In today's Desert Sun newspaper, John Paliwoda, Executive Director of the California Motorcycle Dealers Association, published an Op-Ed entitled "Note to Congress: Kids don't lick their ATVs". You're kidding!
A few salient take-aways:
a. Although ATVs and dirt bikes are now "banned hazardous materials" under the law because of trace levels of lead in metal parts like engine components, scientists agree that the risk of injury is "remote at best". Even the CPSC staff acknowledge this (in writing). Mr. Paliwoda notes that "there have been no cases of lead poisoning documented from children riding youth model ATVs". No one seems to care, however.
b. The CPSC acknowledges that children face a "far graver and more immediate risk" by being exposed to adult-sized ATVs than exposure to lead in metal components in youth-model ATVs. The very EXISTENCE of youth-model ATVs is the handiwork of the CPSC - so their ban reverses the safety gains earned by the Commission (work that actually saved lives). This ban of youth-model ATVs under the CPSIA is part of a larger political objective to ban ATV use by kids altogether, as publicly admitted by Cindy Pelligrini of the American Academy of Pediatrics. Subterfuge as public policy? Apparently. Still, Mr. Paliwoda observes: "The one thing that the government, ATV manufacturers, dealers and consumer groups all agree on is that the key to reducing injuries and fatalities to children riding ATVs is to keep riders younger than 16 off adult-size ATVs." Hmmm. Job well done, Congress!
c. The manufacturing and sale of youth-model ATVs has been severely curtailed by the law despite the temporary stay protecting manufacturers and retailers. Why? The stay of enforcement "failed because many manufacturers and dealers are not comfortable selling youth model powersports vehicles while the ban is on the books." And the impact on the industry? Mr. Paliwoda: "[For] motorcycle dealers in California, [the CPSIA] has been devastating."
Sadly, Mr. Paliwoda's reasoning and documentation will not likely sway any Dems. Why? Aren't they listening? No. Don't they care about data? Nope. Don't they care about the creation of jobs in their districts? Doesn't seem like it. What motivates them, then? It's certainly not children's safety, by all appearances. My best guess is that they want to be reelected as their top priority and feel that taking a reasoned stand to repair an idiotic law ostensibly "protecting" children is too politically dangerous to risk. The public can't be expected to actually think about the details, after all, and the rabid and equally uncomprehending media will certainly take the other side of any effort to bring relief to this suffocating law. Data be damned.
Or, you, your company, your market and your customers be damned.
PASS ECADA AND END THE CPSIA CHARADE!
Showing posts with label CPSIA Exemptions. Show all posts
Showing posts with label CPSIA Exemptions. Show all posts
Thursday, June 9, 2011
Monday, April 4, 2011
CPSIA - Analysis of Pending House CPSIA Amendment (Sections 1 and 2)
[This is a long essay - I apologize. The subject is important.]
In anticipation of this week's hearing on the pending House CPSIA Amendment, I wanted to share my thoughts on the present draft.
But first, a little perspective:
The debate over the CPSIA amendment has propitious timing. Fate has provided us with a new vantage point on lead mania. In a sad parody of the junk science underlying the CPSIA, the EPA this week assured Americans that it's safe to feed mildly radioactive milk laced with bits of nuclear meltdown to infants. What?! In a March 30 press release (available on the EPA website), the EPA instructs us to keep it all in perspective:
"Results from a screening sample taken March 25 from Spokane, Wash. detected 0.8 pCi/L of iodine-131, which is more than 5,000 times lower than the Derived Intervention Level set by the U.S. Food and Drug Administration. These types of findings are to be expected in the coming days and are far below levels of public health concern, including for infants and children. Iodine-131 has a very short half-life of approximately eight days, and the level detected in milk and milk products is therefore expected to drop relatively quickly. 'Radiation is all around us in our daily lives, and these findings are a minuscule amount compared to what people experience every day. For example, a person would be exposed to low levels of radiation on a round trip cross country flight, watching television, and even from construction materials,' said Patricia Hansen, an FDA senior scientist." [Emphasis added]
The CPSIA, on the other hand, is built around the idea that there is "no safe level for lead". The CPSC has uniformly rejected exemption requests on the grounds that there is no proof that the products won't emit ANY lead - meaning one atom. The CPSC staff has already acknowledged that there are no materials on Earth that can be relied upon to not emit a single atom of lead. I would call that "limited" options. Then again, perhaps space exploration will save us from this law . . . .
So the EPA blesses feeding milk infused with Japanese nuclear material to babies, but even a single atom of lead is intolerable to Congress and the CPSC.
Call me crazy, but they BOTH can't be right. And it's obvious who knows what they're doing in this case - it's the EPA.
It's time to drop the rhetoric and rebuild the CPSIA to provide appropriate protection WHERE IT'S ACTUALLY NEEDED and strip everything else away. Period. The Emperor has no clothes.
Section 1 Definition of Children's Product: This open-ended section attempts to lay the groundwork for trimming the coverage of the CPSIA. Notice that the age limits are blank. This probably reflects internal divisions among the Republicans on how to set age limits or how to position this law for passage in the Senate and then into law.
Notably, an age limit of seven years of age passed the Senate back in 2008. That seems to be the default age that may get penciled in, simply because some people believe it may be easier to get that age limit through the Senate. I believe this is an untested hypothesis, unfortunately. The consumer groups are going to scream no matter what - they hate most of this amendment, and will make it tough on the lefties in the House and particularly in the Senate to support any rational trimming of these limits. Even seven years of age may find more than token resistance in the Senate. Of course, that does not mean we shouldn't push for the right age limits.
Were it up to me alone, I would probably pick a range defined as products SUITABLE FOR children five years of age or younger. Five years of age pretty much defines the outside limit of age inappropriate behavioral risks for normal children. Injury statistics and human factors analysis do not identify substantial risks above this age. [It provides a safe "margin of error", if one is actually needed.] I think the definition must eliminate the concept of manufacturer's "intent" because the state of mind of the maker has nothing to do with safety. The intrinsic attributes of the product are what defines risk. In addition, the fact that we must GUESS as to the state of mind of the manufacturer makes it an unworkable standard. An objective standard based on traditional notions of human factor analysis would work best.
Even more fundamentally, I question whether it is really the job of Congress to set these age limits. As we know, Congress has already made a big mess as the self-appointed substitute for the CPSC. Age limits for safety standards should be based on scientific inquiry, human factors analysis, risk assessment, and so on. It is presumptuous for anyone to conclude that Congress can do it better than the Ph.D.s at the CPSC. Of course, in this politicized environment, in which trust in the agency has been bruised beyond recognition, I am somewhat sympathetic to Republicans who feel more secure setting the rules in concrete. If, however, we want to get out of CPSIA hell, we need to restore order in the safety universe. The CPSC should be given responsibility for making these determinations on a MANDATED RISK ASSESSMENT BASIS.
I hate to go down the path of one sizes fits all age limits, myself. Is there ANY reason to set age ranges that apply equally to toys, books, t-shirts, dirt bikes and ATVs, CDs and DVDs and educational products? Of course not. Who should make this determination? The agency with the experience and the professional staff trained to make these judgments - the CPSC.
PLEASE NOTE - this is a critical part of this amendment. This section defines who is subject to this awful law and who is not. Don't misunderstand which provisions are driving this ship - this provisions controls your legal liability, your exposure to regulatory oversight, penalties, enforcement, government intrustion generally. Testing relief in this amendment MUST BE seen in the context of the limitations here.
With that thought in mind, I would remind my readers of the scarcity of evidence of lead injuries from children's products and of lead-in-substrate victims in general. I believe the entire basis of this law is a scam (or at a minimum, a hideous misunderstanding of the data) and CHALLENGE the zealots to PROVE a need for the suffocating regulation of lead-in-substrate in these products in these industries. If lead victims cannot be identified and their lead injuries explained, then there is no demonstrated need for the legislative hammer - no one will benefit (no one will be safer because they weren't in danger in the first place). The consumer groups and left wingers have had three years to trot out the victims. There are NONE. Shame on them for spreading fear. I say put up . . . or shut up.
Section 2 Application of Lead Limit:
Subsection (a) is a classic "kick the can down the road" compromise in which the 100 ppm lead standard will be implemented by the CPSC in four years, not three, pushing the prospective date of implementation out to August 2012. Not good enough, guys! The structure of this part of the law, requiring that the CPSC implement the new standard or a standard between 100 ppm and 300 ppm based on "technological feasibility" is a direct INSTRUCTION by Congress to the CPSC to reduce the standard. The CPSC arguably has no choice in the matter. [Now you know who to blame.]
You can see this issue discussed in gory detail in this snippet from my testimony on the 100 ppm in front of the CPSC Commission on February 16th. Commissioner Bob Adler asks me if I want him to BREAK THE LAW by not implementing the new standard. BREAK THE LAW, BOB!
This is no way to regulate, no way to govern a country! ALL references to the 100 ppm standard should be DROPPED from the law. As noted above, and in countless blogposts here, there are no identified lead victims from children's products - so how is lowering the lead standard at enormous cost and economic risk of benefit to ANYONE? The 112th Congress can do better than repeat the errors of the 110th Congress.
Should there be a need for a lower standard based on real risk, the agency has sufficient regulatory authority under the CPSA and FHSA to lower standards to protect children in a rulemaking process. Congress does not need to meddle further in this area.
Subsection (b) introduces a new and uncorrelated "standard" for risk under the CPSA: "presents an unreasonable risk to children’s health". This is bad draftsmanship. There is a standard already in use in the CPSA and the FHSA, namely "substantial product hazard". The amendment should MANDATE that this term ALONE should be the standard for all action by the agency.
Subsection (c) makes the application of the lead standards prospective. [In Section 6, the amendment makes the same change for phthalates.] This is mainly intended to head off market disruption and distrust over the new 100 ppm standard. Of course, in my formulation, this is unnecessary if the 100 ppm standard goes away. I would point out that the entire idea of this kind of downward ratcheting of standards implies that what was safe yesterday is no longer safe today, which is crazy.
Subsection (d) relates to a revised exemption process. The "any lead" standard would go away, in faver of some limited exceptions. Ironically, this provision expands the application of the small parts rules to products for older children like youth model ATVs. This seems like a big error to me (and a bad structure for the law). If it's foreseeable that a cap on an ATV spark plug could come off and go through a small parts cylinder, it loses its eligibility for the exception. Hmmm. This may require some further thought . . . .
There would no longer be an exemption process under the CPSIA. So if you are in, you are "in" and can't get out no matter what. The drafters seem to have settled on small parts as the way lead poisoning is "transmitted" or may be transmitted. I am not sure how this was determined, since there are no victim case histories to examine. The presumption is that mouthing is how poisoning occurs, but then again, how many poisoning victims (from children's productrs, not from lead-in-paint) can be found? Zero? If we have never seen a victim, how can we be so sure there is ANY mechanism for this dreaded outcome? Is chewing on ATVs, dirt bikes, the ink end of a pen, rocks, and so on, really such a big health risk that we must fight for years over it?
Hmmm.
The subsection also artciulates a new (presumably relaxed) standard for steel, copper and aluminum alloys. The new standard is still blank. I sure hope the definition of "steel, copper, and aluminum alloys" is crystal clear and I likewise hope that this covers the waterfront for metal used in all current products and future materials used in similar circumstances. I guess we'll find out in time . . . . It appears to me to be simply a better formulation of the originally defective legislative concept. But still defective. Remember, no victims . . . .
