CPSIA - The Futility of Protesting the CPSIA

With Congress about to sign-off on a CPSIA Amendment which seals the fate of the regulated community, for better or worse depending on who you are, the question of what remains is quite relevant.  With rights allocated and responsibilities delegated to a Dem-controlled CPSC Commission, what kind of justice can we expect in the future???

As if to answer this question, last week CPSC Chairman Inez Tenenbaum published a troubling Op-Ed dated July 28th ("CPSC Chief to Detractors: ‘Safety Delayed is Safety Denied’").  In her article, Ms. Tenenbaum asserted that Democrats on the CPSC Commission are responsible for many "major victories" over the resistance of the minority party Republicans:

"We have made great progress at CPSC, and at times, our achievements have come with support from the two Commissioners in the minority party. Though, consumers should know that vigorous resistance is the rule, rather than the exception, with these two Commissioners. Through a coordinated campaign, these Commissioners have sought to delay and distort our actions in an attempt to circumvent the will of American families and Congress. Their tactics have been unsuccessful, as demonstrated by the strength of the new safety measures we have established."

Democrats good, Republicans evil. . . .  She continues, openly accusing minority Commissioners of almost venally favoring pocketbook issues over safety:

"We faced another example of this obstructionism in our effort to make sure cribs are safe. From November 2007 to April 2010, there were 36 deaths associated with crib structural defects. To address this critical issue, the Commission voted unanimously last December to establish new crib safety rules. Sadly, two of my colleagues in the minority party then attempted to delay the rules from going into effect last month. They were for it, and then they were against it, all in an effort to put the interests of a few retailers over the interests of hundreds of thousands of parents and very young children."

Perhaps granting me an honorable mention as an irritant, Ms. T. goes on to lay claim to the higher moral ground.  As you know, this is all about the tug of war between good-and-evil . . . .

"It is ironic that the minority party Commissioners and certain cynical special interests continue to gesture wildly, alleging a failure to take the concerns of businesses into account, while many safety-conscious companies have been manufacturing, testing, and selling children’s products for nearly three years that meet and exceed the requirements set by Congress. The minority party’s approach does not solve problems and does not serve the public interest. The Consumer Product Safety Commission under my stewardship will not succumb to efforts to undermine this law. Like justice, safety delayed is safety denied." [Emphasis added]

[I can't let Ms. T get away with the "safety delayed is safety denied" baloney.  To accept her rationale, one must conclude that safety was at stake in the cited decisions.  Among her claims of "major victories" is the determination that 100 ppm is technologically feasible.  Her own staff indicated that this decision will have "minimal" impact on safety.  And the safety achieved by the decision?  No reply.  She also points to the new phthalates standard.  Her own agency has TWICE considered these same chemicals for safety risks and TWICE given them a clean bill of health.  Isn't it a stretch to call her new standards a "major victory" for consumers or to contend that safety was ever at stake?  Not if data is irrelevant to you.  As is to ensure her own blissful ignorance (and to avoid learning anything inconsistent with her political agenda), Ms. Tenenbaum has never asked for injury statistics to evaluate evidence of the utility of the new rules she KNOWS will choke business.  Why not?  Who wants to spoil a good thing?  Safety delayed is safety denied . . . .  "Safety" perhaps defined in terms of job security.]

Commissioners Nord and Northup replied to Tenenbaum's Op-Ed snarkiness, and you should read their replies. However, I think the real issue is how this Commission will handle its responsibilities once Congress bows out.  Congress is about to let the Commission take it from here.  Now what?

The Tenenbaum article raises a question in my mind.  Does Commission voting records give any insight into the Dems' willingness to listen or their interest in listening to contrary viewpoints?  Is it all so open-and-shut?  Do we even have a fighting chance with these people, given their moral self-justifications?  Commission voting statistics have never been analyzed publicly to my knowledge, so I put them together this afternoon. Please feel free to check my work - here are the Tenenbaum era CPSIA votes.

My tabulation excludes procedural votes and votes related to cribs and infant care, the phthalates CHAP and Pool safety. In other words, it is only those votes which relate to my advocacy on the core issues under the CPSIA. Notably, I am unable to access confidential votes - the spreadsheet only applies to votes cast in open sessions of the Commission.

There have been 46 votes since her confirmation, and 37 since she began to chair the meetings. Each and every decision of the Commission has been controlled by the Democrats. Each and every vote won by Democrats had all Dem Commissions in tow with two exceptions - the two stays objected to by Adler, an avowed stay-hater.  Every 3-2 vote was three Dems to two Republicans.  No doubt each vote was configured for Ms. Tenenbaum's consent - she has never voted against a proposed rule or ruling.

