bill.  It will proceed to the House floor for a vote tomorrow, cannot be amended and will only  pass by 2/3 majority vote.  It could be a voice "consensus" vote and will likely pass without opposition given its bipartisan character.

A quick review of this amendment:

a.  100 ppm lead standard is made prospective.

b.  Functional Purpose exception process remains part of the amendment.  [I have written extensively on how this provision is a sham.  I haven't changed my mind.]

c.  ATV exception is included.  This is death knell for any hope of later CPSIA amendments. This signals the end of the road.

d.  The terms of the bike stay are made into law.  They also get a really sweet deal - as far as I can tell, they don't have to test metal components anymore.  That provision is buried on page 19 in the book exception section.  All the better to sneak it through.  Nice for them . . . but no word as to why we must test metal components.  Too bad for us, I guess. . . .

e.  Resale goods exception is included.

f.  Testing rules are now based on "representative" samples, not "random" samples.  The rest of the provision is based on the Eshoo amendment requiring further "inquiry" on reducing costs of third party testing.  The Eshoo model still requires "assuring compliance" with the lead standards.  This is the big dollar issue, as everyone knows, and is the one issue that touches everyone, all the ordinary businesses.  This provision is a punt and offers little prospect for future relief. 

This provision is a huge time-waster and will never result in anything useful because the standard for relief is in the context of "assuring compliance".  It also calls for more business "instruction" like that found in the current draft of the "15 Month Rule".  [The status of the 15 Month Rule is not apparently addressed and may still emerge from the agency to bite us later this year.]  The authors of the 15 Month Rule draft rule know exactly zippo about the real world and if we are ever supposed to follow their sage dictates, the losses will mount . . . fast.  In any event, this Commission will never feel comfortable with anything less than prophylactic assurance, injury statistics be damned.  I hate this provision because I don't trust the CPSC Commission under current leadership.

Notably, this provision does not stay compliance with the testing rules due to go off stay at the end of the year pending resolution of the Eshoo inquiry.  Congress has not dictated that the stay be extended, and believe me, it won't be.  The reasoning behind this provision escapes me.

g.  Small batch manufacturers receive minimal relief ("reasonable methods to assure compliance").  The real sham part of this is the tantalizing prospect that the CPSC will actually deliver on this demand for testing relief.  Call me a cynic, but they have received testimony out the wazoo for three years on this topic, and have yet to find a way to "help" the remaining micro-businesses in the market.  And the reason we should believe they will make a afety testing discovery in the future?  Your guess is as good as mine.  They won't.

Small batch manufacturers have to register before benefiting from this wonderful "relief".  The registration requirement is deeply offensive to me and really shames Congress and the agency.  What did these little companies do to deserve this treatment?  What makes the House (Dems) think this is a good idea?  It smacks of 1984 and is utterly detached from any rational assessment of risk.  Do small batch manufacturers have an exceptionally bad safety track record meriting this kind of surveillance?  Of course not.  That they would accept or even support this treatment is shocking to me.  In any event, no relief is offered to any company with gross revenues in excess of $1,000,000, so it's really just for the benefit of the really micro micro-businesses.  It won't benefit me even for small unit volume items we currently sell - our top line makes us ineligible for any possible relief.  Happy registering, little guys!

h.  Ordinary books and printed materials get a pass.

i.  Durable Nursery Products standards provision (not reviewed).

j.  Phthalates standard applied only to "plasticized" components and not to inaccessible components.  Guess that means no more testing of paper, wood and metal.

k.  Authority to exclude items from tracking labels provision is given to the CPSC based on practicability.  This is promising although the Dem hanging judges on the Commission have yet to make a single decision that saved a business a dollar for any reason. Don't hold your breath.

l.   Database rules are tweaked in a meaningless way consistent with the Markey proposal on database.  NO relief offered.

THERE IS NO RELIEF GIVEN TO EDUCATIONAL MATERIALS.  Thanks, Congress.  I am glad my kids are out of elementary school by now.

That's it, more or less.  Hope you like it, that's all you're going to get.

CPSIA - CPSC Enforcement Officer Speaks

In a July 29th blogpost, CPSC Commissioner Anne Northup reproduced a letter she received from a CPSC Field Agent.  Like so much data rejected by the Validation Bias Democrats on the Commission, I am sure this letter will be ignored.  Why not decide for yourself if it's relevant?

"I just had an opportunity to read your July 20 statement concerning lead ppm.

I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world.

Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right.

It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy."  [Emphasis added]

I wish I shared the Field Agent's optimism.  Hey, buddy, those days are looooooong gone.

CPSIA - Pryor Amendment (as amended) to be Hotlined in Senate Tonight

According to my information, the Pryor Amendment, as amended to address the needs of resale goods stores, will be hotlined in the Senate this evening (passed by unanimous consent).  The bill then proceeds back to the House which remains a "house-divided".  Not unlike other showdowns in this disgusting spectacle over the past three years, it will come down to a nerve-wracking poker game where you are the pot. 

Who will win the day?  If the Pryor Amendment becomes law, you can assume the chances of passage of a common sense amendment of the CPSIA just went from 0.03% to 0.01% (not my joke, unfortunately - I am not as clever as some of the other cynical observers of this mess).  If the ATV'rs, bikes and resale goods victims are cut out of this mess, the rest of us will be the chosen losers.  There are no winners.

It will be up to the House Republicans to not hand a historic, economy-wrecking victory to Henry Waxman. They know what's at stake.  We are all depending on a sensible outcome of a quick Conference Committee.  The National Debt crisis victory should increase confidence. I only wish we were the subject of such public scrutiny.

The next few days will seal our fates, once and for all.

More to say later this evening.

Friday, July 29, 2011

CPSIA - Rumorville on Pryor Bill

A little bird tells me that some people have verified that the the Pryor bill to amend the CPSIA has been "hotlined" in the Senate as a step to immediate passage.  Other people have gone silent or have been unable to verify, so it's not an entirely clear situation.  "Hotlined" bills are on track for a unanimous consent vote. 

I gathered this explanation from Republican Committee on Rules site on hotlining:

"The Senate has largely institutionalized its unanimous consent process. On major pieces of legislation, the Majority or Minority leader may force a Senator from the other party to object to a bill’s consideration in the absence of a unanimous consent agreement. Similarly, the Senate will hotline a bill when it is ready to be considered under a unanimous consent agreement. Under the hotline process, the Senate cloakrooms notify Senators of upcoming bills that may be considered under unanimous consent to provide them with a final opportunity to object."

It's all rumor at this time, but this suggests that someone wants to get something done now.  While the Pryor bill is imperfect as drafted, it's better than nothing, and if there is a chance of a conference bill later, the possibility of a better bill is not yet dead . . . before we all die.

Thursday, July 28, 2011

CPSIA - Don't Faint . . . Senator Pryor Put Up CPSIA Amendment Today

Senator Pryor today introduced the so-called "Consumer Product Safety Flexibility Act of 2011" to amend the CPSIA.  This four-pager is targeted at three problems:

First, it makes the 100 ppm lead-in-substrate standard prospective.

Second, it exempts ATVs and motocross (off-highway vehicles) from the lead standards of the CPSIA.  It also gives a year extension on the standards for all-terrain vehicles.

Third, it codifies the holdings of the CPSC stay as it applies to bicycles (‘Notice of Stay of Enforcement Pertaining to Bicycles and Related Products’, published June 30, 2009 (74 Fed. Reg. 31254)), thus exempting bicycles from the 100 ppm standard.

The bill to my knowledge is not up on any of the Congressional monitoring sites yet and does not have a bill number.

This is a useful effort by Senator Pryor.  For one thing, the 100 ppm lead standard issue MUST be addressed before Congress goes on its August recess.  Hats off to Mr. Pryor for at least providing a means to address this issue.  Rumorville has it that the Senator wants to do more than is expressed by this bill.  Other Dem Senators are on the list as purportedly wanting to do more for us.  All I can say is . . . get in touch with your feelings, Senators.  We need help NOW and we would appreciate your help and leadership in particular.