The drafters have introduced doubt about what's in and what's out. Is a grommet in or out? Says the new provision: you lose the exemption if "after any necessary assembly of the product and after the product has been subjected to reasonably foreseeable conditions of use and abuse, the part or any portion of the part becomes detached from the product and such part or portion of the part fits entirely within such cylinder." How are you supposed to figure this out with confidence? Your guess is as good as mine. This kind of rule does NOT work in the real world. Sorry. . . .
By the way, this provision seems to snag items incorporating metal balls. While you may or may not like those products, this provision probably will give them no relief whatsoever.
I am even more hostile to their so-called "de minimus" exception. "De minimus" ingestion of lead is okay under this rule (whatever that is - can't wait for the three year fight over "Congressional intent") BUT only if it does not fit into a small parts cylinder (same as the metals formulation). This is patently ridiculous and will give no relief to anyone. Why are the Republicans playing games here? There is no safe level for over-compromised legislation . . . .
This is the mechanism that the House is providing to "save" rhinestones, btw. To get rhinestones into the market, you will need a methodology to calculate the amount of lead a rhinestone emits and document it. You are a "merchant of death", so you must keep records of how much of this "lethal" substance you subject children to. Excessive regulation, perhaps??? As I have said, compromise is not always the way to build good legislation. The Republicans need to steel themselves to fix this law once and for all.
The concept of the "de minimus" exception may be off-base. It is worth noting that blood lead levels are CONCENTRATIONS (mass divided by volume). In other words, different levels of lead ingestion will be required for a baby and a big child to develop the same blood lead levels. The persistence of high blood lead levels also has a big impact on the likelihood of injury, so wouldn't daily lead ingestion rates be a better measure of the likelihood injury? The "de minimus" standard seems to miss the point entirely. I get the impression that this amendment was drafted entirely in the context of the (defective) CPSIA and thus carries froward some of its basic flaws and misconceptions. Square pegs are not good fits for round holes. It may not be possible to "fix" the CPSIA by layering more and more rules on top of the underlying law. Some things may be best left unregulated with a reliance on the substantial product hazard standard.
Perhaps John Dingell was onto something with the original conception of the CPSA in 1972.
Needless to say, this hyper-technical "de minimus" provision will not work for small business. None of us know how to make a "de minimus" assessment and besides, the requirement to document our methods is just an invitation for tort lawsuits. If we will be made to create evidence to be used against us, I would rather be in another business. The crafters, the small toy merchants, the t-shirt vendors, the book printers, will also howl over the need to engage in silly and pointless technical evaluations of nonexistent risks by calculating the amount of lead ingested from use of their products. This is just waste, waste, waste. Again, we should not compromise ourselves to hell in this amendment. If Congress is going to try fix the damn thing, then fix it right.
As noted above, the substantial product hazard /standard is sufficient to empower the CPSC to do everything it needs to do. The legislative structure is in place and tested over decades. Why not tell the CPSC to do its job, and stop telling us how to run our businesses?
Finally, subsection (d)(2) entirely excludes used products from the CPSIA other than children's metal jewelry and products actually known by the sellers to violate the lead standards. This relief is long overdue - I appreciate that the committee is prepared to do the right thing for this group of CPSIA victims.
Of course, this may beg the question. If Congress is able to dispense mercy on used products, what about all the other absurd victms like bicycles, rhinestones, ATVs and dirt bikes, books, rhinestones, pens, educational products, CDs and DVDs and so on? Why stop at used products? Why even START at used products? Of course, they deserve help but do they deserve it anymore than the rest of us? They are senseless victims of this law, of course - but stand in line! So why not keep the carving knife out and free some more corporate "unintended" victims? I think the problem here is political, not policy.
Ugh.
In anticipation of this week's hearing on the pending House CPSIA Amendment, I wanted to share my thoughts on the present draft.
But first, a little perspective:
The debate over the CPSIA amendment has propitious timing. Fate has provided us with a new vantage point on lead mania. In a sad parody of the junk science underlying the CPSIA, the EPA this week assured Americans that it's safe to feed mildly radioactive milk laced with bits of nuclear meltdown to infants. What?! In a March 30 press release (available on the EPA website), the EPA instructs us to keep it all in perspective:
"Results from a screening sample taken March 25 from Spokane, Wash. detected 0.8 pCi/L of iodine-131, which is more than 5,000 times lower than the Derived Intervention Level set by the U.S. Food and Drug Administration. These types of findings are to be expected in the coming days and are far below levels of public health concern, including for infants and children. Iodine-131 has a very short half-life of approximately eight days, and the level detected in milk and milk products is therefore expected to drop relatively quickly. 'Radiation is all around us in our daily lives, and these findings are a minuscule amount compared to what people experience every day. For example, a person would be exposed to low levels of radiation on a round trip cross country flight, watching television, and even from construction materials,' said Patricia Hansen, an FDA senior scientist." [Emphasis added]
The CPSIA, on the other hand, is built around the idea that there is "no safe level for lead". The CPSC has uniformly rejected exemption requests on the grounds that there is no proof that the products won't emit ANY lead - meaning one atom. The CPSC staff has already acknowledged that there are no materials on Earth that can be relied upon to not emit a single atom of lead. I would call that "limited" options. Then again, perhaps space exploration will save us from this law . . . .
So the EPA blesses feeding milk infused with Japanese nuclear material to babies, but even a single atom of lead is intolerable to Congress and the CPSC.
Call me crazy, but they BOTH can't be right. And it's obvious who knows what they're doing in this case - it's the EPA.
It's time to drop the rhetoric and rebuild the CPSIA to provide appropriate protection WHERE IT'S ACTUALLY NEEDED and strip everything else away. Period. The Emperor has no clothes.
Section 1 Definition of Children's Product: This open-ended section attempts to lay the groundwork for trimming the coverage of the CPSIA. Notice that the age limits are blank. This probably reflects internal divisions among the Republicans on how to set age limits or how to position this law for passage in the Senate and then into law.
Notably, an age limit of seven years of age passed the Senate back in 2008. That seems to be the default age that may get penciled in, simply because some people believe it may be easier to get that age limit through the Senate. I believe this is an untested hypothesis, unfortunately. The consumer groups are going to scream no matter what - they hate most of this amendment, and will make it tough on the lefties in the House and particularly in the Senate to support any rational trimming of these limits. Even seven years of age may find more than token resistance in the Senate. Of course, that does not mean we shouldn't push for the right age limits.
Were it up to me alone, I would probably pick a range defined as products SUITABLE FOR children five years of age or younger. Five years of age pretty much defines the outside limit of age inappropriate behavioral risks for normal children. Injury statistics and human factors analysis do not identify substantial risks above this age. [It provides a safe "margin of error", if one is actually needed.] I think the definition must eliminate the concept of manufacturer's "intent" because the state of mind of the maker has nothing to do with safety. The intrinsic attributes of the product are what defines risk. In addition, the fact that we must GUESS as to the state of mind of the manufacturer makes it an unworkable standard. An objective standard based on traditional notions of human factor analysis would work best.
Even more fundamentally, I question whether it is really the job of Congress to set these age limits. As we know, Congress has already made a big mess as the self-appointed substitute for the CPSC. Age limits for safety standards should be based on scientific inquiry, human factors analysis, risk assessment, and so on. It is presumptuous for anyone to conclude that Congress can do it better than the Ph.D.s at the CPSC. Of course, in this politicized environment, in which trust in the agency has been bruised beyond recognition, I am somewhat sympathetic to Republicans who feel more secure setting the rules in concrete. If, however, we want to get out of CPSIA hell, we need to restore order in the safety universe. The CPSC should be given responsibility for making these determinations on a MANDATED RISK ASSESSMENT BASIS.
I hate to go down the path of one sizes fits all age limits, myself. Is there ANY reason to set age ranges that apply equally to toys, books, t-shirts, dirt bikes and ATVs, CDs and DVDs and educational products? Of course not. Who should make this determination? The agency with the experience and the professional staff trained to make these judgments - the CPSC.
PLEASE NOTE - this is a critical part of this amendment. This section defines who is subject to this awful law and who is not. Don't misunderstand which provisions are driving this ship - this provisions controls your legal liability, your exposure to regulatory oversight, penalties, enforcement, government intrustion generally. Testing relief in this amendment MUST BE seen in the context of the limitations here.
With that thought in mind, I would remind my readers of the scarcity of evidence of lead injuries from children's products and of lead-in-substrate victims in general. I believe the entire basis of this law is a scam (or at a minimum, a hideous misunderstanding of the data) and CHALLENGE the zealots to PROVE a need for the suffocating regulation of lead-in-substrate in these products in these industries. If lead victims cannot be identified and their lead injuries explained, then there is no demonstrated need for the legislative hammer - no one will benefit (no one will be safer because they weren't in danger in the first place). The consumer groups and left wingers have had three years to trot out the victims. There are NONE. Shame on them for spreading fear. I say put up . . . or shut up.
Section 2 Application of Lead Limit:
Subsection (a) is a classic "kick the can down the road" compromise in which the 100 ppm lead standard will be implemented by the CPSC in four years, not three, pushing the prospective date of implementation out to August 2012. Not good enough, guys! The structure of this part of the law, requiring that the CPSC implement the new standard or a standard between 100 ppm and 300 ppm based on "technological feasibility" is a direct INSTRUCTION by Congress to the CPSC to reduce the standard. The CPSC arguably has no choice in the matter. [Now you know who to blame.]
You can see this issue discussed in gory detail in this snippet from my testimony on the 100 ppm in front of the CPSC Commission on February 16th. Commissioner Bob Adler asks me if I want him to BREAK THE LAW by not implementing the new standard. BREAK THE LAW, BOB!
This is no way to regulate, no way to govern a country! ALL references to the 100 ppm standard should be DROPPED from the law. As noted above, and in countless blogposts here, there are no identified lead victims from children's products - so how is lowering the lead standard at enormous cost and economic risk of benefit to ANYONE? The 112th Congress can do better than repeat the errors of the 110th Congress.
Should there be a need for a lower standard based on real risk, the agency has sufficient regulatory authority under the CPSA and FHSA to lower standards to protect children in a rulemaking process. Congress does not need to meddle further in this area.
Subsection (b) introduces a new and uncorrelated "standard" for risk under the CPSA: "presents an unreasonable risk to children’s health". This is bad draftsmanship. There is a standard already in use in the CPSA and the FHSA, namely "substantial product hazard". The amendment should MANDATE that this term ALONE should be the standard for all action by the agency.
Subsection (c) makes the application of the lead standards prospective. [In Section 6, the amendment makes the same change for phthalates.] This is mainly intended to head off market disruption and distrust over the new 100 ppm standard. Of course, in my formulation, this is unnecessary if the 100 ppm standard goes away. I would point out that the entire idea of this kind of downward ratcheting of standards implies that what was safe yesterday is no longer safe today, which is crazy.
Subsection (d) relates to a revised exemption process. The "any lead" standard would go away, in faver of some limited exceptions. Ironically, this provision expands the application of the small parts rules to products for older children like youth model ATVs. This seems like a big error to me (and a bad structure for the law). If it's foreseeable that a cap on an ATV spark plug could come off and go through a small parts cylinder, it loses its eligibility for the exception. Hmmm. This may require some further thought . . . .
