Thursday, July 14, 2011

CPSIA - Sound Bite Justice

Today the CPSC Commission voted 3-2 to impose the 100 ppm lead standard retroactively as of August 14, 2011, having concluded that there are no materials or products that the CPSC staff could identify for which this level of lead is not "technologically feasible".  This vote has been long predicted and anticipated.  The entire meeting was conducted in a thoroughly partisan manner, with sharp dividing lines between Dems and Republicans.  What-a-shock. 

I experienced a range of emotions watching this two-hour hearing.  None of them were surprise.  I experienced some boredom, as the debate was so predictable and so repetitive of past meetings.  Many self-serving remarks by the Dem zealots.  I experienced a mild sense of hopelessness, as it is clear that the Dems are unreachable. I experienced rising exasperation over their refusal to listen or consider data - unless it agrees with pre-existing agendas and alliances.  It is hard to not feel you are appearing before the Hanging Judge. 

I won't attempt to analyze what was really going on today, you already know it.  The posturing was sickening among the Dems.  That said, you deserve some flavor of the event.  Here are a few tidbits for your amusement or annoyance:

She's just the nicest!

Inez Tenenbaum explained that the 100 ppm standard would have gone into effect if the CPSC had not chosen to decide the question of "technological feasibility".  As she sees it, "this [decision] is a courtesy to people."

What, Boeing isn't covered by the CPSIA?!

After vigorously stating her case on the cost-benefit analysis of this rule and condemning the possible adoption of this rule as a violation of the recent Executive Order applicable to the CPSC, Ms. Nord restates the obvious. Unfortunately, the power of her logic was lost on at least three of her colleagues by my estimate:  "Just because a material is out there for a jet plane, doesn't mean that it's appropriate for a toy plane."  No!

Is that a promise, Bob?

Defending caveman logic to his followers, Bob Adler rebuffed the Executive Order argument and the order of the person who appointed him to his post:  "This is not a new Executive Order . . . . [They] said could you at least do a plan for economic analysis and I do think that we are planning on doing that and we have done that in the past. 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. If you look at the data . . . nine [CPSC] standards in 30 years using those procedures. I am not against cost-benefit analysis; I am definitely against the kind of cost-benefit analysis that's contained in our statute. Section 101 does not EXPLICITLY bar a cost-benefit analysis but it effectively does so."  [Emphasis added]

I find this rather interesting as he challenged me on February 16 with the question of whether I recommended that he violate the law.  It was a tense moment - he was trying to corner me into telling him to spurn his Congressional mandate.  Nevertheless, it is appears that Bob can pick and choose which laws bind him and which do not.  That shouldn't surprise anyone who went to law school.  Law school profs always know the right answer, even if it makes no sense to anyone but themselves. 

They care sooooo much, they really feel our pain . . . .

Ms. Tenenbaum set the records straight on the purity of her good intentions:  "I so believe that we have been diligent in looking at the marketplace and surveying materials. We have admitted it would be an extra cost to some companies and been out front. But, again, 'technological feasibility' the definition is not 'economic feasibility'. Not that I don't sympathize with small business owners and that is why we have worked on other rules [like the component part rule]. We are trying to be as flexible as possible and work with small businesses and the industry to accomplish what Congress mandated for us to do."

I know it's just a detail but in the last three years, what exactly has this "effort" achieved?  Oh yeah, I forgot about Neal Cohen - we can cry on his shoulder!  In fact, Ms. T. closed the event with the offer that Cohen has his box of Kleenex ready for you whenever you need him.

Somebody's getting the shaft, let the record reflect.

Nancy Nord noticed something the Dems must have missed:  "You know, one of the things that is of concern to me is that the penultimate recommendation from the staff here is that 'complying materials APPEAR to be commercially available for most products.' Listen to the hedge words there in the staff recommendation. They 'appear to be'? Well, let's find out for sure and let's do it on a product category basis. 'Most products'? Well, what about the ones that can't meet it? That's our responsibility as [regulators], colleagues."


Professor Adler grades the final exam.