As for saving the ATV'rs and bikers, well, they never belonged under this law in the first place.  The devastation wrought by this law should have been addressed long ago.  That said, there is nothing more or less sympathetic about ATVs or bikes under this law than the rest of us losers under the act.  None of us were poisoning children or even injuring children with lead-in-substrate, much less phthalates.  The neuroses of the consumer groups is no more applicable to bikes and ATVs than to us.  [Please note my prior disclosures, dating back to January, that the AAP has long supported application of CPSIA lead provisions against the ATV industry to effect a tacit ban of youth model ATVs.  The AAP admits they want youth model ATVs off the road.  This duplicity exposes the sham nature of the CPSIA, how it has been misused for political reasons by the white-cloaked and self-righteous proponents of children's product safety.]

Having spent literally countless hours on advocacy on this issue since 2007, I cannot say what more needs to be said or can be said to explain how misconceived the law is.  The ATVrs and bike industry should be let off the hook . . . but so should all the other innocents.  If ATVs deserve a pass, so do rhinestones, so do t-shirts and shoes, so do books, so do science kits.  Come on , guys, science kits?!  Do you REALLY want to send America's science education back to the Stone Ages?  It's time to loosen the noose on American industry.

One can only hope that this bill moves quickly through the Senate, and that the House quickly regains its Mojo on ECADA, leading to a useful and hopefully productive Conference negotiation to produce the long-awaited CPSIA Amendment that we have long craved and which is so long overdue.

Tuesday, July 26, 2011

CPSIA - Northup Lashes Out at Majority for Disregarding Executive Order

Letters to the Editor
Wall Street Journal
July 26, 2011

CPSC Should Follow Obama's Policy

As one of the minority (Republican) commissioners on the Consumer Product Safety Commission who voted against finding that it was technologically feasible to lower the lead content in all children's products from 99.97% lead free to 99.99% lead free, I appreciate your July 20 editorial "Toying with Deregulation." You accurately paint a grim picture of the commission's disregard for President Obama's appeal that regulatory agencies promote "economic growth, innovation, competitiveness and job creation." But you omit the even more disturbing evidence that the commission majority twisted the language of the Consumer Product Safety Improvement Act and ignored the evidence before it in order to reach a predetermined outcome.

As the majority proved with its 100 ppm vote, it will take much more than an executive order to stop an agency bent on imposing its radical agenda without regard for the economic consequences. See

Anne M. Northup

CPSIA - Amazon to Kids' Hat Companies: Prove You're Lead-free by August 7th

Hope your kids don't need hats.  Perhaps you are aware that absent Congressional action, the new 100 ppm lead standard will be imposed retroactively by August 14th.  The five Commissioners have requested that this provision be applied prospectively (they made this request in January 2010) yet Congress has done nothing about it.

As a matter of fact, now that you mention it, they haven't done anything about any of the problems under the CPSIA.  I guess as Rachel Weintraub suggests, more "discussion" is needed.

Anyhow, I received the below letter (excerpts are reproduced only) from a maker of children's hats.  Anyone out there ever heard of lead poisoning from a hat?  Me, either. Nevertheless this company is subject to the stupid rules of the CPSIA for reasons best explained by Henry Waxman, and are now being required to prove up the "safety" of their hats.

So how do you expect hat companies to respond to this kind of request?  Do you think they can afford the tests?  To employ the people to administer the tests, apply the tracking labels, maintain the records, deal with all the paper-pushing by their customers, pay for the lawyers, fill out the forms and so on?  I can think of several likely replies.  First, cut the product line.  Don't waste money on testing so many hats.  Second, simplify the product line.  Remember cute hats with lots of colors?  Thing of the past.  Better snap 'em up while you can.  Monochrome is the new rainbow.  Third, make hats for kids over 12 or for adults. Then you can sprinkle your little hats with lead to your heart's content.  No one will care.

Oh, I know, natural fibers and certain fabrics don't need to be tested.  Yes, but my customers don't care much for these niceties.  They want a piece of paper for the files.  If you think we test only when we have to, you are wrong.  That's the bare minimum.  Most tests are repeated or substantially exceeded, even beyond the absurd levels required by law.  This hat company was pretty depressed by the news delivered by Amazon.  Get used to it.

Or go pick up some hats right now.  If you have little kids, buy them in several sizes while you're at it.  No time like the present. . . .

Amazon Letter (excerpts):

Dear Amazon Vendor:

The Federal Government enacted the Consumer Product Safety Improvement Act of 2008 (the “Act”) that, in addition to other requirements, prescribes strict limits on the content of lead and phthalates in products intended for children.

New stricter limits on lead in children’s products will go into effect on August 14, 2011. This message outlines the steps Amazon will require vendors to take to confirm that their products comply with the new stricter lead limits affecting children’s products.

Vendors are responsible for thoroughly familiarizing themselves with all the requirements of the Act and for tracking and complying with any regulations issued by Consumer Product Safety Commission (CPSC). Additional information on the Act is available on the CPSC website at Specific provisions of the Act discussed in this letter are for ease of reference only.

Actions Required: What you need to do

By July 31, 2011, each vendor must confirm and report to that all of your children’s products (i) in’s inventory, as reported to you in Vendor Central, and (ii) in transit or shipped to, will comply with applicable limits set forth in Column I.

Limit:  Lead 100 ppm

Effective Date of Limit per the Act:  August 14, 2011

Products shipped to Amazon must comply by:  July 31, 2011

Noncompliant products are subject to return to Vendor:  August 7, 2011
Step 1: Verify that your products are compliant with the lead content requirements going into effect on August 14, 2011.

Vendors are responsible for determining whether the products they sell on are compliant with the new lead requirements.

CPSIA - Tenenbaum and Co. Thumb Their Noses at Obama's Executive Order

The sparks were certainly flying at the July 20th Commission meeting last week.  With access finally granted by the CPSC today to the video footage, I was able to see for myself all the excitement at that storied meeting.  I was amply rewarded with a display of regulatory arrogance you rarely see on tape - Inez Tenenbaum and Bob Adler standing tall and thumbing their noses at a binding Executive Order.  I guess the CPSC is now above ALL law, other than laws endorsed by Henry Waxman.

The tension in the room at this meeting was palpable, and the usual shenanigans took place, like Ami Gadhia's claims that CPSC Staff found that manufacturers intentionally add lead to children's products (47:31).  While I would normally take the scummy consumer group reps to task for their misstatements (lies?) and innuendo, in fact at this hearing, a much more important issue was "debated".  [Bickered over is more like it.]  Namely, whether the CPSC has to follow President Obama's Executive Order to preform cost-benefit analyses on regulations under the CPSIA.  I have previously addressed this issue in blogposts on July 12, July 14July 20 and July 21.

After the usual pointless sparring over the ability of the CPSC to do the right thing (don't worry, Bob Adler "agonized" over these difficult decisions . . . and then voted to screw industry), the meeting devolved into a series of often incoherent and inconsistent defensive rebuffs by Dems in support of their political conclusion that they can blow off the Executive Order to the extent that it threatens in any way their work implementing the CPSIA.

Of course, the idea of the Executive Order was to ensure that those rules are economically justified. Blah blah blah.  The view of the Dem Commissioners is that evidence of the extreme economic impact of these rules is not relevant to the CPSIA rulemaking process, notwithstanding Mr. Obama's little note.

Chairman Tenenbaum laid down the law at 1:15 in the tape:

"I'd like to comment on the Executive Order [which says] 'Nothing in this order shall be construed to impair or otherwise affect authority granted by law to a department or agency, or the head thereof . . . . This order shall be implemented consistent with applicable law and subject to the availability of appropriations.'  Congress was very clear. They wanted the lead limits at 600 then 300 then 100.  We have looked at this from all angles.  And I can tell you, consistent with the law, we have implemented the CPSIA. . . . Congress was very aware that we could not write regulations unless we did a Section 9 cost-benefit analysis in some of the statutes we implement.  And they on purpose did not require us to do cost-benefit analysis because they realized the urgency of getting lead out of children's products. . . . And that my legal understanding. . . . And so to have this fiction be a part of this public hearing, that we are required to do cost-benefit analysis under the CPSIA under the Executive Order cannot go unanswered."  [Emphasis added]

Take that, Obama!  Your EO is fictional!  Tenenbaum seems to be saying that because Congress permitted expedited rulemaking under the CPSIA, all regulations under CPSIA are shielded from any cost-benefit analysis mandated by the President.  She pins this on the standards established under the CPSIA.  Interestingly, she seems to overlook that the 100 ppm standard was subject to a rulemaking process, and the Obama order specifically addresses rulemakings.  She also glosses over so many other rulemakings which are remote from the standards.  Details, details. . . .