There would no longer be an exemption process under the CPSIA. So if you are in, you are "in" and can't get out no matter what. The drafters seem to have settled on small parts as the way lead poisoning is "transmitted" or may be transmitted. I am not sure how this was determined, since there are no victim case histories to examine. The presumption is that mouthing is how poisoning occurs, but then again, how many poisoning victims (from children's productrs, not from lead-in-paint) can be found? Zero? If we have never seen a victim, how can we be so sure there is ANY mechanism for this dreaded outcome? Is chewing on ATVs, dirt bikes, the ink end of a pen, rocks, and so on, really such a big health risk that we must fight for years over it?
Hmmm.
The subsection also artciulates a new (presumably relaxed) standard for steel, copper and aluminum alloys. The new standard is still blank. I sure hope the definition of "steel, copper, and aluminum alloys" is crystal clear and I likewise hope that this covers the waterfront for metal used in all current products and future materials used in similar circumstances. I guess we'll find out in time . . . . It appears to me to be simply a better formulation of the originally defective legislative concept. But still defective. Remember, no victims . . . .
The drafters have introduced doubt about what's in and what's out. Is a grommet in or out? Says the new provision: you lose the exemption if "after any necessary assembly of the product and after the product has been subjected to reasonably foreseeable conditions of use and abuse, the part or any portion of the part becomes detached from the product and such part or portion of the part fits entirely within such cylinder." How are you supposed to figure this out with confidence? Your guess is as good as mine. This kind of rule does NOT work in the real world. Sorry. . . .
By the way, this provision seems to snag items incorporating metal balls. While you may or may not like those products, this provision probably will give them no relief whatsoever.
I am even more hostile to their so-called "de minimus" exception. "De minimus" ingestion of lead is okay under this rule (whatever that is - can't wait for the three year fight over "Congressional intent") BUT only if it does not fit into a small parts cylinder (same as the metals formulation). This is patently ridiculous and will give no relief to anyone. Why are the Republicans playing games here? There is no safe level for over-compromised legislation . . . .
This is the mechanism that the House is providing to "save" rhinestones, btw. To get rhinestones into the market, you will need a methodology to calculate the amount of lead a rhinestone emits and document it. You are a "merchant of death", so you must keep records of how much of this "lethal" substance you subject children to. Excessive regulation, perhaps??? As I have said, compromise is not always the way to build good legislation. The Republicans need to steel themselves to fix this law once and for all.
The concept of the "de minimus" exception may be off-base. It is worth noting that blood lead levels are CONCENTRATIONS (mass divided by volume). In other words, different levels of lead ingestion will be required for a baby and a big child to develop the same blood lead levels. The persistence of high blood lead levels also has a big impact on the likelihood of injury, so wouldn't daily lead ingestion rates be a better measure of the likelihood injury? The "de minimus" standard seems to miss the point entirely. I get the impression that this amendment was drafted entirely in the context of the (defective) CPSIA and thus carries froward some of its basic flaws and misconceptions. Square pegs are not good fits for round holes. It may not be possible to "fix" the CPSIA by layering more and more rules on top of the underlying law. Some things may be best left unregulated with a reliance on the substantial product hazard standard.
Perhaps John Dingell was onto something with the original conception of the CPSA in 1972.
Needless to say, this hyper-technical "de minimus" provision will not work for small business. None of us know how to make a "de minimus" assessment and besides, the requirement to document our methods is just an invitation for tort lawsuits. If we will be made to create evidence to be used against us, I would rather be in another business. The crafters, the small toy merchants, the t-shirt vendors, the book printers, will also howl over the need to engage in silly and pointless technical evaluations of nonexistent risks by calculating the amount of lead ingested from use of their products. This is just waste, waste, waste. Again, we should not compromise ourselves to hell in this amendment. If Congress is going to try fix the damn thing, then fix it right.
As noted above, the substantial product hazard /standard is sufficient to empower the CPSC to do everything it needs to do. The legislative structure is in place and tested over decades. Why not tell the CPSC to do its job, and stop telling us how to run our businesses?
Finally, subsection (d)(2) entirely excludes used products from the CPSIA other than children's metal jewelry and products actually known by the sellers to violate the lead standards. This relief is long overdue - I appreciate that the committee is prepared to do the right thing for this group of CPSIA victims.
Of course, this may beg the question. If Congress is able to dispense mercy on used products, what about all the other absurd victms like bicycles, rhinestones, ATVs and dirt bikes, books, rhinestones, pens, educational products, CDs and DVDs and so on? Why stop at used products? Why even START at used products? Of course, they deserve help but do they deserve it anymore than the rest of us? They are senseless victims of this law, of course - but stand in line! So why not keep the carving knife out and free some more corporate "unintended" victims? I think the problem here is political, not policy.
Ugh.
Sunday, February 27, 2011
CPSIA - House Hearings Questions about Rock Labels
Rep Butterfield questioned me about whether we REALLY needed to place labels on our rock kits indicating that our rocks might contain lead. As you may recall, I wrote about this last week and provided the clear explanation that the CPSIA bans the sale of any children's product which has components that may contain lead. That includes rocks in rock kits. Oops. I have embedded the clip of his query below, followed by a clip where Rep. Cassidy (a medical doctor) attempts to clarify the situation further.
I think it is important to note that Mr. Butterfield was making a point he believed in. He was gracious to me and my children before the hearing and I don't wish to question his intelligence here. I mean no insult or disrespect. Actually, the implication of his question is significant. He had days to study up on this question (he had a copy of my remarks in advance) and relied on Democratic counsel to the committee to analyze this legal point. He and his lawyers got it plainly wrong. As you will see below, Nancy Cowles also fumbled this same ball. The law CLEARLY requires this label of me, and it's THEIR law (the CPSIA). So what do I conclude? The Dems and the safety zealots don't understand the workings of the law they so vigorously defend. I believe this speaks directly to the challenge operating businesses face. If the authors don't get it, how are we supposed to? The answer is self-evident.
The question of WHY they continue to push so hard for a law they don't understand remains open. I don't think we can assert that they are bad people or dumb. If that's the case, and it is, what are they up to? I will chip away at this point in coming days.
Rep. Butterfield on rocks:
Rep. Cassidy on rocks:
I think it is important to note that Mr. Butterfield was making a point he believed in. He was gracious to me and my children before the hearing and I don't wish to question his intelligence here. I mean no insult or disrespect. Actually, the implication of his question is significant. He had days to study up on this question (he had a copy of my remarks in advance) and relied on Democratic counsel to the committee to analyze this legal point. He and his lawyers got it plainly wrong. As you will see below, Nancy Cowles also fumbled this same ball. The law CLEARLY requires this label of me, and it's THEIR law (the CPSIA). So what do I conclude? The Dems and the safety zealots don't understand the workings of the law they so vigorously defend. I believe this speaks directly to the challenge operating businesses face. If the authors don't get it, how are we supposed to? The answer is self-evident.
The question of WHY they continue to push so hard for a law they don't understand remains open. I don't think we can assert that they are bad people or dumb. If that's the case, and it is, what are they up to? I will chip away at this point in coming days.
Rep. Butterfield on rocks:
Rep. Cassidy on rocks:
Tuesday, May 11, 2010
CPSIA - Waxman Amendment Update
The Democrats' stonewall over the Waxman CPSIA Amendment continues unabated after the April 29th hearing. Do you think they were humming loudly while I gave testimony???
Anyhow, I am in possession of a memo from the House Republicans (led by Rep. Joe Barton, R-TX) discussing the state of the CPSIA "negotiation", such as it is:
"[Here] is the list of 'targeted areas' we sent last Tuesday [to Waxman's staff]. This is by no means a comprehensive list of topics we would like to eventually address, but it is the list of areas in which it may be possible to find compromise and that would greatly expand the sphere of relief to affected businesses of your size. To date, I am unaware of a response."
No response from Waxman. I guess this really isn't a big deal, huh?
At the very same time they are stonewalling progress, the Democrats are taking pains to portray the Republicans as "obstructionist". We have been hearing this for weeks. Recently, the Dems have even sunk to demanding that the victims of the law pressure the Republicans to fall in line. What a sad, sick twist in a very sorry tale. The memo continues:
"I want to emphasize to you how important a legislative fix is for Mr. Barton – he is not being 'obstructionist'. Over the last 18 months we sent numerous letters and verbal requests for a hearing at which people could share how CPSIA impacted their businesses and to hear suggestions on the best way to address the problems created by CPSIA. Those requests were sometimes ignored but always rebuffed until 2 weeks ago. Additionally, Mr. Barton and most of the E&C minority introduced a fix bill in March 2009, which the Majority refused to even discuss, let alone mark up. The Majority finally met with us in January to discuss CPSIA. At that meeting, we discussed those areas we believed needed to be addressed. We were told we had to work within the four corners of their legislative language. We acquiesced in an effort to see something accomplished and proceeded to discuss only ways to improve their proposed language. All of our requests, other than the concept of small business relief (I say 'concept' because we never discussed details, only that such relief would be necessary), were denied."
The Dems' fantastic accusation of Republican obstruction is meant to sucker you into believing that the Dems are your "friend" and the Republicans (notably Mr. Barton) are holding the democratic process hostage. This is certainly untrue on both accounts. The Dems hold a 13-seat majority on the House Energy and Commerce Committee and have demonstrated time and again their ability to pass bills without Republican support (think health care). The Republicans would LOVE IT if they had the capacity to obstruct . . . but they don't. Unless you think the Waxman Amendment and its utter disregard of your pain is some sort of gift, the notion of Dems' as "friend" does not compute.
Barton is out to fix the bill once and for all. Unfortunately, he is being limited in his approach by the even-intransigent Waxman: "Note, lowering the age to 7 years is not in the list below. That is off the negotiation table per the Majority staff, but they are aware this is a key point for our bosses and that they should expect an amendment should we get to markup. Narrowing the scope of this bill is the single most frequently heard recommendation from everyone on the affected spectrum, including some CPSC staff (though obviously not the Chairman). Of course, lowering the age is also the best way we can think of to ensure [small businesses] will find relief – our bosses are just not convinced there any “alternative testing methods” exist, and if there are, how affordable they may be or how quickly the CPSC can move to bless those methods. Further, we are concerned the CPSC is vulnerable to legal challenge if and when it makes such a determination, and without that determination, this bill gives no relief to any 'small batch manufacturer.' . . . I want to point out our main goal here is to make sure any legislative fix actually fixes the problems created with CPSIA. As a matter of principle, our bosses believe that no business should be left out in the cold by this bill." [Emphasis added]
I want to reiterate that there are NO alternative testing methods known to the CPSC that would assure compliance. NONE, ZIPPO, NADA. It's a scam that the Dems persist in propogating. The issue about legal challenge is yet another huge worry for those businesses dependent on REAL relief.
It is a relief to know SOMEONE is concerned to make sure you and I aren't left out in the cold. I think this bold political stance is downright heroic. Having fought basically full-time for 18 months, I have become accustomed to the cold shoulder from Democrats, as though I was some kind of criminal or some other kind of societal scum. Actually, I make educational products with a remarkable record of safety and compliance with law. The support from Barton and the Republicans is literally a godsend.
The Republican list of "asks" is not perfect, but it is practical and has good potential to help. It's not the optimal list, which they acknowledge, but it is a starting point for fixing a terrible law. The list is below for your review.