Bob Adler was in top form today.  The "over my dead body" remark was just an appetizer.  He went on to inform us that comment letters which arrive late are not operative, especially if they did not properly read his mind on what he wanted to see:

"I do want to also comment on some of the last minute submissions we got from our friends in industry, and I always appreciate those comments and I do consider a lot of these folks to be good friends both of this agency and of mine. But it's really hard to take it seriously when it comes in at the penultimate or ultimate moment when you've had a lot of time to get that kind of information to us. . . . [Recites all the opportunities to comment prior to this hearing.] All of that, if you want to make a point, would have been very helpful especially we'd had the kind of hard quantitative data that SGS and the Hong Kong-American Chamber of Commerce gave us. And I'm going to just make a brief comment = you're free to do it, it's not helpful to tell us we've read the law incorrectly. I think we've read it correctly. I don't think it's helpful just to tell us that it's going to be difficult and more expensive to get compliant materials. I think we know that, I think the staff told us that. What we needed was more hard data demonstrating the points that you're making because what we really got were a lot of conclusory assertions when what we really needed was some hard quantitative data. And all the hard quantitative data I've seen really points in the opposite direction. So I really appreciate all the last minute comments. Too little, too late as far as I am concerned."  [Emphasis added]

This lecture was repeated three times by Mr. Adler unprompted, for reasons best understood by him.  Interestingly, Mr. Adler seems to have forgotten that I presented hard quantitative data on this same topic in my timely-filed 100 ppm comment letter and in my Febuary 16 testimony.  Of course, it did not agree with the SGS or HKACC submissions.  I guess since he found their data useful, mine must have been wrong.  According to his remarks today, I didn't even submit it, which is rather surprising since it was discussed extensively in the Staff report:  "Learning Resources reported 98.3 percent compliance with the 100 ppm standard for its products, but found this compliance level to be unacceptable because of the difficulty in identifying where the noncomplying components would turn up."

Bob Adler flips his flop.

You would think with three repetitions of his condescending lecture on late submissions, that Professor Adler must mean it.  Can't get a good grade in his class with that behavior, right?  Well, maybe not for the teacher's pet:  "One very quick point, well two. One is that the [AAP] study you shared with us, and again thank you so much Commissioner Northup, is a 2005 study. We got a letter last night from the American Academy of Pediatrics reiterating their support for moving down to these levels. . . . "

Bob Adler wings it. . . .

In the face of a vigorous attack by a well-prepared Anne Northup on the shoddy scientific data presented by the AAP supporting the "no safe level of lead" assertion, Mr. Adler lapses into hyperbole and fantastic assertions incapable of validation:

"It isn't just the [AAP]. A lot of what they've done has been drawn from research done around the world on the effects of lead. I'll bet there must be ten thousand, I know there are thousands and thousands of studies on lead, all of which point to the very severe toxic effects associated with [these products]."

Mother knows best!

In a truly shocking display of personal preference substituting for appropriate policy and regulation, Ms. Tenenbaum decided that we don't need recycled materials in children's products because who would want them anyway? 

"The scientific community has shown us over and over again that lead is cumulative and so I think there are safety benefits in reducing the exposure to lead and the accumulation of lead in the body. Also, I don't know that parents are interested in having products that their children use, particularly infants and young children, that are mouthable being made of recycled materials, recycled materials that may contain a higher level of lead. Recycled plastic - do you want your child to have a recycled pacifier? Well, that is why Congress has set these strict limits."

[Full disclosure, we recently won a toy industry award for environmentally-friendly toys made of recycled plastic.  No one has objected to them to my knowledge, and believe me, they are wonderfully and thoroughly tested for compliance.]

And the support for Ms. T's bald assertion is . . . what?  Did she find something in the legislative record?  Is there some verbiage in the law?  I have not heard this previously from anyone at the CPSC but notably I have repeatedly noted that the CPSIA will be the death of recycled materials in children's products.  Still, Ms. T's logic is irresistible - she is there to figure these things out for us and certainly knows best.  After all, she loves children, probably much more than any of us. She cares.  What else do you need to know?  With her power to impose policy, her preferences will become our marketplace.  Brave New World, courtesy of the Nanny Staters.

Tenenbaum says you can ALWAYS file for an exemption!

Ms. T. reminded the audience at least four times that if they wanted to, they could ALWAYS file for an exemption if they can prove their product or material can't be made to the new standard subject to the non-economic technological feasibility test.  The door is always open . . . .