The Obama order instructs the CPSC to follow Executive Order 13563 to the extent "permitted" by law.  The CPSIA does not preclude cost-benefit analysis, it only allowed the agency to skip it.  The only direct reference to cost-benefit in the CPSIA is in Section 233 where cost-benefit analysis is specifically written out of  the Poison Prevention Packaging Act of 1970.  Cost-benefit analysis is NOT specifically written out of the CPSA in the CPSIA anywhere.  The Dem Commissioners didn't address this point during the July 20th meeting.

EO 13563 in relevant part says:  ". . . to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts; and equity). . . ."  The President's new EO applies this verbiage to the CPSC.  Tenenbaum just blows it off entirely.  The President must be below Henry Waxman. 

Ms. T gets pretty snippy at points.  "There are people on this Commission that want to contort and use this Executive Order.  I have spoken to attorneys at the White House; I know I stand on firm legal ground.  And so please don't leave this meeting thinking that we are expected to do cost-benefit analysis or this Executive Order mandates that we do that.  It does not!"

Tenenbaum's argument - I am judge, I am jury, don't question me. 

Anne Northup notes that the stalemate in Congress is no indication that the law requires such harsh and inflexible positions by the agency:

"It's also clear that Members of Congress . . . are universally talking about, even the authors of the bill, changes that ought to be made [to the CPSIA].  The reason that Congress has not acted is that [there is disagreement over how broadly to amend the law.]  They have not told us that they think we should proceed in the most aggressive fashion and in the most punishing rulemakings and to take advantage of every opportunity we have to regulate more toys rather than less, more tests rather than less, and so forth. . . . All an Executive Order does is ask us to . . . take seriously whether or not we can find alternative ways of achieving the meaning of the law without the disruption in the economy."

Continuing the debate (argument), Bob Adler had much to say as usual.  As we know, Bob Adler is already on record volunteering to block cost-benefit analysis with his dead body.  [See "Is that a promise, Bob?"]  At the July 20th meeting, he proffered the reason why cost-benefit analysis is inapplicable here:

"My colleague asked whether there is anything in the statute that specifically exempts us from having to, from being able to do cost-benefit, and I think in terms of the precise parsing of the statute, that's correct.  But let's be clear:  it effectively in all major respects precludes us from doing that. When they've given us 42 deadlines to achieve in just a very short period of time, when they've specifically exempted us from having to do these incredibly time-consuming and costly Section 9 procedures, i think there's a very clear message from Congress there.  Congress in effect was saying 'We've done the cost-benefit analysis.  Now we want you to implement the law."

So, the reason not to obey the President - Congress couldn't have meant us to do a cost-benefit analysis because otherwise they wouldn't have given us so much darned work to do.  In addition, by reducing our burden with looser Section 9 procedures to expedite the implementation process, Adler says Congress meant to say that they had already "completed" a cost-benefit analysis.  Mr. Adler does not attempt to prove his point, his assertion being enough apparently.  I am always impressed by the self-justifications of regulators who claim to be able to read the "mind" of an inanimate body like Congress.  In law school, they taught us to follow rules of legislative interpretation.  That's so Old School!  Nowadays you only have to attribute a "thought" to Congress to "prove" legislative intent.

Of course, just a few days ago, Bob asserted something rather different:

"It says "to the extent permitted by law" we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis."  [Emphasis added]

At that time, Adler seemed to believe that the words "to the extent permitted by law" require the agency to do a cost-benefit analysis only when it is convenient to perform such complex analyses.  Hmmm.  Does anyone think that legal analysis is just a bit "loose"?

Ah, but Bob wasn't done by any means.  He carried on (and on and on) at the July 20th meeting to add yet another argument, namely that cost-benefit assessments are impossible as a practical matter.  No explanation as to why this was relevant, as Adler already said Congress instructed the agency to not to do such analyses and the Executive Order is inapplicable.  Details, details. . . .

"One of the things that I this is intriguing . . . is where they say 'Now when you're doing a cost-benefit analysis, let's address all the deficiencies we have identified with cost-benefit analyses in the past, namely you can always calculate the costs, especially the short term high costs but measuring benefits is just extraordinarily difficult.' How do you measure the life of a little baby? Because usually what they [conclude is that] there is no benefit . . . that you can quantify from saving a baby's life."

So, apparently, it might be okay to do cost-benefit analysis (?) but it wouldn't work.  Congress must not have meant us to waste our time . . . .   He later challenged anyone in the room to tell him what the "quantifiable benefits" of two lost IQ points are.  Too bad the EPA wasn't there. They do that regularly.  Here is a quote from AOL Energy referring to this kind of economic analysis:  "The economic value of the IQ points and the benefits of reducing particulate pollution was estimated using 'long-standing, peer-reviewed' practices on the effect of regulations, [EPA] officials said."  Again, details, details . . . .

Adler noted that this IQ point information would be crucial to an argument on how many angels could sit on the head of a pin.  Thus, Mr. Adler sneers at the value and legitimacy of a cost-benefit analysis involving children.  As our apparent judge, jury and overseer, one must surmise that he thinks it's his right to make this judgment, notwithstanding an Executive Order.

Oddly, Big Bob does concede that the picture is not quite so clear.  Hmmm.

"I'm not arguing that because we've got a lot of work that Congress therefore said don't do cost-benefit analysis.  [Editor's Note:  Bob, in fact, that IS what you argued.]  That isn't all they said.  They said 'You know what we want you to do, we want you to do a Regulatory Flexibility Act analysis which is looking at the cost side of the ledger which is easier to calculate.  In particular, to look at the cost side of the ledger insofar as affects small businesses because those are the folks who are the canaries in the mine that we look to."  Adler goes on to retract this assertion, and return to his claim that Congress DIDN'T want the CPSC to do a RFA analysis and instead just wanted the agency to implement the law.  His argument here seems to be that Congress was interested in some sort of economic analysis but only a limited one.

Adler then launches into his final jab at blowing off the Order:

"I guess we do have a dispute about whether we have imposed this in an ultra-aggressive way or in an extremely thoughtful way.  I think we have taken the approach in an extremely thoughtful way.  But sometimes you have to do a cost-benefit of whether to do a cost-benefit and I don't think that analysis gets us very far."

So Adler wraps up with his "over my dead body" argument - he just doesn't want to do it. Take that, Obama!

Nancy Nord grimly assessed the sad spectacle we witnessed:

"This is an important issue.  And cost-benefit analysis could have been done with respect to our regulations under CPSIA but wasn't.  Whether that's a good idea or a bad idea, we can continue to debate.  But Congress did not say not to do it - Majority did.  And I think that's unfortunate and I think our rules have suffered because of  that."

I will spare you the late sniping between Tenenbaum and Nord, but if you like catty repartee, it's at 1:24.

With three Dem Commissioners in charge at the CPSC, you can forget about relief from the EO.  Nice try, Mr. President, but you've met your match. Tenenbaum, Adler and Moore are above the law and are on a Waxman mission that transcends our laws and the Constitution.  There's not much left to hope for with this crew in charge. 

Maybe the CPSC will be on the national debt chopping block.  Don't hold your breath. . . .

Monday, July 25, 2011

CPSIA - Personal Injury Lawyers Say CPSIA Database is a "Success" - Any Questions?

News FlashPersonal Injury Law Firm Beasley Allen P.A. announced the revelation that the CPSIA Database is a success but is still under attack.  Hmmm.

For those of you unfamiliar with this authoritative news source, Beasley Allen is a Montgomery, Alabama tort law firm that boasts on its website of a "$150,000,000 verdict in a personal injury case".  No doubt they are impartial in their views on the database.  Their web address is

To bolster their case in favor of the database, they trot out the informative results of Henry Waxman's "analysis" of the database released on July 7th.  [Mr. Waxman did not make his data available so his analysis has gone unchallenged.  The only way to review it is to recreate it.  Take it for what it's worth.]  Beasley Allen also cites the musings of Don Mays at Consumer Reports (he is the one who cautioned against his fourth grade daughter playing a brass instrument - don't worry, she plays the violin!), completing the rogues gallery.