The Republicans deserve your support. They have also earned my thanks. With people like Joe Barton in the mix, there still is hope of real relief . . . someday. Henry Waxman, where are you?
"· Insert legislative language permitting the CPSC to grant exceptions for entire product categories. Current language permits exception for “a specific product or material” but does not permit the exclusion of an entire category (e.g., science equipment for schools, bikes, motorized recreation vehicles, or brass musical instruments).
· Direct the CPSC to act sua sponte to exclude categories of products based on least risk. E.g., leather saddles, golf clubs, microscopes or other science equipment, children’s ball point pens, musical instruments, etc. Timeline should be no later than the end of FY 2010 due to the February 2011 expiration of the stay on testing and certification. CPSC must also issue a notice of those products it will initially review for such exception.
· If the CPSC reviews a specific product petition and chooses to grant the petition, require the CPSC to grant a product category-wide exclusion unless significant safety concerns exist.
· Remove the ability to provide an expiration date on exclusions. If a product is proven to have no measurable adverse impact, it should be permitted for sale. Manufacturers require certainty for both the initial investment in a petition (estimates range from $25,000 to $50,000 per).
· Permit any “alternative testing” schemes blessed by CPSC to be used by any business. Alternatively, increase the size of businesses defined as “small batch manufacturers” under the bill.
· New standards added to the F-963 toy standard should, as a default, not be subject to [Third Party Testing]. The CPSC should have the discretionary authority to mandate either [Third Party Testing] or alternative testing methods, however.
· Eliminate the first two prongs of the exclusion standard. If an item is proven to have no measurable adverse impact (third prong), it will not matter if the item is designed to be/can be put in a child’s mouth (second prong), or if the item requires lead for a functional purpose (first prong)."
Anyhow, I am in possession of a memo from the House Republicans (led by Rep. Joe Barton, R-TX) discussing the state of the CPSIA "negotiation", such as it is:
"[Here] is the list of 'targeted areas' we sent last Tuesday [to Waxman's staff]. This is by no means a comprehensive list of topics we would like to eventually address, but it is the list of areas in which it may be possible to find compromise and that would greatly expand the sphere of relief to affected businesses of your size. To date, I am unaware of a response."
No response from Waxman. I guess this really isn't a big deal, huh?
At the very same time they are stonewalling progress, the Democrats are taking pains to portray the Republicans as "obstructionist". We have been hearing this for weeks. Recently, the Dems have even sunk to demanding that the victims of the law pressure the Republicans to fall in line. What a sad, sick twist in a very sorry tale. The memo continues:
"I want to emphasize to you how important a legislative fix is for Mr. Barton – he is not being 'obstructionist'. Over the last 18 months we sent numerous letters and verbal requests for a hearing at which people could share how CPSIA impacted their businesses and to hear suggestions on the best way to address the problems created by CPSIA. Those requests were sometimes ignored but always rebuffed until 2 weeks ago. Additionally, Mr. Barton and most of the E&C minority introduced a fix bill in March 2009, which the Majority refused to even discuss, let alone mark up. The Majority finally met with us in January to discuss CPSIA. At that meeting, we discussed those areas we believed needed to be addressed. We were told we had to work within the four corners of their legislative language. We acquiesced in an effort to see something accomplished and proceeded to discuss only ways to improve their proposed language. All of our requests, other than the concept of small business relief (I say 'concept' because we never discussed details, only that such relief would be necessary), were denied."
The Dems' fantastic accusation of Republican obstruction is meant to sucker you into believing that the Dems are your "friend" and the Republicans (notably Mr. Barton) are holding the democratic process hostage. This is certainly untrue on both accounts. The Dems hold a 13-seat majority on the House Energy and Commerce Committee and have demonstrated time and again their ability to pass bills without Republican support (think health care). The Republicans would LOVE IT if they had the capacity to obstruct . . . but they don't. Unless you think the Waxman Amendment and its utter disregard of your pain is some sort of gift, the notion of Dems' as "friend" does not compute.
Barton is out to fix the bill once and for all. Unfortunately, he is being limited in his approach by the even-intransigent Waxman: "Note, lowering the age to 7 years is not in the list below. That is off the negotiation table per the Majority staff, but they are aware this is a key point for our bosses and that they should expect an amendment should we get to markup. Narrowing the scope of this bill is the single most frequently heard recommendation from everyone on the affected spectrum, including some CPSC staff (though obviously not the Chairman). Of course, lowering the age is also the best way we can think of to ensure [small businesses] will find relief – our bosses are just not convinced there any “alternative testing methods” exist, and if there are, how affordable they may be or how quickly the CPSC can move to bless those methods. Further, we are concerned the CPSC is vulnerable to legal challenge if and when it makes such a determination, and without that determination, this bill gives no relief to any 'small batch manufacturer.' . . . I want to point out our main goal here is to make sure any legislative fix actually fixes the problems created with CPSIA. As a matter of principle, our bosses believe that no business should be left out in the cold by this bill." [Emphasis added]
I want to reiterate that there are NO alternative testing methods known to the CPSC that would assure compliance. NONE, ZIPPO, NADA. It's a scam that the Dems persist in propogating. The issue about legal challenge is yet another huge worry for those businesses dependent on REAL relief.
It is a relief to know SOMEONE is concerned to make sure you and I aren't left out in the cold. I think this bold political stance is downright heroic. Having fought basically full-time for 18 months, I have become accustomed to the cold shoulder from Democrats, as though I was some kind of criminal or some other kind of societal scum. Actually, I make educational products with a remarkable record of safety and compliance with law. The support from Barton and the Republicans is literally a godsend.
The Republican list of "asks" is not perfect, but it is practical and has good potential to help. It's not the optimal list, which they acknowledge, but it is a starting point for fixing a terrible law. The list is below for your review.
The Republicans deserve your support. They have also earned my thanks. With people like Joe Barton in the mix, there still is hope of real relief . . . someday. Henry Waxman, where are you?
"· Insert legislative language permitting the CPSC to grant exceptions for entire product categories. Current language permits exception for “a specific product or material” but does not permit the exclusion of an entire category (e.g., science equipment for schools, bikes, motorized recreation vehicles, or brass musical instruments).
· Direct the CPSC to act sua sponte to exclude categories of products based on least risk. E.g., leather saddles, golf clubs, microscopes or other science equipment, children’s ball point pens, musical instruments, etc. Timeline should be no later than the end of FY 2010 due to the February 2011 expiration of the stay on testing and certification. CPSC must also issue a notice of those products it will initially review for such exception.
· If the CPSC reviews a specific product petition and chooses to grant the petition, require the CPSC to grant a product category-wide exclusion unless significant safety concerns exist.
· Remove the ability to provide an expiration date on exclusions. If a product is proven to have no measurable adverse impact, it should be permitted for sale. Manufacturers require certainty for both the initial investment in a petition (estimates range from $25,000 to $50,000 per).
· Permit any “alternative testing” schemes blessed by CPSC to be used by any business. Alternatively, increase the size of businesses defined as “small batch manufacturers” under the bill.
· New standards added to the F-963 toy standard should, as a default, not be subject to [Third Party Testing]. The CPSC should have the discretionary authority to mandate either [Third Party Testing] or alternative testing methods, however.
· Eliminate the first two prongs of the exclusion standard. If an item is proven to have no measurable adverse impact (third prong), it will not matter if the item is designed to be/can be put in a child’s mouth (second prong), or if the item requires lead for a functional purpose (first prong)."
Saturday, April 24, 2010
CPSIA - Good News! Little Mattel Gets Much NEEDED Relief.
Wipe away those tears and cancel the bake sale, little Mattel (last quarter's revenue: $880 million) received more relief from the CPSC. Suffering under the burden of only seven certified in-house labs to do its safety testing, Mattel this week received CPSC approval for two more firewalled internal labs to do its testing at a fraction of the cost of using pesky independent labs. The newly-approved labs, one more in China and one in Thailand, promise to make things much easier for Mattel. Imagine the crippling overhead they might incur sending samples from one factory to another if they didn't have these new approved labs. Read all about the celebrations over the CPSC's well-timed beneficence!
Mattel, the generous sponsor of a record $2.3 million CPSC honorarium (that's what we call fines now), lobbied for the provision in the law giving it the right to opt out of independent laboratory safety testing during the drafting of the CPSIA. As Mattel is such a sympathetic supplicant, having recalled more than 20 million toys in 2007 alone, Congress was all ears and gave them what they wanted. [Search this link for "Mattel" and "Fisher-Price" and you will find 19 recalls between November 2006 and today, totalling more than 16.5 million units in the U.S. plus many millions more outside the U.S.]
This is the signal the children's market was waiting for: a forgive-and-forget approach by the CPSC. As a small business operator, I sure am glad to know that the CPSC is big-hearted enough to overlook a long track record of serious legal violations. Shame they hadn't adopted this generous spirit when Daiso pissed them off.
Oh, did I forget to mention that Mattel ALSO funded another $1.1 million CPSC honorarium (fine) for failing to report 116 FIRES caused by one of its products? According to Ann Brown, then Chairman of the CPSC, Mattel knew about these fires for "years" before reporting them. Oopsie! [Check out the WSJ article on Mattel's little problem with safety disclosures. I am sure you will cherish the pictures of the burned-out garage.] Don't worry, the CPSC has decided everything's in order for Mattel to handle safety all by itself. Sleep well, America.
This makes a lot of sense to me.
And for the rest of us who can't afford to set up or manage our own "firewalled" laboratories? We can enjoy the bounty of the small batch manufacturer's relief in the Waxman Amendment, or just hire outside labs. You know, like Mattel doesn't want to do . . . hey, what's going on here?!
At least we know Mr. Waxman cares about somebody.
Mattel, the generous sponsor of a record $2.3 million CPSC honorarium (that's what we call fines now), lobbied for the provision in the law giving it the right to opt out of independent laboratory safety testing during the drafting of the CPSIA. As Mattel is such a sympathetic supplicant, having recalled more than 20 million toys in 2007 alone, Congress was all ears and gave them what they wanted. [Search this link for "Mattel" and "Fisher-Price" and you will find 19 recalls between November 2006 and today, totalling more than 16.5 million units in the U.S. plus many millions more outside the U.S.]
This is the signal the children's market was waiting for: a forgive-and-forget approach by the CPSC. As a small business operator, I sure am glad to know that the CPSC is big-hearted enough to overlook a long track record of serious legal violations. Shame they hadn't adopted this generous spirit when Daiso pissed them off.
Oh, did I forget to mention that Mattel ALSO funded another $1.1 million CPSC honorarium (fine) for failing to report 116 FIRES caused by one of its products? According to Ann Brown, then Chairman of the CPSC, Mattel knew about these fires for "years" before reporting them. Oopsie! [Check out the WSJ article on Mattel's little problem with safety disclosures. I am sure you will cherish the pictures of the burned-out garage.] Don't worry, the CPSC has decided everything's in order for Mattel to handle safety all by itself. Sleep well, America.
This makes a lot of sense to me.
And for the rest of us who can't afford to set up or manage our own "firewalled" laboratories? We can enjoy the bounty of the small batch manufacturer's relief in the Waxman Amendment, or just hire outside labs. You know, like Mattel doesn't want to do . . . hey, what's going on here?!
At least we know Mr. Waxman cares about somebody.