This promise seems to be in denial of reality.  Let's start with the fact that the CPSC staff studied this question for more than a year and concluded, as summarized in a 59-page tome, that EVERYTHING is technologically feasible.  That seems to put us all against the wall when it comes to exemption petitions.  And then there's the fact that for three years, nobody has been able to get an exemption for anything, regardless of how obvious the case, unthreatening the use or how well-funded the supplicant.

Notes Ms. Northup:  "I just think we should warn the public that it is unlikely that any petition would be accepted and that that is, first of all, for anybody to file it would be far more costly than to just pay for the materials and increase the cost of their products in all likelihood, not to mention the delay they would have in us in actually addressing their petition."

And Nancy Nord speculates that petitions for relief are highly unlikely in any event:  "I will just tell you, in my conversations with folks out there, there is a feeling that 'why bother?' There is a comment weariness, there is a sense that it isn't worth the candle, and so I guess if you're not a company that's either been put out of business or not making the product, you don't have the money to hire the lawyer to file the petition. So I think that's just an empty option for most people."

Who do you believe?  Hey, as Ms. T says, the door's always open even if it's the door to oblivion.

The outcome of the decision to implement the 100 ppm standard was foretold but let's not forget something important - this is a retroactive rule as implemented today.  Unless Congress acts, we are all in the soup.  Even worse than before.  Call your Congressman and don't stop until they take action.  Mr. Obama must sign something by August 14 or all hell breaks out . . . again.


Anonymous said...


Maybe you can clear something up for me. Although I was hoping for a different outcome, I believe the language of the CPSIA required the CPSC to rule the way they did. That being said, Commissioner Nord's motion for an amendment that would require different rules for recycled materials seems out of the CPSC's authority. Do they have the ability to amend the CPSIA without it going back through Congress?

Rick Woldenberg, Chairman - Learning Resources Inc. said...

The CPSC had to decide the question of "technological feasibility" to assess whether the 100 ppm standard could be adopted properly. As Inez Tenenbaum notes, had the CPSC remained silent on this issue, the standard would have gone into effect on August 14 under the terms of the CPSIA. Ms. Tenenbaum however plays a little fast and loose with the options facing the Commission. The Commission had more than a choice of act/don't act. They could have stayed the 100 ppm standard for further inquiry. I called for a five year stay in my February 16 CPSC hearing testimony on the grounds that there is no injury DATA associated with the reduction of lead-in-substrate standards from 300 ppm to 100 ppm, and recommended that the agency take a wait-and-see approach given the economic and market risks associated with the pending change in standards. I put a clip of my statement in the blog yesterday (it was also in a February blogpost and is on YouTube).

The Commission had another option, if you want to call it that. The President issued an Executive Order on Monday which explicitly applies to the CPSC and requires cost-benefit analysis of new (and existing) rules and regulations. The change in standard could have stayed by the Commission pending a cost-benefit analysis as callled for by the President's order. Bob Adler put it succinctly: "Over my dead body". Hmmm.

Ms. Tenenbaum apparently called the White House and spoke to an "attorney" there about this issue. The reported conclusion of this interaction, as she explained during yesterday's meeting, is that an Executive Order does not trump a statutory mandate. That's true, the President's Executive Order does not override laws passed by Congress (this is in the nature of the structure of our three-branch government as you may recall from 8th Grade). Yet, Ms. Tenenbaum avoids addressing the obvious option, namely honoring the EO AND not subverting the statutory mandate. This could have been accomplished by staying the rule (apparently over Bob Adler's lifeless body) and performing the President's mandated cost-benefit analysis. Perhaps Ms. Tenenbaum and the other Democrats on the CPSC Commission consider themselves above the law. One wonders . . . .

Lucky us.

Anonymous said...

The truth is that the CPSIA really does stack the deck in favor of 100 ppm becoming law. Congress determined that lead has to virtually be eliminated from children's products based on the "no safe levels" concept. (The "because we can't measure it on children does not mean it is not bad" approach articulated by Commissioner Adler sounds oddly "faith based" but it is the approach taken by those who wrote the law.) Congress apparently did not care that the costs of such a provision totally outstripped any safety benefits to consumers. While some of the Commissioners perhaps overstated by a little--OK a lot--the hazard case for the provision, the essential truth is that the drafters of the CPSIA gave them no leeway to do "risk analysis" and the responsibility for that provision lies with the drafters and the consumer groups and other who appear to want a "risk free world" at any cost. While this decision was truly fore-ordained, whether this Commission is capable of making reasonable risk-based decisions to prevent excessive marketplace costs and enhance its use of its own resources is an issue that will bear watching.

jdh said...