Among the asserted benefits of the database, aside from website visits by other personal injury lawyers trolling for tort cases to file, Beasley Allen contends that "[s]ome manufacturers had even found the database helpful to them in identifying potential hazards in their products and addressing them as needed."  Aha.

There is an evil side to this controversy, naturally:  "Still, a powerful anti-consumer lobby wants the database shut down, and it is using politics to achieve that. While the database costs the CPSC $3 million to maintain – a bargain price considering its usefulness and its power to help make consumer products safer – it is on the chopping block again in current budget and debt-ceiling negotiations." [Emphasis added]

Oh, yes, the well-known and powerful "ANTI-CONSUMER LOBBY"!  Have you ever met someone who was not a consumer?  Are the people who never consume anything or don't have relatives or family members?  Or are they people who don't want consumers to buy their products?  Oh them! 

Or perhaps they are people on who oppose personal injury lawyers.  Just a thought. . . .

The Southern Injury Lawyers conclude:  "Opponents of the new database said that the database could be easily abused and filled with false information. However, analyses have found no signs of malicious activity on the database and Consumer Reports says it has not seen any evidence that the database has been harmful to businesses."

So says the lawyers with the $150 million dollar tort lawsuit.  Seems definitive to me. What could the problem possibly be???

Sunday, July 24, 2011

CPSIA - Not to State the Obvious, but the Debt Ceiling Fiasco Imperils ECADA

Among the many reasons for despondency at this time of national gridlock is that the Washington national debt standoff likely signifies the demise of ECADA (the pending CPSIA Amendment).  A week from this Friday is the last work day before Congress' all-important summer recess.  [As you know, Congress needs its R&R.]  The CPSIA will remain unamended unless a bill moves through Congress by then. 

You don't need to be a seasoned Washington vet to see that Congress ground to a halt while the national debt food fight is going on.  With the likely pressure of world market volatility, U.S. credit rating downgrades and other homegrown massive financial calamities, and you have a recipe for Congress' attention being somewhere besides the CPSIA.  With the President and his minions playing the market manipulation card (Daley and Geithner were dispatched to the Sunday talk shows to spread their gloomy prediction of market cracks on Monday), the ability of Congress to focus on its actual work is just about nil now.  Mine certainly is, too.

It will be the ultimate irony if the debate over the size of our government is what wins day for an engorged CPSC focusing on fake health crises as directed by the CPSIA.  Victory to Rachel Weintraub, Henry Waxman and Bob Adler all because our national leaders can't decide how much to spend beyond our national means?  Three years of fighting may end up on the rocks, simply because of bad timing.

If ECADA does not become law before August 14, the 100 ppm lead standard will be retroactive, the THIRD such scr*wing imposed on us by the soulless bureaucrats at the CPSC since August 2008.  Oh yes, I know, they have no choice.  Woe is me, they feel so badly about it, but what can you do???

Tell that to our employees, our suppliers, our dealers and the millions of families, schools and teachers who depend on our company and its products.  Hey Dems, why not finish the job with a big tax increase, too?! 

Stay tuned.

CPSIA - Rachel Weintraub's Distortions Justify Dem Refusal to Amend the CPSIA

Democrat tool Rachel Weintraub is never at a loss for words on the topic of CPSIA and true to form, she has today published more misstatements, distortions and innuendo to bolster Dem efforts to block amendment of the CPSIA.  In the space below, I rebut Ms. Weintraub's "view of the world". 

It is worth noting that a much more erudite explanation of the pending CPSIA Amendment (ECADA) was published side-by-side with Weintraub's smear campaign, namely "Fix bill would make products safer, not less so" by Eric Stone.  For those who don't know Eric, his credentials include more than 33 years at the CPSC, including as Legal Director in the Office of Compliance and as Acting Director of the Recalls and Compliance Division.  He faced the real questions of safety at the agency and made the judgments subject to the scrutiny of the public, Congress and the legal system. 

As Eric Stone notes, "In crafting its new safety bill, Congress proved that moral outrage and good intentions do not necessarily result in good law."   Amen.

My responses to Ms. Weintraub are in blue and red.

Don't set safety clock backwards for kids products

By Rachel Weintraub
Florida Sun-Sentinel
July 24, 2011

The House Energy and Commerce Committee will soon vote on HR 1939, the "Enhancing CPSC Authority and Discretion Act of 2011," or ECADA, a bill that guts the Consumer Product Safety Improvement Act, a vital law that keeps unsafe toys and other dangerous products off the shelves.

RW - It is a typical ploy of the Lefties opposing amendment of the CPSIA to frame everything in terms of toys.  Toys are but one category affected by this awful law, but by using it as the CPSIA poster child, Weintraub puts you where she wants you - afraid of ECADA's potential effects on innocents by "evil toymakers".  Aside from the fact that "evil toymakers" are no more or less prevalent in our society than any other category of "evil" something-or-anothers, Weintraub's characterization greatly distorts what CPSIA really is.  CPSIA applies to ANYTHING that is intended to be sold to children.  The list is well-known but, as a reminder, it includes t-shirts and shoes, carpets, pens, ATVs, bikes, books, science kits, DVDs and CDs, furniture, brass musical instruments, rhinestones and so on.  Focusing on toys is just to get you going.

Congress passed CPSIA by an overwhelming, bipartisan vote in 2008, and President Bush signed the bill into law that year. After a year of careful deliberations, CPSIA's passage followed a record number of recalls of children's products that injured and killed children. The measure gave new life to the U.S. Consumer Product Safety Commission, a weakened federal oversight agency that had failed in its meager efforts to protect the public's safety. The law represents a giant step forward in protecting America's children.

RW - Another defensive ploy of the CPSIA defenders is the "infallibility of Congress" argument, namely that everyone voted for it so why is anyone against it now.  This argument only makes sense if you don't think about it too much.  For one thing, the CPSIA was passed in anger.  Have you ever said or done anything in anger that you later regretted?  That point aside, it is important to consider that this law was devised by a Dem-controlled Congress dominated by the strong-willed Left Winger Nancy Pelosi of San Francisco.  Pelosi takes no prisoners and tolerates no dissent among her Dem followers.  The law was dictated by Dems to the Republicans, as insiders acknowledge, and was passed just ahead of the Obama wave in the Presidential election cycle. The votes of Republicans for such an extreme law cannot properly be deemed "voluntary" in any conventional sense. Everyone knew this law was a great chess move by the Dems, forcing Republicans to go along, and even President Bush got into the act by agreeing to sign to protect his party.  Weintraub's distorted rewrite of history is a good illustration of the rule that history is written by the victors.  Consider the source . . . .

CPSIA currently requires that children's products be tested for safety before they arrive on store shelves — something that many consumers already assumed was happening.

RW - Another oft-repeated consumer group assertion, never proven.  It has always struck me that this argument is just transference. I have no doubt that folks like Weintraub always wanted this, and simply assume that everyone shares their "common sense" desires and fears. 

It sets limits on lead in children's products, sets infant product and toy safety standards, and bans certain phthalates, which are chemicals linked to a variety of health risks. The law also creates a much-needed public database where consumers can easily report and research product safety problems.

We have already seen the successful results of CPSIA. Most recently, on June 28, 2011, new crib standards went into effect, which means that cribs sold in stores must meet the most protective safety standards in the world. This will give parents and caregivers the long-overdue peace of mind that when they purchase a new crib, it will be a truly safe place for their baby.

Some small toy manufacturers have raised concerns about the costs of testing their products to the new safety standards. These concerns, and narrowly tailored ways to reduce the costs for very small children's product manufacturers, are useful to discuss.

RW - The nauseating cynicism of this remark cannot go unaddressed.  Ms. Weintraub argued for two years that the agency "needed time" to implement the law and to work out the kinks.  At that time, she and the other Dems argued that there was "nothing wrong" with the CPSIA that the CPSC couldn't fix in its implementation and that consideration of legislative fixes was not merited until that process was complete.  Three years later we are still subject to this on-going implementation . . . that is, those of us who haven't gone belly up.  Weintraub expressed little interest in "discussing" these issues way back then. 