Think about that - all the Dems voted together on everything, except two dissents by one Commissioner on the same issue, the extension of a stay, and in those cases he wanted to be even less forgiving of reasonable business interests. For perspective on this, consider that this is the Commissioner who claims to "agonize" over every vote but always votes against even the mildest form of relief for business. He is also the one who stated that he wouldn't allow cost-benefit analysis to be performed "over my dead body".  He only veered away from his fellow Dems on two votes on stays.  What does that tell you?

After three years of advocacy and the considerable expenditure of cash, time and other resources by so many people affected by this law, it seems apparent from the voting data that nothing we ever said or any data we ever presented were in any way persuasive to the Dems. They were gracious in their expressions of gratitude for our participation in their processes, but given the outcomes, one must conclude that we simply enabled them to give the appearance of justice. After all, we got our day in court, or so they would have you believe. However, if anyone who comes before a particular judge is sentenced to death, one begins to wonder about justice after awhile.

The Dems have used slogans to justify their actions:

- "There's no safe level of lead."
- "Safety delayed is safety denied."
- "Over my dead body . . . ."

Is there a pattern in these slogans?

They are sanctimonious. They wreak of moral superiority, while at the same time pinning their work on other people. Ms. T. tells us that they were just carrying out the will of Congress.  Nevertheless, she would have you believe that their work is necessary and a triumph for you.

They are self-righteous. There's something smug about their contentions. They will block cost-benefit analysis with their dead bodies. They portray themselves as courageous heroes, opposing devious foes. Taking a page out of the estimable Jan Schakowsky's playbook, Tenenbaum labels those who oppose her as "certain cynical special interests". Conspiracy theories bulk up her slender reed of self-justification.

The slogans play to emotions and ignore legal precedent and data. Bob Adler's "How do you measure the life of a little baby?" is a great example. Bob Adler is a lawyer and knows full well that the law provides a solid and respected answer to this question. As one practitioner told me, this kind of assessment is done every day in our courts and by other agencies. Adler knows that brains short out when he mentions "little babies" and who can argue that anything is worth more than the life of a "little baby".  By invoking images of "little babies", Adler and Co. divert attention from incoherent rationales underlying their decisions.

[To save a "little baby", is it okay to eliminate one job? Ten jobs? 100 jobs? 1,000 jobs? 10,000 jobs? 100,000 jobs? 1,000,000 jobs? Where do we draw the line? The implication, if you listen to Mr. Adler (not that he ever listens to me), is that the value of a baby's life is infinite so no economic sacrifice is too great. He won't allow a cost-benefit analysis to be done, despite the fact that it is mandated by an Executive Order and is good law to boot, so the question will never answered.  But isn't it clear - the line must be drawn somewhere. We can't function as a society if it isn't.  Don't expect this kind of thinking as kong as Adler and Tenenbaum hold down the fort at the CPSC, however.]

The slogans are cynical, too. Tenenbaum's repeated request (four times by my count) in the hearing on 100 ppm that businesses are welcome, even encouraged, to file for exemptions from the technological feasibility decision is despicable and cynical. Cynical in a sincere voice and with a smile on your face is cynical all the same. The CPSC staff wrote up a 59-page analysis stating that EVERYTHING is technologically feasible.  She knows this.  Her encouragement can't and won't lead to exceptions - The CPSC staff have already "tied her hands".    Still, she persists.  Consider Ms. Tenenbaum's advice in her statement on the 100 ppm standard:

"Although the Commission already has voted on this issue today, if a manufacturer were to discover that it is not technologically feasible to manufacture a children’s product or category of children’s products, the agency always will consider a request for a technological feasibility determination through our normal petitioning process. During my tenure, the Commission has docketed and either has resolved or is considering several petitions requesting action on various issues. The criteria for any petition on the technological feasibility of achieving the .01 percent lead limit are laid out clearly by the statute and further explained in the staff briefing package. The process for writing a petition also is clearly set forth in the agency’s regulations. I encourage any business that discovers it manufactures a children’s product or category of children’s products for which it is not technologically feasible to meet the .01 percent limit to come to us with enough specific data to enable our staff to recommend that the Commission make a finding concerning technological feasibility under section 101(d) of the CPSIA. Our door always will be open to considering future requests. As always, for small businesses that may require additional guidance, our small business ombudsman stands ready to work to work with you on any of your concerns. I realize that this process has presented a challenge for manufacturers, and I commend those in industry who have worked so diligently to bring the lead levels in their products below .01 percent." [Emphasis added]

Makes me want to vomit. This is your government talking.  Or perhaps lying?

So as Congress closes the door on helping us, doling out relief to favored groups like ATVs and books, they left the rest of us to fend for ourselves. The issue of how any of this related to safety was never considered in the pending amendments. Congress also chose not to address the abuses of the panel of hanging judges at the helm of the CPSC. The result is painful and a reminder that fighting City Hall is pointless. In this case, the Dems in charge have proven they are beyond reach and will not listen. Further resistance seems futile.