Sunday, April 18, 2010
CPSIA - Why the Waxman Amendment MUST BE REJECTED
As we face the dilemma of what to do about the Waxman Amendment 2.0, I want to point out recent quotes by Sam Zell, a Chicago-based real estate entrepreneur. At a recent panel discussion of the Urban Land Institute, Mr. Zell bemoaned how our federal government governs these days: "[What's] going on now is frightening . . . Up until this administration, you knew the rules and had a very stable environment . . . If the current situation is indicative of the next half century, I think we're screwed."
Screwed. Mr. Zell's words ring in my ears.
In the wake of Friday's contentious meeting with the Waxmanis on Capitol Hill, the Dems announced that a new draft of the Waxman Amendment 2.0 would be released on Monday. In their usual bullying style, Waxman staff issued yet another ultimatum, advising this time that after release of that next draft, we all must "decide" whether or not to support the amendment. If we won't support it, they say they have better things to do.
The meeting produced no breakthroughs. The fundamental flaws in the law remain unaddressed, and meager goodies meant to partially salve the wounds of a limited number of companies remain the focus of the legislation. The goal of this legislation is to split the group protesting this law, peeling off the ATV'rs, the book industry, the crafters and mass market retailers. None of these groups is a clear winner, either. The rest of us, namely the Small Business community, will be left as roadkill.
A request by the ranking Republican for hearings was rejected on the grounds that there has been too much "jawboning" already. We are apparently all Chatty Cathies. Shame on us.
This reasoning behind the limited intent of the legislation was on display at this week's Senate Appropriations Committee hearing attended by Illinois' own Senator Dick Durbin and Maine's Senator Susan Collins with only one witness, CPSC Chairman Inez Tenenbaum. Don't watch the hearing on a full stomach . . . . Among other things confirmed by this hearing was that the functional purpose exemption embedded in Waxman Amendment is supposed to benefit a "narrow class" of products (in the words of Ms. Tenenbaum), namely bikes, ATVs and books. Lucky them.
Sadly, the hearing also confirmed the bizarre impression held by members of Congress that the small business issues are limited to crafters, for some reason a particular source of angst. Our company happens to also be a small business, although we no longer operate out of a bedroom or a garage - and we face major issues caused by this law. While I share concern for the tiniest of enterprises, the economic problems don't end there. In the words of the Chicago City Treasurer Stephanie Neely: "We are truly an economy of small businesses. And it's important that they thrive. They do a lot of employing. . . on a day-to-day basis, these are people who are employing one, ten, thirty people, and and it's important that we help them." Oh yeah, jobs.
The Waxman Amendment should be REJECTED until comprehensive legislation to fix the law is brought to the floor. If we let them pass this law, organized resistance to this law will be greatly diminished, and any opportunity to restore a sensible rule of law may be lost . . . permanently.
Consider the consequences if this amendment is passed:
- Our national safety law has changed from risk-based to standards-based. Mindlessly focused on lines in the sand, the new law's definition of safety has been completely rubbed out. Without this compass, the world of safety has become an unpredictable, unstable random walk. The Senate hearing included (incredibly) a rehashing of the "dangers" posed by Zhu Zhu Pets, the need for BPA recalls, the potential risk posed by triclosan and the CPSC's ability and interest in initiating recalls for these "dangers". Given that we no longer can figure out what's safe and what's not, every possible threat brings up discussion of recalls.
Try to run a business under conditions like that.
The risk of this reactive form of government CANNOT BE OVERSTATED. On April 13, Representative Edward Markey proudly sent out letters to 13 companies demanding that they stop using the antibacterial compound triclosan. The list of targets was almost certainly supplied to him by consumer groups. Mr. Markey, for all his power, is not a regulatory agency and does not have authority, resources or expertise to act as a regulator and his consumer group buddies are also not empowered to regulate our markets (thankfully). He is only a Congressman (up for reelection in November, btw). However, nowadays, that's apparently enough to regulate. I would not want to receive such a letter. I also do not cotton to this style of government.
- The complexity and volume of safety law being spewed out is truly breathtaking and overwhelming. I literally cannot keep up anymore. i can't read it all, watch it all, digest it all or even write comment letters. [Unfortunately, I still have job responsibilities, too.] On a recent Friday, the CPSC expelled almost 600 pages of new rules - and they were IMPORTANT. They included the new so-called 15 Month Rule - have you read it yet? This 100+ page rule has been written to control children's products as though we were merchants of death. We are not. The April 15 hearing to review this regulatory morsel was a mere five hours long, so lengthy that the CPSC has only posted one hour of the fun so far. Ironically, this hearing wasn't broadcast live, as it conflicted with broadcast of the first meeting of phthalates CHAP. Can't broadcast two mega-hearings at once.
Do you get it yet?
By my reckoning, the rules applicable to generic children's products is now nearing 2500 pages. If you take into account childcare items and other ancillary matters, the number of pages is probably well in excess of 3000 pages. We are clearly heading to a place where the rules total many thousands of pages. And WHY are there so many rules? It has nothing to do with actual safety. The injuries (one) and deaths (one) from lead in 2007/8, the highest outbreak of recalls in our history, were simply nominal for a country 300 million people.
In any event, you are going to have to know and bear the risk of ALL of those rules. And the new rules keep coming, very often overruling the rules you already mastered. For those you who are tempted to support Mr. Waxman's Amendment, please THINK about this.
- When the CPSC is done with its rulemaking, it is going into enforcement mode. That was a clear message of Ms. Tenenbaum's testimony in front of the Senate Appropriations Committee.
Her Compliance initiative will feature another 41 employees at a cost of $4,7 million to catch you violating rules. In addition, the resources of the existing agency will also shift to catching you. If you have read any of my writings about penalties, perhaps you can figure out what that means.
Bottom line, having divorced their mission from common sense or any notion of risk, the CPSC built an ornate and truly incomprehensible set of safety rules that even mega-corporations have admitted exceeds their capacity to manage. For small businesses, not merely the home crafters, compliance will be simply impossible. If those businesses are unable to understand the rules or afford to comply (while staying in business), they won't be able to follow them, and if the agency is bent on catching them, well, the results will be grim.
If you can't see this coming - my friend, you are blind.
The Testing and Certification stay ends on February 10, 2010. Don't expect this Commission to extend it again. The meter is running.
IF you support the Waxman Amendment because you really want the meager relief they are dangling, you will be conceding that you are prepared to endure what I have described. You are not ready for that, and you know it. Support for revising the bill comprehensibly will be greatly diminished at the same time, and even our most steadfast supporters in Congress will give up on us.
As painful as it may seem, you MUST decline to support this legislation. We must, as a community, insist on a true fix, one that addresses the real problems caused by the CPSIA. Nothing short of a total fix will suffice. The ornate rules needs to be simplified and refocused on real issues. The needless self-destructive imposition of blinding costs needs to be reversed. Excessive bureaucratic processes and exemptions only for big industries and big companies must end.
NOTHING that I am suggesting will or should amount to a retrenchment in safety for children or anyone else. It is no "free pass" for industry, whatever that might mean. It is simply means a return to sanity.
That may be too much to ask for this Congress or this Commission. I am not optimistic. Make me a believer this week - REJECT THE WAXMAN AMENDMENT.
Screwed. Mr. Zell's words ring in my ears.
In the wake of Friday's contentious meeting with the Waxmanis on Capitol Hill, the Dems announced that a new draft of the Waxman Amendment 2.0 would be released on Monday. In their usual bullying style, Waxman staff issued yet another ultimatum, advising this time that after release of that next draft, we all must "decide" whether or not to support the amendment. If we won't support it, they say they have better things to do.
The meeting produced no breakthroughs. The fundamental flaws in the law remain unaddressed, and meager goodies meant to partially salve the wounds of a limited number of companies remain the focus of the legislation. The goal of this legislation is to split the group protesting this law, peeling off the ATV'rs, the book industry, the crafters and mass market retailers. None of these groups is a clear winner, either. The rest of us, namely the Small Business community, will be left as roadkill.
A request by the ranking Republican for hearings was rejected on the grounds that there has been too much "jawboning" already. We are apparently all Chatty Cathies. Shame on us.
This reasoning behind the limited intent of the legislation was on display at this week's Senate Appropriations Committee hearing attended by Illinois' own Senator Dick Durbin and Maine's Senator Susan Collins with only one witness, CPSC Chairman Inez Tenenbaum. Don't watch the hearing on a full stomach . . . . Among other things confirmed by this hearing was that the functional purpose exemption embedded in Waxman Amendment is supposed to benefit a "narrow class" of products (in the words of Ms. Tenenbaum), namely bikes, ATVs and books. Lucky them.
Sadly, the hearing also confirmed the bizarre impression held by members of Congress that the small business issues are limited to crafters, for some reason a particular source of angst. Our company happens to also be a small business, although we no longer operate out of a bedroom or a garage - and we face major issues caused by this law. While I share concern for the tiniest of enterprises, the economic problems don't end there. In the words of the Chicago City Treasurer Stephanie Neely: "We are truly an economy of small businesses. And it's important that they thrive. They do a lot of employing. . . on a day-to-day basis, these are people who are employing one, ten, thirty people, and and it's important that we help them." Oh yeah, jobs.
The Waxman Amendment should be REJECTED until comprehensive legislation to fix the law is brought to the floor. If we let them pass this law, organized resistance to this law will be greatly diminished, and any opportunity to restore a sensible rule of law may be lost . . . permanently.
Consider the consequences if this amendment is passed:
- Our national safety law has changed from risk-based to standards-based. Mindlessly focused on lines in the sand, the new law's definition of safety has been completely rubbed out. Without this compass, the world of safety has become an unpredictable, unstable random walk. The Senate hearing included (incredibly) a rehashing of the "dangers" posed by Zhu Zhu Pets, the need for BPA recalls, the potential risk posed by triclosan and the CPSC's ability and interest in initiating recalls for these "dangers". Given that we no longer can figure out what's safe and what's not, every possible threat brings up discussion of recalls.
Try to run a business under conditions like that.
The risk of this reactive form of government CANNOT BE OVERSTATED. On April 13, Representative Edward Markey proudly sent out letters to 13 companies demanding that they stop using the antibacterial compound triclosan. The list of targets was almost certainly supplied to him by consumer groups. Mr. Markey, for all his power, is not a regulatory agency and does not have authority, resources or expertise to act as a regulator and his consumer group buddies are also not empowered to regulate our markets (thankfully). He is only a Congressman (up for reelection in November, btw). However, nowadays, that's apparently enough to regulate. I would not want to receive such a letter. I also do not cotton to this style of government.
- The complexity and volume of safety law being spewed out is truly breathtaking and overwhelming. I literally cannot keep up anymore. i can't read it all, watch it all, digest it all or even write comment letters. [Unfortunately, I still have job responsibilities, too.] On a recent Friday, the CPSC expelled almost 600 pages of new rules - and they were IMPORTANT. They included the new so-called 15 Month Rule - have you read it yet? This 100+ page rule has been written to control children's products as though we were merchants of death. We are not. The April 15 hearing to review this regulatory morsel was a mere five hours long, so lengthy that the CPSC has only posted one hour of the fun so far. Ironically, this hearing wasn't broadcast live, as it conflicted with broadcast of the first meeting of phthalates CHAP. Can't broadcast two mega-hearings at once.