Later, Ms. Weintraub tried to justify Henry Waxman's lame-o effort at a cursory amendment of the CPSIA that offers negligible relief.  Here is an excerpt from her House testimony dated April 28, 2010 (15 months ago) on this topic:

"Special provisions for small businesses includes allowing certain businesses to be exempt from third party testing when the Commission finds that reasonable testing methods assure compliance with relevant consumer product safety standards. We believe, however, that the term "small batch manufacturer" is defined too broadly. We commend the fact that the language does not allow small batch manufacturers to obtain exceptions for durable infant or toddler products or lead paint, cribs, pacifiers, small parts, children’s metal jewelry, baby bouncers, walkers and jumpers. Because of the fatal nature of the defects in many of these types of products, as demonstrated by recalls in the past, all manufacturers should be required to meet the same safety and testing requirements. We could not accept a broadening of either the definition of small batch manufacturer or a limitation of those products not covered by this provision."  [Emphasis added] 

The CPSC never did identify any such "reasonable testing methods" even though the "hunt" has gone on for three years now.  Even Ms. Weintraub must blush when she tells you that such issues deserve "discussion".

Unfortunately, instead of fixing concerns of the truly small manufacturers, HR 1939 goes too far and rolls back important consumer protections created by CPSIA in a number of ways.

HR 1939 reduces safety testing for children's products by undermining independent safety testing requirements for most children's products. This would place us in the same dangerous situation we were in 2007 and 2008, when millions of beloved toys were recalled because of excessive lead paint, strong magnets that when swallowed in multiples could rip apart a child's intestines and chemicals that turned into the date-rape drug when swallowed.

RW - The issue in 2007 and 2008 was NOT that the law did not protect consumers.  In fact, if anything, the issue was that the agency did not (adequately) protect consumers. The bad behavior that prompted the CPSIA was clearly illegal, as the agency could act to enforce if it so chose.  After all, they issued hundreds of recalls under prior law.  Please pause and give that a little thought.  Weintraub's argument is pure urban legend, but helpful urban legend for the tall tale she is trying to sell.

It is also worth noting that Gib Mullan, the then head of Compliance at the CPSC admitted during the second session question-and-answer session at the CPSC Tracking Labels hearing on May 12, 2009 that the agency had never seen the strong magnet hazard evidenced by Magnetix previously and at first mistook it as a "small parts" issue.  No law can prevent the unknown and the not previously experienced from happening.  That is a safety fantasy.  In addition, the "date-rape drug" incident involved an unapproved change in materials by a factory which no testing regime would have caught (CPSIA or not). The safety issue was completely unprecedented and the product was immediately recalled without argument by a very safety conscious toymaker.  Only in Weintraub's self-serving world is this incident useful . . . to terrorize.  Under most circumstances, it should be held up as a great public-private partnership and a sign that there are good people in the industry.

Under this bill, virtually all toys would no longer have to be tested for safety before they come into our homes — these products would be safety-tested only if and when CPSC undertook a laborious and complicated series of steps, including a cost-benefit analysis that emphasizes testing costs over health and safety benefits.

RW - Weintraub here spurns the President's Executive Order which MANDATES cost-benefit analysis by the CPSC.  This arch position conforms to the surprising world view of Bob "Over My Dead Body" Adler and Inez Tenenbaum and certainly suits their Dem agenda.  It is, unfortunately, an affront to the President's order.  It is also economic nonsense.  The OPPOSITE is correct, at least according to the Nobel Prize committee which awarded the 1991 Economics Prize to Ronald Coase for his work proving the need for regulatory cost-benefit analysis.  Mr. Coase proved that ignoring cost-benefit analysis exposes all of us to the risk of being impoverished by government regulation.  Thanks, Rachel, for the great idea!

It is unclear if CPSC would ever have the resources, time or information to complete what this bill demands of them, and it is therefore unclear if toys would ever be subject to independent testing. Independent testing not only prevents unnecessary injuries to children, but it can also prevent costly recalls for the manufacturer — a benefit to consumers as well as manufacturers.

RW - Here Rachel spins an even bigger tall tale, that preserving mandatory testing is in manufacturers' best interests.  Apparently she is the only one who knows this.  The people who actually work for companies affected by this rule have been howling for three years-plus.  Here Rachel sets us all straight - the problem is we're wrong and she's right.  Oh, now I see it!  Her reasoning relies on the urban legend that in the absence of mandated testing, testing will cease.  That's nonsense and is not supported by data.  We have been testing since I got to Learning Resources, more than 20 years ago.  So, if mandated testing is necessary to force testing, why were we testing way back then?  Simple - we wanted to know we were complying with the standards.  Standards drive testing, and enforcement can make testing prevalent, even universal.  Mandated testing just raises costs, unfortunately.  I have previously addressed this issue in a blogpost.

HR 1939 increases the amount of lead that would be permitted in children's products. CPSIA currently requires that all parts of children's products comply with a single, unambiguous standard for lead content. The proposed legislation would replace that clarity with a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts and other factors. As a result, parents and other consumers will no longer have the confidence that all parts of all children's products are safe for their children. Lead is a known toxin where even small amounts can be harmful by decreasing a child's IQ. There is no reason why there shouldn't be a single, strong standard that simply keeps lead out of children's products.

RW - No reason, huh?  Space does not permit me to reduce this absurd statement to rubble.  I have been writing about the many common sense reasons to modify standards for three years now.  ECADA as a matter of fact does very little to change standards except to codify some sensible concessions already made by the CPSC in stays applying to metals.  If you are terrorized by the prospect of bicycle licking or the horrors of playing brass instruments in the school band, ECADA's changes will no doubt keep you up at night. Your fears are nothing that our proposed National Xanax Fund can't address. 

The idea that different standards for different products aimed at different ages of children are somehow "defective" flies in the face not only of common sense but also the regulatory tradition at the CPSC.  Before whackjobs began to dominate the safety discussion, and before the agency had its brain removed by Congress, the regulators were able to see the sense of crafting different rules for two year olds, six year olds and twelve year olds. And nobody thought the same rules should apply to rhinestones, pens, ATVs and books.  If you are an experienced parent, you might know something about the need to modify rules for different ages of children. I have tried to regulate teenagers with the same rules as toddlers and received some "pushback".  And when I try to keep toddlers safe by applying sensible rules designed for teenagers, that doesn't seem to work either. 

HR 1939 undermines the effectiveness of the new crib safety standard. The bill would carve out a large exception to the bipartisan standard for cribs in child-care facilities. Under the bill, some child-care facilities would not have to replace existing fixed-side cribs even if the cribs violate the most basic crib safety standards — slats too far apart, non-compliant corner posts and failing mattress supports. Parents should be assured that the cribs their babies sleep in meet the strongest crib standards — both at home and in child-care facilities. The new, robust crib standards just went into effect for new cribs consumers can buy in stores and will apply to hotels, motels and child-care facilities in 18 months. Carving out child-care center cribs from this important protection moves the safety bar backwards.

RW - I have tried to avoid biting on the bait of the consumer group attacks on ECADA for the innocuous and sensible crib rule changes.  It is in Ms. Weintraub's interest to make you feel that there is some sort of evil cabal dominating the Republican Party which somehow induces them to play roulette with your babies' lives.  Anyhow, it's all a fiction but a helpful fiction to Ms. Weintraub's purpose, namely to subvert efforts to amend the CPSIA.  Here is the "deadly" language that Ms. Weintraub protests so intensely:

"(B) SPECIAL RULE FOR FIXED-SIDE CRIBS SUBJECT TO CERTAIN STATE OR LOCAL LAW REQUIREMENTS- Paragraph (1) shall not apply to a fixed-side crib that has not been recalled and that is offered or provided for use in a licensed child care facility (other than a family child care home) that is subject to the following requirements under the law of a State or a political subdivision of a State:  (i) The facility may not allow a child to remain in a crib for any significant amount of time while the child is awake, (ii) The facility may not place in a crib a child over the age of 16 months, (iii) An adult must be present whenever a child is in a crib."