Bottom line is the staff did NOT show that 100ppm limit was technologically feasible. They even stated in the package that it may not be feasible for certain product categories. On the contrary, there was overwhelming evidence, not to mention common sense, to show that it is not technologically feasible. Tenenbaum could have easily provided relief instead of pretending to be without options. The quesion is, what was the point of all the "courtesy" if she felt the law obligated her to let the limit drop to 100 ppm?

jdh said...

The mistake of not caring "that the costs of such a provision totally outstripped any safety benefits to consumers" is exactly why President Obama issued as EO stating "decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative)."

Anonymous said...

The statute allows CPSC to throw its body in front of the 100 ppm train only if it can find--under the very narrow criteria of the statutory definition--that 100 ppm is not feasible. If they had done so, they would have had to come up with an alternative--lower than 300 ppm limit. Given the limited data they had, and the fact that most firms have been meeting 100 ppm--not totally without glitches--for some time, and the Dems on the CPSC were not going to throw themselves in front of the train and have to justify why they did so to consumer groups, reporters, and powerful members of their party.
The bigger issue, since they all seem to agree that enforcement against inventory is a bad idea, is why the Republican members did not move for a stay of enforcement. Presumably, they did not do so because the Dems would take the position that they have asked Congress to do this and they simply cannot contravene the law. (At the same time, the CPSC may be in accord behind the scenes that they should not expend resources in any active enforcement effort against inventories for the next six months or so.)
If you want some of the CPSIA issues addressed, you need to educate your members of Congress--especially the Democrats--and let them know that taking no action is not a viable option. Whether reason can prevail in the current political climate is certainly open to question, however, not making the effort is a sure fire way to insure nothing changes.

Paul said...

In his book “The age of turbulence, p43” Greenspan wrote,
“… … to write clearly in short, declarative sentences,… …it was a skill I had to unlearn as chairman of the Fed.”

So Bob isn’t doing anything new. So much appreciation, so much conviction, so much heart, so much care, that I guess is meant to bring us to tears. There are just not much cheap tricks out there, are there Bob? And it doesn’t matter as long as Bob could keep talking softly on that high moral ground and make difficult decisions because of the sin in the language written by Congress. Small businesses would burn in sticks, and there is nothing the pure-hearted Bob could/would do about it. Is that right Bob?

From the appearance of the 3 democratic commissioners’ minds had already being set, I have very little doubt that the meeting isn’t meant to be just a Grand Show. If that’s the case, I must compliment particularly on Bob’s performance. Good Show, good acting Bob. Love the way that Bob talked softly, almost felt like a saint.

Anonymous said...

Next installment in "As The Stomach Turns..." UGH!!!"

Paul said...

It obvious safety is not the issue here. So if politic is the game and if the Dems Commissioners have any consideration with reasoning for the good of public, the Obama executive order actually had provided a way out. Just blame it on the president. But evidently, NO!! It is about some other agenda.

This is the part where I just don’t get it. Small businesses are the most efficient and crucial market entities for wealth distribution. A person live in a small Missouri town might not have a Harvard Degree to work for a fortune 500 company, but with hard work, she/he could run a small business and bring money and/or jobs back to the community.

With QE1, QE2, there is so much money out there. Just look at the Financial Statements of the banks, funds, and listed corporations. But these money is “NOT” channeling down to the general public. Forget about the fore coming 3 million mortgage defaults for a minute, just look at the unemployment, consumer spending… …, this is the economic reality that we are in.

If there is some other agenda, shouldn’t it be helping to channel the money back to the people by helping the small businesses rather talking softly on that hypocritical moral high ground?

Bob, I presume you value your own political career very much, and it is your role to be the voice of some higher ground Dems. Well, I don’t know you, but when something walks like a duck and quacks like a duck it probably is a duck. So, Bob, since you talk like a saint, I guess you are no duck.