Do you get it yet?
By my reckoning, the rules applicable to generic children's products is now nearing 2500 pages. If you take into account childcare items and other ancillary matters, the number of pages is probably well in excess of 3000 pages. We are clearly heading to a place where the rules total many thousands of pages. And WHY are there so many rules? It has nothing to do with actual safety. The injuries (one) and deaths (one) from lead in 2007/8, the highest outbreak of recalls in our history, were simply nominal for a country 300 million people.
In any event, you are going to have to know and bear the risk of ALL of those rules. And the new rules keep coming, very often overruling the rules you already mastered. For those you who are tempted to support Mr. Waxman's Amendment, please THINK about this.
- When the CPSC is done with its rulemaking, it is going into enforcement mode. That was a clear message of Ms. Tenenbaum's testimony in front of the Senate Appropriations Committee.
Her Compliance initiative will feature another 41 employees at a cost of $4,7 million to catch you violating rules. In addition, the resources of the existing agency will also shift to catching you. If you have read any of my writings about penalties, perhaps you can figure out what that means.
Bottom line, having divorced their mission from common sense or any notion of risk, the CPSC built an ornate and truly incomprehensible set of safety rules that even mega-corporations have admitted exceeds their capacity to manage. For small businesses, not merely the home crafters, compliance will be simply impossible. If those businesses are unable to understand the rules or afford to comply (while staying in business), they won't be able to follow them, and if the agency is bent on catching them, well, the results will be grim.
If you can't see this coming - my friend, you are blind.
The Testing and Certification stay ends on February 10, 2010. Don't expect this Commission to extend it again. The meter is running.
IF you support the Waxman Amendment because you really want the meager relief they are dangling, you will be conceding that you are prepared to endure what I have described. You are not ready for that, and you know it. Support for revising the bill comprehensibly will be greatly diminished at the same time, and even our most steadfast supporters in Congress will give up on us.
As painful as it may seem, you MUST decline to support this legislation. We must, as a community, insist on a true fix, one that addresses the real problems caused by the CPSIA. Nothing short of a total fix will suffice. The ornate rules needs to be simplified and refocused on real issues. The needless self-destructive imposition of blinding costs needs to be reversed. Excessive bureaucratic processes and exemptions only for big industries and big companies must end.
NOTHING that I am suggesting will or should amount to a retrenchment in safety for children or anyone else. It is no "free pass" for industry, whatever that might mean. It is simply means a return to sanity.
That may be too much to ask for this Congress or this Commission. I am not optimistic. Make me a believer this week - REJECT THE WAXMAN AMENDMENT.
Thursday, April 15, 2010
CPSIA - A Quick and Incomplete Analysis of New Draft Waxman Amendment 2.0
With only a few hours to look over the new draft of the Waxman Amendment 2.0 before tomorrow's meeting, I guess the idea is that we are supposed to drop what we are doing to complete an analysis fire drill. Power trip for the Waxman staffers? Possibly. Still, what choice do we have? I thought I would outline my preliminary comments to contribute to the debate.
It goes without saying that this is entirely my own work without the benefit of discussing it with others similarly situated and without the opportunity to compare notes. It is therefore likely that I have missed something important or made other mistakes. Sorry . . . . This post is also painfully long. Again, given that Mr. Waxman hardly cares about your problems or mine, I have little choice but to post this as one essay. Again, sorry . . . .
a. Modifications to Section 101(b)(2) Exemption Process:
- The idiotic post-exemption warnings provision has been deleted.
- The three-pronged exemption test remains in place, as does the ambiguous and troubling term "practicable". "Practicable" is a sneaky Waxman approach to providing an escape hatch for big industries with narrow product definitions like ATVs and books. You're not supposed to know this. Our laws aren't for the little people anymore.
- The third prong of the exemption test has been clarified from no effect on "public health or safety" to no effect on "the user’s health or safety, taking into account normal and foreseeable use and abuse by all foreseeable users." This change seems like new belts and suspenders to make it easy to deny an exemption. The Dem zealots want to be sure no one gets an exemption but ATVs and books, wink-wink-nudge-nudge.
- Poor applicants for exemptions are still obliged to wait hungrily by the door of the CPSC for the leavings of rich supplicants. Yes, small business owners who want exemptions like the big guys but can't afford to pay the big bucks can reuse the big guys' consultant's reports provided the evidence is considered non-proprietary. [Whatever that might be.] Nice . . . if someone else has already paid for it and submitted it in an exemption process, and if you have access to it (and have found it), you can use it. Noblesse oblige, I guess. Thank You, Kind Sir. I speak for all the little people . . . . Oddly, this concept reappears in a confusing provision called "Previously Denied Petitions" that only refers to previously denied petitions in its title (I don't get it).
- In another "how closely are you watching me?" change, the grounds for decision provision now permits the Commission to consider "only" evidence presented by "interested parties", rather than the evidence presented by the party seeking such exceptions. So if you ever get as far as an exemption hearing, this provision turns it into a town meeting. How would you like it if anyone could enter and participate in your litigation without your consent . . . like your competitors or your business enemies? I have a good idea - why not just write into the law that Rachel Weintraub will be considered a party in interest to every action at the CPSC?
- The Narrowest Scope provision has been modified to clarify that you must not only address each component but also each material. The paranoia you sense in this legislation is just the precautionary principle at work. The staffer-gnomes who have been crafting this legislation are not thinking about how our markets work or should work - they are simply obsessing over how we business people might find loopholes. Of course, it is in the nature of business people to try to avoid laws, we are all so evil. Oh yeah, I forgot . . . .
- The Limitation of Exception provision now is framed in terms of "all foreseeable users" which I can only assume is meant to make the burden of proof higher for supplicants. After all, if you can foresee a so-and-so using the product (I won't supply the colorful example), then the Commission must limit the exception. No possibility of risk can be tolerated by the precautionary principle folks.
As the provision for exclusions has not changed much, here is my analysis of the original language for your reference.
b. Treatment of Resale Shops by the Waxman Amendment:
- The provision defining a "used children's product" seems to now mean (a) an actual used children's product, and (b) new goods donated for a charitable purpose. This would seem to protect resale shops from liability for sale of items violating the lead provisions (but not the phthalates ban, notably) unless the seller or the person who supplied it to the seller knew it was in violation of the lead provisions. If that seems somewhat circular, it is. In this case, the law as drafted encourages resale shops to remain as ignorant as possible. This is Waxman's "Don't Ask, Don't Tell" policy. Nice.
- There has been no clarification about the application of this provision to consignment shops. Do they "obtain" goods for resale if they never take title? Something fun to speculate about!
- In a little-noticed provision, the definition of "seller" includes lenders or donators of used children's products. Thus, for lending libraries, they will be in the clear if they lend used goods, but will be on the hook if they lend new product. Does it become "used" after one loan, and if so, what does this mean? The legal department in your local children's library will figure this out. Sure. As to people who donate, the provision is circular again. As best I can figure out, you are not subject to the lead rules (only) if you are donating something used for charitable purposes, but if you give away something new, you are on the hook. At least, that's how I read it. So the bottom line is - don't give anything new to a charity, just give them junk. This is what Mr. Waxman wants. And that means this is what Congress wants.
While these changes may be an improvement, they are sadly improvements without much impact. This provision remains convoluted and hard to understand. The definition has numerous exceptions and also avoids giving the same shelter to resale shops for all the other picayune provisions of the law, like the phthalates ban. Frankly, without a clean exemption for this industry, resale stores are all going to avoid this class of goods. The complexity alone will kill this exemption except for the most sophisticated participants in an industry not known for its legal skills or resources. These stores won't hire lawyers to check their work. They can't afford it.
This is my original criticism of this provision, which is still applicable.
c. Prospective Application of 100 ppm Lead Limits - this provision was not changed in the new draft.
d. Low Volume Manufacturer "Exceptions":
- Thank heavens, they changed the term of art for these small fry to Small Batch Manufacturers. This was done at the insistence of the HTA. What a victory! Someone please explain this to me.
- The "In General" provision is basically unchanged, other than the fancy new name for the supposed beneficiaries of this largess. Notably, the last sentence was clarified to make sure no one could contend that Waxman inadvertently gave the Commission the power to grant "alternative testing methodologies" for ANYONE but the small batch guys. There's so much trust and love flowing here . . . .
- The truly non-existent "relief" of this provision remains EXACTLY the same. Here it is, bask in its wonderfulness: "The Commission . . . may, by regulation, provide alternative testing requirements for covered products manufactured by small batch manufacturers in lieu of those required under subsection (a) or (b). Any such alternative requirements shall provide for reasonable testing methodologies to assure certification based on compliance with the relevant consumer product safety standards." [Emphasis added] Standing ovation? These lucky micro-businesses must meet alternative TESTING methodologies that ASSURE compliance with the standards. In other words, they gotta test. They even added a "savings clause" to forbid any relief here (such as it is) if any foreseeable user might be foreseeably at risk. Some relief.
Notably, the reach of this section has now been limited to "covered products". This new term, which incorporates a three-prong test (this is the second three-pronger of this amendment so far, but not the last). [See below.] Please NOTE that this new term means that the ONLY relief the CPSC can grant is to these small fry products. A product that exceeds the limits of a "covered product" will NOT enjoy any theoretical testing relief, even if made by a business qualifying for relief overall. Should you care? Well, in my view, if you have to endure the burden of full compliance with one product, you have to build the full infrastructure and bear the related liabilities. Thus, these micro-businesses supposedly being saved here are actually at substantial risk of suffocation if even ONE product sells well. Too bad for them.
The absurd and utterly inappropriate definition of a "low volume manufacturer" has been completely jumbled and incorporates the new concept of "covered products", too. Let me try to sort out this for you.
- As noted above, only "covered product" enjoy any potential relief under this section. The "covered products" test is a three-prong test: (i) manufactured not more than 5,000 "units" of the product in the prior fiscal year, (ii) had not more than $30,000 in sales of the product in the prior fiscal year, AND (iii) had no more than $500,000 in total sales in the prior fiscal year. [Do you feel vines growing over your brain yet?] Dollars are indexed for inflation. Notably, the definition ONLY applies to the manufacture of these items, NOT importation. Too bad, importers. GOTCHA!
The implication of this definition is that if you grow to over $500,000 in total sales, all exemptions applicable to any of your low volume items goes up in smoke instantly. That last dollar is gonna HURT. You also cannot get relief for any individual product if your sales of THAT item are greater than 5,000 "units" per year or $30,000 in sales. Here's another compliance tip: don't grow your business! Too hard? Don't worry, the other policies of this government should help you meet this goal . . . .
- The definition of a "small batch manufacturer" defines who should be treated with special charity by the CPSC under this marvelous section of the amendment. It's not going be a long list. Who wants to see another three-prong test?! Okay, break out your calculator so you can figure out if they are referring to you: (a) AT LEAST TWO-THIRDS of "the manufacturer's products" (I love that term) meets this two-part test: (i) the manufacturer manufactured or imported not more than 5,000 units of the product in the prior CALENDAR year, AND (ii) the manufacturer had not more than $30,000 in sales of the product in the prior CALENDAR year, AND (b) the manufacturer had not more than $500,000 in sales in the prior CALENDAR year.