Ms. Weintraub fails to deliver evidence that this exceedingly modest change could harm children based on actual injury data.  She just wants you to push the panic button.  ECADA only permits certain legacy FIXED SIDE cribs to remain in service.  I thought fixed side cribs were the "answer".  Not if their inclusion in ECADA might help get it passed, apparently.

HR 1939 allows the use of dangerous phthalates, which are hormone-disrupting chemicals that have been added to child-care articles like teething rings. This proposed bill would undermine CPSIA's landmark protections against phthalates by allowing large, undefined exemptions to both the prohibition and interim bans on phthalates in toys and child-care articles.

RW - Rachel again ventures into Whopperville to scare you about phthalates.  Let's start by deciding how "dangerous" phthalates are.  Ms. Weintraub reasons that if (the infallible) Congress banned them, the chemicals are ergo dangerous. The law, in fact, only bans three chemicals permanently and has directed the agency to investigate another three.  On two previous occasions the agency has done just that . . . and concluded that phthalates don't present a risk to children.  Ms. Weintraub omits to let you know that this provision was added to CPSIA at the last moment, without hearings or investigation, by California Senator Diane Feinstein of San Francisco and mentor to Nancy Pelosi.  Aha.  The science on phthalates is hardly an open-and-shut case - just watch 60 Minutes for perspective. 

Ultimately, the greatest disservice to truth performed by Ms. Weintraub here is to distort what measly relief is being offered.  ECADA only allows us to stop testing components that cannot be touched or licked by kids.  That's it.  The actual words:  "ACCESSIBLE COMPONENT PARTS- Effective on the date of enactment of this Act, subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3) shall apply to any accessible, plasticized component part of a children’s toy or child care article."

HR 1939 undermines the new CSPC product safety database. This new database allows public access to consumer complaints about product safety problems while giving the industry ample opportunity to view and comment upon such safety-related reports before they are posted. The database, available at, just went live in March. It will help consumers research products, help CPSC identify emerging hazard trends and help prevent unnecessary deaths and injuries. HR 1939 would place onerous hurdles on those seeking to report a safety problem, thereby discouraging the sharing of potentially lifesaving information with other consumers, companies and the government.

RW - Oy vey.  There has been so much written on this subject that I can't bear to write it again.  Ms. Weintraub intentionally ignores any point inconsistent with her political agenda.  I will leave it at that, but feel free to pour over my prior writings on the database (tagged on the side of the blog) for further details.

Consumers demanded and received strong product safety reform from Congress in 2008. Undermining these important product safety improvements puts all of our children at risk. HR 1939 will not protect our children from product safety hazards. Rather, HR 1939 rolls the safety clock backwards and creates huge and unnecessary loopholes in our nation's safety net.

RW - One last point, to quote Eric Stone:  "ECADA gives CPSC broader subpoena and investigational authority. Not surprisingly, opponents do not mention such provisions since they do not fit the 'Republican-industry conspiracy' narrative."  I love the "Republican-industry conspiracy narrative" part.  You can see how that might work well for Rachel.

Rachel Weintraub is director of product safety and senior counsel at the Consumer Federation of America in Washington, D.C.

CPSIA - Participate in the AAFA Email Campaign to AMEND THE CPSIA!

The American Apparel and Footwear Association sent out the following request to the thousands of affected companies and individuals concerned about Congress' inaction on the CPSIA.  Please show your support by sending in an email in support of ECADA (the pending CPSIA Amendment in the House Energy and Commerce Committee).

Thank you!

"Hi.  At some point over the past few years, you have contacted Congress to urge relief from the crushing burdens of the Consumer Product Safety Improvement Act (CPSIA) using the legislative action center that we host on the AAFA website. Your advocacy has proved critical in raising Congressional awareness of the many problems that have characterized the CPSIA so far.

But we still need your help. Urgently!

A key House committee is currently considering amendments to the CPSIA that would provide relief in a number of areas, including testing, inaccessibility for phthalates, very small business, used products, ATVs and bikes, and retroactive application of the lead rules.

This amendment (H.R. 1939) will make our product safety system operate smarter while making sure that small businesses and other product safety stakeholders don’t get smothered in stifling regulations, extraordinary testing costs, and burdensome paperwork. We can’t let serious product safety risks be ignored while we endlessly test safe products and drive companies out of the children’s product business.

This amendment will not be considered unless Members of Congress hear from their constituents – you and your neighbors – demanding immediate action.

Help us bring commonsense back to our product safety rules.

Time for action is now. Your voice matters.

Please take a moment and send an email to your elected House and Senate members urging them to swiftly pass an amendment to the CPSIA. Please urge your family and friends to contact Congress.

Click here to make your voice heard and help get action on this important issue.


Steve Lamar
Executive Vice President
American Apparel and Footwear Association

Please see below some important resources:

- Copy of NAM ad that appeared in the Hill Newspaper urging action

- Op-Ed by Product Safety Expert Eric Stone describing the CPSIA Amendment

- Editorial from The Wall Street Journal

- Read ECADA"

Thursday, July 21, 2011

CPSIA - The CPSC Finds a New Way to Scr*w You

The banal and almost unnoticed adoption of ASTM F963 as a mandatory standard at the July 20th Commission meeting seems so innocuous.  Is it, really?

Commissioner Nancy Nord points out that this decision was a compromise of a Hobson's Choice nature:

"I joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011. Had we not reached this compromise, the testing requirement would have landed in the market’s lap in mid-October, just as stores are making their final preparations for the holiday season and small toy manufacturers are at the peak of filling orders. While I am relieved that companies will now have some time to find their way through the maze we have created, I have major concerns about why we are rushing to impose testing requirements to a standard we know is about to change."

What was that last bit?

Ummm, well, the ASTM is actually updating the F963 standard right now.  It will be done by year end. and as a result of the CPSC's wondrous action this week, it will be a mandatory rule to test to an obsolete standard on January 1, 2012 - and probably necessary to test to the new standard, too!  Doesn't that sound great?!  Now you can deliver TWO test reports when one might have sufficed.  But think of how much safer kids will be if you produce two almost identical passing test reports rather than just one.  Just think of it . . . .

Ms. Nord explains: 

"When the stay of enforcement is lifted on January 1, 2012, most likely we will be requiring testing to an outdated standard. This puts manufacturers and retailers potentially in the situation of having to do redundant or perhaps irrelevant testing – testing mandated by the CPSC to the old standard and testing mandated by the marketplace to the new standard. Because we are taking the position that these testing requirements are rules and can only be changed (after August, 2011) by notice and comment rulemaking, there is virtually no way to get the new notice of requirements in place and labs accredited before the standard becomes effective. This puts toy manufacturers in an untenable position. Our response is that we will address these problems as they come up but, of course, in the real world, this is no response at all to the potential for confusion we are creating."

I no longer have a sense of humor, so you can rest assured that I am NOT making this up.

Why the heck was the Commission in such a big, hot hurry to get this done?  Again, Ms. Nord explains:

"We are able to issue this NOR [notice of requirements] without following the Administrative Procedures Act (APA), with its notice and comment requirement, because the CPSIA allows avoiding the APA until August 14, 2011. After that, we must ask for and consider public input. Therefore, by putting out the NOR today, (1) we did not need to ask for and consider public comment, but (2) we did need to stay enforcement to prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays."

Does anyone remember that Bob Adler has said publicly at several Commission meetings and hearings that he hates stays and doesn't want to vote for any more stays?  So this vote avoids a public hearing and public comment (takes time, increases scrutiny, can limited flexibility) and it also avoids another stay process to extend this misery.   The Dems on the Commission almost always vote as a pack.  Can you connect the dots?

Not surprisingly, Nancy Nord can connect dots:

"However, if we waited, as sound regulatory policy would direct, we would have had to seek comments from the public. Apparently this public input process is too much of a burden for the agency, so if we have the opportunity to skirt the requirement we are more than happy to do that. Like a teenager with dad’s car keys, we want to squeeze in as much joy-riding as we can before the curfew hits. Our hasty decision does not achieve a net safety benefit, but it unfortunately does make things much more difficult than they need to be for the companies that are trying to understand and follow the law. . . . With its vote today, the CPSC has once again opted for rash action over rational action, to the quick and easy over the thoughtful and transparent. We know how to do better rulemaking; unfortunately, the majority today decided to push the ‘quick’ button instead of the ‘pause and think’ button."

