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
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 http://www.saferproducts.gov, 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.