This is getting fun! Okay, first we need to decide - is it a two-prong test with one prong having two sub-prongs, or is it a three-prong test? This is a rather metaphysical question . . . but I say it's our third three-prong test of this short amendment. [Imagine how many three-prong tests are in the health care bill.] I welcome your insights on this question.
There are some interesting quirks in the Small Batch Manufacturer definition. First, this provision applies to imported products, but the "covered products" definition does not. Gotcha! What does this mean? Who knows. The head spins . . . . Even better, the definition of "Small Batch Manufacturer" is based on calendar year calculations and the definition of "covered products" is based on fiscal year calculations. Love it. I learn so much from Mr. Congress. Apparently, Congress wants it to work this way because there must be some sort of dangerous loophole for people who have fiscal years which are not the calendar year. Mr. Waxman is onto your game, you desperadoes! There's no escape!
At least the Waxmanis kept it simple. Good job, guys, it's artful!
Btw, they added a little provision to make sure that the Commission investigates the structure of your business' "affiliations". Clearly, the Commission needs to make SURE they correctly tote up your revenues for this ornate determination. [Little known fact: the CPSC uses clacker balls for this work.] The reach of the Obamist/Waxman government into your private affairs, in ways completely and utterly unrelated to public interest or safety, apparently knows no bounds. Get your files ready, little businesses - the CPSC wants to take a peek. Perhaps check out your tax returns and . . . oops, it appears you took a few deductions that you weren't entitled to. We can just let our sister agency know, you don't have to do ANYTHING, we're just here to help.
Small business people, you should be flipping mad over this pathetic attempt to "help" you. My original criticism of this provision is still largely applicable.
e. Phthalates Ban Exception for Internal Components: This is largely intact from the prior draft although they did add a provision modifying the Commission's right to adopt the definition of an internal component from the lead accessibility standard. The Commission must now, "as appropriate", consider whether the component can be placed in the mouth. We are talking about internal components here.
I wish I had a laugh track for my blog . . . .
f. Removal of CPSA Section 6(b) Due Process Rights of Manufacturers: has been eliminated from the draft.
g. Voluntary Recall Standards to be Matched to Mandatory Recalls: has been eliminated from this draft.
h. Imminent Hazard Panic Attacks by the Commission: has been eliminated from this draft.
i. Subpoena Power for Underlings at the CPSC: This provision was trimmed back partially to apply only to physical and documentary evidence. This modest restructuring of this new right does not in any way address the issues I have pointed out in the past (here and here). This new subpoena power is not essential to the operation of the CPSC, regardless of their assertions, and represents a significant degradation of procedural protections that encourage business people to invest. When all trust is destroyed among the regulated community and its safety regulator, who will want to invest? Hello, Congress?
CONCLUSIONS:
The Waxman Amendment has been improved mainly by deletions of several truly awful and duplicitous provisions. Many defective provisions in the original draft survived the revisions. What's left provides little substantive relief to the unwashed masses, but promises some sub rosa relief to the book industry and ATV'rs without giving the appearance of favoritism. There is little to cheer here for resale shops, small businesses (even micro-businesses, hello HTA, are you there?), education companies, apparel companies, you-name-it.
And many important issues are left completely unaddressed. I have previously provided my most discrete list of CRITICAL missing elements that must be part of any meaningful amendment of the CPSIA:
- Risk Assessment by the CPSC and/or the Commission.
- Changes in age limits for the lead standards and phthalates ban.
- Narrowing of the scope of "Children's Product" to eliminate many categories of products unthinkingly pulled into this law by its overly broad language.
- True reform to protect small businesses.
- Tracking labels relief.
My full list of needed changes is found here.
More fun to follow tomorrow, I am sure.
Sunday, April 11, 2010
CPSIA - What does "Any" Mean, Anyhow? Waxman Staff Weighs in.
The Waxman Amendment 2.0 is still percolating but with Congress on its Spring break, progress has stopped briefly. That does not mean, however, that discussions have ended or that the Amendment is "dead". It will likely spring back to life shortly as Congress wakes up again next week.
Those of you who savor fractiousness and gridlock in your government will no doubt be pleased to know that the usual bickering and stubborn disputes over the awful CPSIA continues unabated.
In a meeting last week about the Waxman Amendment, senior Waxman staff again rejected the concept of allowing the CPSC to assess risk. [Given the extraordinary conservatism of this CPSC Commission, I can't imagine what Waxman is worried about . . . .]
The position of the Waxmanis has significant implications for the controversy over the word "any" in the lead exemption provision. Some commentators have argued that "any" does not mean none and that if "any" is accorded that meaning, then the exemption process would never yield any exemptions. [CPSC staff have reached similar conclusions, hence their universal rejection of exemption requests. This also explains their puzzling approval of nuclear waste for inclusion in children's products.] Resolution of this issue might not only crack the door for exemptions but might also help narrow the scope of CPSC responsibilities by eliminating obviously safe products from the lead rules. This would be good, to restate the obvious.
According to Waxman staff, the CPSC got it exactly right - the word "any" is meant to prevent exemptions if ANY lead could pass from the subject item into the human body. No matter that this means that there will never be any exemptions possible under the exemption process (!). No matter that there are many other environmental sources of lead which pose a far greater hazard in a child's life than almost all children's products. No matter that many useful products might be banned (see my latest casualty post). In the Waxmanis' estimable view, Congress "wanted" ZERO lead in the communal toy box. Otherwise, there might be a "perverse" effect on safety. Or so they say.
This is exceptionally unlikely to be true. Interviews with MANY members of Congress over the past two years confirms that "Congress" believed that the CPSIA included a real and workable mechanism for sensible exemptions. Not that anyone thought about the details of this bill for more than a few micro-seconds, but if they did, they thought there was a viable exemption process. Actually, it takes virtually no effort these days to find members of Congress who assert that the CPSIA was a toy bill. Gotta keep 'em guessing, I suppose.
It must be nice to be able to project your own views onto an entire institution. This is a good way to defect blame. What did Congress "want"? No one can know what that amorphous institution wanted or wants. At this point, the Waxmanis are self-appointed interpreters of the Congressional psyche. In reality, it only matters what "House baron Henry Waxman" wants. In this case, an impotent exemption process is exactly what he wants. The sham also provides him with cover against more skeptical members of Congress. That you can see through it hardly matters - do you actually expect members of Congress to read the law and figure out how it works? Come on!
That's participatory government for you. Unfortunately, you only think you are participating. Mr. Waxman will let you know when he needs your input. . . .
Those of you who savor fractiousness and gridlock in your government will no doubt be pleased to know that the usual bickering and stubborn disputes over the awful CPSIA continues unabated.
In a meeting last week about the Waxman Amendment, senior Waxman staff again rejected the concept of allowing the CPSC to assess risk. [Given the extraordinary conservatism of this CPSC Commission, I can't imagine what Waxman is worried about . . . .]
The position of the Waxmanis has significant implications for the controversy over the word "any" in the lead exemption provision. Some commentators have argued that "any" does not mean none and that if "any" is accorded that meaning, then the exemption process would never yield any exemptions. [CPSC staff have reached similar conclusions, hence their universal rejection of exemption requests. This also explains their puzzling approval of nuclear waste for inclusion in children's products.] Resolution of this issue might not only crack the door for exemptions but might also help narrow the scope of CPSC responsibilities by eliminating obviously safe products from the lead rules. This would be good, to restate the obvious.
According to Waxman staff, the CPSC got it exactly right - the word "any" is meant to prevent exemptions if ANY lead could pass from the subject item into the human body. No matter that this means that there will never be any exemptions possible under the exemption process (!). No matter that there are many other environmental sources of lead which pose a far greater hazard in a child's life than almost all children's products. No matter that many useful products might be banned (see my latest casualty post). In the Waxmanis' estimable view, Congress "wanted" ZERO lead in the communal toy box. Otherwise, there might be a "perverse" effect on safety. Or so they say.
This is exceptionally unlikely to be true. Interviews with MANY members of Congress over the past two years confirms that "Congress" believed that the CPSIA included a real and workable mechanism for sensible exemptions. Not that anyone thought about the details of this bill for more than a few micro-seconds, but if they did, they thought there was a viable exemption process. Actually, it takes virtually no effort these days to find members of Congress who assert that the CPSIA was a toy bill. Gotta keep 'em guessing, I suppose.
It must be nice to be able to project your own views onto an entire institution. This is a good way to defect blame. What did Congress "want"? No one can know what that amorphous institution wanted or wants. At this point, the Waxmanis are self-appointed interpreters of the Congressional psyche. In reality, it only matters what "House baron Henry Waxman" wants. In this case, an impotent exemption process is exactly what he wants. The sham also provides him with cover against more skeptical members of Congress. That you can see through it hardly matters - do you actually expect members of Congress to read the law and figure out how it works? Come on!
That's participatory government for you. Unfortunately, you only think you are participating. Mr. Waxman will let you know when he needs your input. . . .
Thursday, February 18, 2010
CPSIA - Waxman's New Amendment Progress Report
In the last couple weeks, Rep. Henry Waxman's staff on the House Committee on Energy and Commerce has been approaching Republicans and various stakeholders for feedback for a "bipartisan" approach to fixing the CPSIA. In these discussions, the staff has acknowledged that the law is "flawed" and requires surgery, not just tweaks. An interim (artificial) deadline of this week has been established for comments on their planned amendment. A draft of this amendment has not seen the light of day yet. No one knows what it will say.
While this may sound "good", the Waxman staffers have also attempted to constrain the development of the amendment. For starters, they insist that the amendment be based on the failed Waxman amendment of last December. [Last year's try was covered in several posts in my blog from December 11-16.] They have also drawn quite a few lines in the sand, such as no change to age limits in Children's Products. They favor exemptions for individual product categories or even individual products, a Swiss Cheese approach. [I hate this approach, as does just about everyone else other than the Waxmanites.]
The Waxmanites seem interested in helping out the ATV'rs. Apparently, the legislative logic is that if the amendment caters to the ATV'rs, who have been quite noisy and enjoy wide support among members of Congress, no one will be able to vote against the amendment for political reasons. Thus, the makings of a Democrat victory and the appearance of bipartisanship. I can see it now: "The two parties worked together and fixed the parts of the law that caused unintended consequences. All is well!"
Among the "have-nots" in this approach:
While this may sound "good", the Waxman staffers have also attempted to constrain the development of the amendment. For starters, they insist that the amendment be based on the failed Waxman amendment of last December. [Last year's try was covered in several posts in my blog from December 11-16.] They have also drawn quite a few lines in the sand, such as no change to age limits in Children's Products. They favor exemptions for individual product categories or even individual products, a Swiss Cheese approach. [I hate this approach, as does just about everyone else other than the Waxmanites.]
The Waxmanites seem interested in helping out the ATV'rs. Apparently, the legislative logic is that if the amendment caters to the ATV'rs, who have been quite noisy and enjoy wide support among members of Congress, no one will be able to vote against the amendment for political reasons. Thus, the makings of a Democrat victory and the appearance of bipartisanship. I can see it now: "The two parties worked together and fixed the parts of the law that caused unintended consequences. All is well!"
Among the "have-nots" in this approach:
- "Common Sense". This case-by-case or product-by-product approach means that the Waxmanites refuse to even consider trusting the CPSC to do its job and assess risk for itself. The only people the Waxmanites and consumer groups can trust are . . . are . . . themselves. You won't be able to draw a line between those that are "in" and those that are "out" in any rational way.