Another Commission decision, another shellacking of the poor fools left serving children's markets.  After three years of this torture, I am just not surprised.  When will our country wake up and notice this travesty?

CPSIA - What Exactly Happened at the July 20th CPSC Commission Meeting?

What happened on July 20th at the CPSC Commission hearing?  I wish I knew. We must rely on a BNA article and gossip from those who were present or happened to be wasting their morning watching the spectacle live online.  Apparently Inez Tenenbaum made some blanket statements rejecting the President's Executive Order of July 11 relating to cost-benefit analysis of provisions of the CPSIA. 

Of course, how would I know what she said?  The video at the Sunshine State of the CPSC is not available to me.  Two days later . . . .  Hmmm.  Do you think they are waiting for me to forget about it???

While I cannot tell you exactly what Ms. Tenenbaum said during the meeting (yet), I do know a couple things.  First, BNA in an article entitled "CPSIA: Discord Between CPSC Commissioners Comes to Head but Fails to Halt Productivity" dated July 20 quoted Ms. T as follows: 

"And in a July 20 public meeting on the agency's priorities for 2013, Tenenbaum felt the need to say to Northup and other critics of the commission that the rules under the CPSIA are exempt from cost/benefit analyses, and therefore the agency is not required do them. 'To have this fiction that we are required to do cost/benefit analysis under CPSIA cannot go unaddressed.'  She said CPSC has committed to conducting a retrospective review of its regulations, per Obama's Executive Order, and 'we will begin our retrospective review and we will solicit comment.'"  [Emphasis added]

Fiction, eh?  Ms. T also made the same point in her statement on the newly adopted 100 ppm lead standard:

"Despite our clear and strict statutory instructions on this issue, some of my colleagues have raised a concern that the Commission’s actions run contrary to an Executive Order issued by President Barack Obama on July 11, 2011. Their position is not correct. In that Order, the President has asked independent agencies, to the extent permitted by law, to make decisions only after taking into account several considerations, but also to remain true to their statutory mandates. I am confident that the Commission has met and exceeded its mandate under the CPSIA. As such, the decision reached by the Commission today is consistent with the President’s Executive Order, because we have followed the law as mandated in the CPSIA, and as clearly intended by its Congressional authors."  [Emphasis added]

Ms. T seems to be saying that the agency was not permitted to follow the Executive Order because this setting of standards is not a "regulation" but is instead a "statutory mandate".  There is no such thing as a "mandate" in this context from a legal point of view.  See the definition of "mandate".  Essentially, what the regulators are referring to as a "mandate" is the directive by Congress to take certain steps and exercise judgment coupled with a public inquiry process, meaning that it must be a well-informed process taking into account the feedback of interested stakeholders. 

[It's okay, let it out.  I just doubled over in laughter myself.]

What DID Congress tell the CPSC to do about 100 ppm in the CPSIA?  The law instructs the CPSC as follows:

Section 101(a)(2)(C):  "100 PARTS PER MILLION.—Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after the date of enactment of this Act, subparagraph (B) shall be applied by substituting ‘100 parts per million’ for ‘300 parts per million’ unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products."

Section 101(a)(2)(D):  "ALTERNATE REDUCTION OF LIMIT.—If the Commission determines under subparagraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commission shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Commission determines to be technologically feasible to achieve for that product or product category. The amount of lead established by the Commission under the preceding sentence shall be substituted for the 300 parts per million limit under subparagraph (B) beginning on the date that is 3 years after the date of enactment of this Act."

Section 101(e):  "PENDING RULEMAKING PROCEEDINGS TO HAVE NO EFFECT— The pendency of a rulemaking proceeding to consider— (1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility . . . shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section."

[Emphasis added]  Section 101(e) refers to the process that just concluded as a "rulemaking proceeding".  I don't know how you feel about this, but this section of the CPSIA sure sounds like an instruction to administer a rulemaking proceeding to me.  This is not a direction to reach a particular conclusion - if it is a "mandate" at all, it is a "mandate" to go through a classic regulatory process.  Read the instructions yourself, it's right there.

President Obama's Executive Order reads as follows (in relevant part):

"By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:  Executive Order 13563 of January 18, 2011, 'Improving Regulation and Regulatory Review,' directed to executive agencies, was meant to produce a regulatory system that protects 'public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.' Independent regulatory agencies, no less than executive agencies, should promote that goal. . . . Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well."  [Emphasis added]

Ms. T interpreted the words "to the extent permitted by law" as "to remain true to their statutory mandates".  Ms. T, a lawyer, is blatantly wrong, laughably so.  Unfortunately, it's not funny.

Ms. Tenenbaum has taken the position that cost-benefit analysis is not relevant to the CPSIA.  Of course, you know I think that's a bunch of bunk.  The President's Executive Order is plainly applicable to this rulemaking process and Tenenbaum may be daring you or me to sue her.  I would like to point out, however, that when rules of legislative interpretation are applied to the CPSIA, her shoddy legal conclusions look even worse. 

Does the CPSIA mention "cost-benefit" anywhere?  I am glad you asked . . . .  The CPSIA uses the term "cost-benefit" only once (outside of the Table of Contents):

"SEC. 233. COST-BENEFIT ANALYSIS UNDER THE POISON PREVENTION PACKAGING ACT OF 1970.  Section 3 of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472) is amended by adding at the end thereof the following: ‘(e) Nothing in this Act shall be construed to require the Consumer Product Safety Commission, in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such standard.'"

If Congress was so concerned that cost-benefit should never apply to these provisions, why didn't they say it?  They weren't silent on cost-benefit - Congress thought enough of the issue to mention it in context of the Poison Prevention Packaging Act of 1970.  But as it relates to lead and phthalates, Congress was silent on cost-benefit.  Why might they have been silent?  Perhaps the authors of the law believed it was an illegal provision as applied to these rules.  Perhaps the Dems behind the law felt the CPSIA wouldn't pass if such an obnoxious term were included in this critical part of the law.  Perhaps those people figured no one would call their bluff, and that later, politically-aligned appointees would simply make up the law the authors couldn't write themselves. 

As this week's WSJ Editorial implies, we are powerless to stop Tenenbaum, Adler and Moore.  They can run rampant over our laws, our companies, our markets, our jobs, our lives.  They are the law, they are the judges, they are the jury.  They know what's best for us, and no public hearings are going to change their minds. 

Oops, make that no Presidential Executive Order will change their minds . . . .

Wednesday, July 20, 2011

CPSIA - Nancy Nord Op-Ed on the Wasteful 100 ppm Lead Standard

From the Washington Times (July 18, 2011):

NORD: Playing around with toy makers

Stricter lead regulations will cost jobs without making children’s products safer

The Obama administration has recognized that excessive and unnecessarily burdensome regulation is a drag on the economy. As the administration has worked to promote job creation, it has publicized its efforts directing agencies to eliminate or revise unnecessarily burdensome and inefficient regulations. Apparently, the Consumer Product Safety Commission has not gotten the word.

The commission’s failure to get the word is no more apparent than in its efforts to implement the Consumer Product Safety Improvements Act. The legislation was enacted after agency recalls of imported products illuminated the issue of import safety. The goal of the law is to assure that products intended for children are safe, a goal for which there is universal agreement. The devil, of course, is in the details, and the details of implementing this laudable statutory goal are devilish for sure.

For the rest of the article, please click here.

CPSIA - NAM Ad In The Hill Supporting Passage of ECADA

From The Hill Newspaper, dated July 21, 2011:

The time left to Congress to act on amending the CPSIA before the 100 ppm lead standard boom crushes more businesses and jobs is only 24 days.  [Html version of the ad]  This includes the time to get through the Senate, then conference, then to the President for signature.  Not a lot of time . . . and par for the course for this government, I suppose.  Will they act in time?  I certainly hope so but with Henry Waxman doing his evil best to prevent any progress on this issue, I don't have high expectations.  Let's hope some Democrats still have a conscience.

CPSIA - Trip Down Memory Lane (WSJ Editorials on CPSIA)

There have been nine editorials by The Wall Street Journal against the CPSIA.  I thought you might enjoy seeing them all in one place.  Below you will find links to all nine editorials, with a short highlight from each one.

The more things change, the more they stay the same . . . .

First Editorial (January 14, 2009): 

Pelosi's Toy Story

"The damage comes from new rules governing lead in children's products. After last year's scare over contaminated toys made in China, Congress leapt in to require all products aimed at children under 12 years old to be certified as safe and virtually lead-free by independent testing. The burden may be manageable for big manufacturers and retailers that can absorb the costs of discarded inventory and afford to hire more lawyers. Less likely to survive are hundreds of small businesses and craftspeople getting hit with new costs in a down economy."

Second Editorial (February 6, 2009)

Toys for Congress
New lead rules hit next Tuesday. Whammo.

"CPSC Chairman Nancy Nord has noted that the law has created 'chaos and confusion,' and as if to prove her point, yesterday New York federal Judge Paul G. Gardephe ruled that the law's limits on a plasticizer known as "phthalates" should apply to existing inventory just as lead standards do -- overturning a CPSC ruling to the contrary. That makes it even clearer that Congress needs to fix its own mess.  Trouble is, House Speaker Nancy Pelosi is heavily invested in the fiasco. On passing the misguided law in August, she proclaimed that 'with this legislation . . . we will be removing these products from the shelves.' Taking store owners and toy entrepreneurs with her."

Third Editorial (March 30, 2009)

Pelosi's Library Quarantine
The CPSC is left cleaning up the House Speaker's messy child-safety law.

"Democrats in Congress have leapt to criticize acting CPSC Chairman Nancy Nord, in hopes President Obama will replace her. But the real culprit here isn't the CPSC, which is overwhelmed with requests from manufacturers trying to make sense of the chaos that Congress created. House Energy and Commerce Chairman Henry Waxman has dismissed efforts to improve the law, claiming the real problem is that "misinformation has spread" about the impact on businesses."

Fourth Editorial (April 3, 2009)
Toys R Congress
Ruining the kids motorcycle business
"The multibillion-dollar children's motorcycle and all-terrain vehicle industry has been clobbered. Kids motorcross racing has boomed in recent years in rural and Western states. And the regulators at the Consumer Product Safety Commission (CPSC) have decided that virtually all of these youth vehicles violate the new standards because of lead in the brakes, tire valves and gears. They've ordered motorcycle dealers to stop selling them, putting hundreds of dealers and the entire motorcross industry in a depression. With one stroke of the regulatory pen, an estimated $100 million of inventory can't be sold, and the industry loss may reach $1 billion."
Fifth Editorial (August 11, 2009)
Consumer Product Destruction
Congress's lead in toys panic is set to ruin more businesses.
"Jewelry makers now join the legions of other businesses on the hook for millions of dollars in lost sales, inventory or testing costs despite products that pose little to no risk of lead poisoning to children. In the spring, thrift-store operators like Goodwill and the Salvation Army predicted that without regulatory relief they would have to destroy more than $100 million of inventory. Toy stores expected some $600 million in playthings that would have to be trashed and another $2 billion in losses across the industry. Motorcycle and ATV makers predicted total losses and business disruptions around $1 billion. Children's clothing stores have suffered huge losses, with Gymboree losing 40% of its market value overnight after reporting losses related to the House's lead-paint panic."
Sixth Editorial (November 7, 2009)
Congress's Brass Knuckles
Another casualty of the lead toy 'safety' law.
"CPSC Commissioner Anne Northrop noted that the decision not to grant a brass exemption shows that 'the Commission does not believe there is any [flexibility] written into the law.' Without action from Congress to address the chaos it created, Ms. Northrop said, 'More small businesses will be forced to shut down.' CPSC Chairman Inez Tenenbaum has insisted that changing the law would be 'premature.' Yet it has already been more than a year of bedlam for manufacturers and retailers negotiating these rules."
Seventh Editorial (April 6, 2010)
Waxman's Lead Poison
A fix of a bad law that is no fix at all.

"Mr. Waxman is insisting that any product applying for an exemption would still be subject to a three-pronged test to determine whether stripping lead from the product is 'practicable or technologically feasible,' whether a product might end up in a child's mouth and whether its exemption would affect public safety. In a response, CPSC Commissioner Nancy Nord explained that since all three tests have to be met for a product to qualify, 'the exception is as empty as the exception for no absorption of any lead. Such a provision does not really help anyone.' . . . If Mr. Waxman wants to enhance Congress's original creation, he should start by letting product safety regulators consider whether products are safe."

Eighth Editorial  (March 11, 2011)

Get the Lead Out, Sir
Nutty test standards give Obama a real chance to help business.

"The law also requires the CPSC to propose the parameters of a third-party lead testing regime, but the issue is so mired in complexity that the commission has yet to set those standards. Under the proposed version of this so-called '15 Month Rule,' Learning Resources Chairman Rick Woldenberg has estimated that supplying multiple testing samples on each of his company's toys and products will cost his company some $15 million per year. . . . At a hearing in the House Energy and Commerce Committee in February, California Democrat Henry Waxman defended the law as 'necessary to protect kids and families across the country.' We wonder how he figures that, since the incidence of lead poisoning from toys made by domestic manufacturers is nil."

Ninth Editorial (July 20, 2011)

Toying With Deregulation
Another agency ignores Mr. Obama's executive order.

"Here's a question for White House regulatory czar Cass Sunstein: Do Presidential executive orders mean anything? Only last week President Obama asked independent agencies to examine existing rules and get rid of the duds, but nobody is listening. . . . Mr. Obama's recent executive order is voluntary, but the President told agency heads that getting rid of red tape was an opportunity to 'forge a 21st-century regulatory system that makes our economy stronger and more competitive.' Perhaps Mr. Sunstein will tell toy makers it's the thought that counts."


JULY 20, 2011

Toying With Deregulation
Another agency ignores Mr. Obama's executive order.

Here's a question for White House regulatory czar Cass Sunstein: Do Presidential executive orders mean anything? Only last week President Obama asked independent agencies to examine existing rules and get rid of the duds, but nobody is listening.

Within days of the executive order, the Consumer Product Safety Commission voted 3-2 that it is "technologically feasible" to impose a lower limit on lead content in children's products, reducing the level to 100 parts per million from 300 parts per million. The new limit, which will go into effect August 14, will mean one more round of hair-pulling for small business owners who will have to change their manufacturing processes and junk existing products that don't meet the new standard. The three votes in favor came from Mr. Obama's chairwoman Inez Tenenbaum and two other Democratic commissioners.

The Consumer Product Safety Improvement Act passed in 2008 in a frenzy of concern over lead content in toys from China, and it has since tormented anyone who makes or sells bicycles, books, children's jewelry and so much more. Its strictures have imposed costs for testing, recalls and other inconveniences without any reasonable correlation to the risks to children. "No sweetheart, don't eat that bicycle!"

According to the CPSC, the plan to require that products be 99.99% lead free is reasonable because manufacturers would still be able to find materials and because some products already comply. While the additional safety gain will be negligible, the change will do damage in other ways, causing companies to avoid recycled metal and plastic, which may contain higher amounts of lead. It will also raise costs for metal parts, potentially driving some businesses to substitute plastic for metal, or stop producing children's products. In the bicycle industry, a quarter of manufacturers have stopped making kids bikes.

Instead of fixing its manifest flaws, Congressional Democrats who wrote the law have shrugged off small business complaints and opposed any changes. Energy and Commerce Chairman Fred Upton and Commerce, Manufacturing and Trade Subcommittee Chair Mary Bono Mack introduced reforms earlier this year that would revise the law and give the CPSC greater authority to make regulation decisions based on actual risk. The bill is waiting for a mark-up at full committee but any reprieve would likely come too late for businesses facing the mid-August deadline.

Mr. Obama's recent executive order is voluntary, but the President told agency heads that getting rid of red tape was an opportunity to "forge a 21st-century regulatory system that makes our economy stronger and more competitive." Perhaps Mr. Sunstein will tell toy makers it's the thought that counts.