- Rhinestones. On the subject of rhinestones, my understanding is that they are so resolute on keeping these innocent stones in the bill that they would be willing to write rhinestones in explicitly. This is the opposite of case-by-case exclusion - it's a case-by-case INCLUSION.
- Educational Products. While the Waxmanites say they want to exclude educational products, they can't figure out how to do it since you might use an educational product in your home. Horrors! Again, without a simple notion of what's safe and what's not, how do you expect a sensible rule to emerge from this primordial goo?
- Bikes. They really want to figure out how to help bikes but can't seem to do it. For this reason, they are chatting about an indoor/outdoor exclusion. In other words, and I am not kidding, they have suggested a rule that if you keep something in your garage, it's "out", and if you keep it indoors, it's "in". So everybody - move all your toys, children's clothing and shoes, furniture, books, pens, appliances and so on into your garage, quick, so you can qualify for this great new exemption! [Try to resist holding a garage sale, though, because that presents special risks under the law!]
Not one to look a gift horse in the mouth, I am happy they are thinking of an amendment, but I am not happy that we still find ourselves adrift without any sense of what's safe and what's not. It is hard to foresee an amendment that does much good with this kind of inflexibility. Bipartisanship promises to be hard to obtain or a sham staged by Democrats for their own benefit.
Remarkably, a hidden issue that may weigh on these proceedings is the growing awareness of paralysis at the CPSC. The agency saw a massive increase in its budget last year, to match its massive new responsibilities, but still finds itself mired in open projects and conflicting priorities. Simple things are taking forever. Agency paralysis cannot be prevented in this environment without a significant paring of CPSIA priorities, something that the Waxmanites have a hard time conceding. And Obama won't give the agency more money, so they're stuck. And we're stuck.
That's not where you want to be.
Something to think about as we go forward:
- Principle One: Your silence is deemed to be your approval. Silence = approval. You must swing from the rafters to get their attention, too. No, don't do that - too dangerous.
- Principle Two: An unopposed view, particularly a document with footnotes, is considered definitive. After all, if it were wrong, why didn't anyone point it out, with footnotes? This is really how the Waxmanites think.
You need to keep these principles in mind. Your loud involvement can help a lot.
To Be Continued . . . .
Saturday, February 6, 2010
CPSIA - Let's Play a Cadmium Game!
We all know that cadmium is dangerous. After all, the Associated Press and seven Senators told us so. I have asked the innocent question - if cadmium is so dangerous that we absolutely cannot tolerate it in jewelry, what else is similarly dangerous? We have a business making children's products so it's important that we understand this critical question, right?
At this point, other than whatever the AP decides to print tomorrow, we know that anything with lead is really dangerous. The CPSC, following orders, determined that palladium, rhodium, osmium, iridium and ruthenium are safe. They blessed these materials for inclusion in children's products in August 2009 so they must be safe, right? Here's what the CPSC said: "In addition, in the proposed rule, the Commission preliminarily determined that certain metals and alloys did not exceed the lead content limits under section 101(a) of the CPSIA provided that no lead or lead-containing metal is intentionally added. The metals and alloys considered included surgical steel, precious metals such as gold (at least 10 karat); sterling silver (at least 925/1000); platinum; palladium; rhodium; osmium; iridium; ruthenium."
So here's the game: match the following statements from Wikipedia about these elements with the element itself. [To verify my quotes, just go to Wikipedia and search for the element.]
At this point, other than whatever the AP decides to print tomorrow, we know that anything with lead is really dangerous. The CPSC, following orders, determined that palladium, rhodium, osmium, iridium and ruthenium are safe. They blessed these materials for inclusion in children's products in August 2009 so they must be safe, right? Here's what the CPSC said: "In addition, in the proposed rule, the Commission preliminarily determined that certain metals and alloys did not exceed the lead content limits under section 101(a) of the CPSIA provided that no lead or lead-containing metal is intentionally added. The metals and alloys considered included surgical steel, precious metals such as gold (at least 10 karat); sterling silver (at least 925/1000); platinum; palladium; rhodium; osmium; iridium; ruthenium."
So here's the game: match the following statements from Wikipedia about these elements with the element itself. [To verify my quotes, just go to Wikipedia and search for the element.]
- Cadmium
- Palladium
- Rhodium
- Osmium
- Iridium
- Ruthenium
A. "[This element] reacts with oxygen at room temperature forming volatile [element] tetroxide. . . . [Element] tetroxide is highly volatile and penetrates skin readily, and is very toxic by inhalation, ingestion, and skin contact."
B. "[This element] is also a potential environmental hazard. Human exposures to environmental [element] are primarily the result of the burning of fossil fuels and municipal wastes. However, there have been notable instances of toxicity as the result of long-term exposure to [this element] in contaminated food and water."
C. "[This element] chloride was at one time prescribed as a tuberculosis treatment at the rate of 0.065 g per day (approximately one milligram per kilogram of body weight). This treatment did have many negative side-effects, and was later replaced by more effective drugs."
D. "The compound [element tetroxide] similar to [XXX] tetroxide, is volatile, highly toxic and may cause explosions if allowed to come into contact with combustible materials. [This element] plays no biological role but does strongly stain human skin, may be carcinogenic and bio-accumulates in bone."
E. "[C]hemical complexes of [this element] can be reactive. Lethal intake for rats is 12.6 mg/kg of [element chloride] [This element] compounds can strongly stain human skin. The element plays no biological role in humans."
F. "Very little is known about the toxicity of [this element's] compounds because they are used in very small amounts, but soluble salts, such as the [element] halides, could be hazardous due to elements other than [element] or due to [the element] itself."
It's good to know that only one of these items is considered dangerous. I feel safer already!
Tuesday, January 26, 2010
CPSIA - In Defense of Lead
Perhaps you have been expecting it. After all the "heat" in this blog over the past year, finally, my defense of lead. Hope you're happy now. . . .
Last Friday, Commissioner Bob Adler posted his long-awaited position paper on lead and related CPSIA issues. Weighing in at 21 pages and 89 footnotes, Mr. Adler's paper includes a thorough recitation of facts as well as his recommendations about the law. Among other things, he recommends making the lead exemption process more flexible and allowing clothing to be sold through charity resale shops. He also left the door open to changes that would ease the economic burden of the CPSIA on small businesses and low-income consumers. I agree with all of these changes - but I also think many other and more extensive changes are needed, too. I do not agree with the basis of Mr. Adler's reasoning, however, and that makes all the difference.
Mr. Adler devotes about half of his statement to a detailed analysis of lead safety, reciting many facts that are not in dispute. Unfortunately, he then leaps to familiar conclusions that we have seen in recent Commission meetings and which are also found in many of his written statements. He does signal some extremely limited flexibility on lead, more or less hewing to the line put forth by Central Casting.
Ironically, Mr. Adler's statement sometimes leaves you wondering where he stands, since he seems so sympathetic to both sides. It is frustrating to not have a clear picture of how he really sees the world. I fail to find persuasive his argument that the lead rules are good for us when they lead to ridiculous results like the banning of brass bushings on toy cars. Mr. Adler himself noted in the Learning Curve hearing that the brass bushings pose NO risk to children at a hypothetical tipping point with blood lead levels (in other words, the toys were incontrovertibly safe) - and then voted to ban them because the law compelled it. This should trigger a sense of outrage in the Commissioner . . . but it doesn't.
To me, as an ex-lawyer, the illogical results documented in the Learning Curve case are intolerable. It is proof of a defective law and a defective system. Banning acknowledged safe products is a SIGN of problems, not something to rejoice in. As you know, it costs money to toss away perfectly good product. It also costs a lot of money to employ CPSC staff and Commissioners to decide silly cases like the brass bushing case. Something's quite wrong if we are celebrating a system so obviously broken.
i believe there are fundamental flaws in Mr. Adler's views on lead which prompt him to make recommendations basically defending a broken, illogical and self-destructive legislative system. Let me start by stating what I considered to be incontrovertible facts:
The Adler statement paints a pretty compelling picture and the 89 footnotes were presumably intended to add academic gravitas to his arguments. However, not all academics agree with Adler. Here are videos of the presentations of two Ph.D.s who specialize in risk assessment in children's products and lead issues taking an opposite view: Richard Reiss of Exponent and Barbara Beck of Gradient. They both note that the dose makes the poison and that only through true risk assessment will a sensible safety system be possible.
A couple brief notes:
- Mr. Adler talks a lot about retroactivity in the CPSIA. At the end of the day, he comes down . . . get ready for it . . . in favor of retaining retroactivity, but also for the recommendation of the Commission to make the pending 100 ppm lead standard prospective. I am not commenting on his arguments other than to say that I think relaxation of this provision would bring considerable economic relief without any possibility of physical harm to anyone. That's enough reasoning for me.
- In calling for change to the lead exemption process, Adler is apparently willing to support only "a modest expansion in the amount of discretion granted to the Commission". I find this rather curious and unexplained - he only wants a little discretion. Why? Does he worry that the Commission can't handle the responsibility for full discretion? Again, why? I wonder if greater powers suggested this very limited recommendation out of a lack of "trust", namely trust of future Commissions not hand-picked by this Dem-dominated Congress. No matter the explanation, it is curious indeed to see a Commissioner ask Congress to extend his Commission limited discretion.
- Adler devotes considerable space to sale of children's clothing at resale shops. He ultimately recommends that charity resale shops be allowed to sell children's clothing (possibly subject to posted Proposition 65-like warnings, see footnote 88). Adler's logic in this section is puzzling to me. Is Adler trying to defend children or defend the CPSIA? He concedes that clothing has no history of causing injury from lead but is apparently troubled that it cannot be proven that a child couldn't be harmed by clothing. Incredibly, he resolves the dilemma by distinguishing between resales made by charity shops and by for-profit shops, leaving the latter out of his proposed exemption. So is he approving the sale of unsafe products by charity resale shops to poor people so they can stay warm? Or is he saying that the clothes are probably safe, but can't be sold by for-profit stores for . . . what reason? If the clothing is safe to sell, sell it . . . and if it isn't, don't. WHO sells it shouldn't matter. But apparently it does.
An aside: Mr. Adler uses some strong language to discuss those of us who have pushed back on this law: "As I have waded into the debate, I have encountered many thoughtful, sincere, and anguished concerns about the CPSIA. I have also heard numerous overheated arguments, scanned many bloviating blogs, and read great numbers of error-laden emails (and letters) commenting on the law." For those of you who don't know this SAT word, "bloviating" is defined as "[to] discourse at length in a pompous or boastful manner" on dictionary.com. I wish our government officials would stick to the issues and avoid attacking the exercise of Free Speech by U.S. citizens. This is particularly the case here, since after a long fight, many of those bloviaters have been proven right. I don't expect thanks, but I think this is out of line.
I could go on, but I won't. Mr. Adler's voice in the debate is an important one and I appreciate his efforts to set the record straight. I don't agree with him and appreciate the opportunity to reply.
You be the judge!
Last Friday, Commissioner Bob Adler posted his long-awaited position paper on lead and related CPSIA issues. Weighing in at 21 pages and 89 footnotes, Mr. Adler's paper includes a thorough recitation of facts as well as his recommendations about the law. Among other things, he recommends making the lead exemption process more flexible and allowing clothing to be sold through charity resale shops. He also left the door open to changes that would ease the economic burden of the CPSIA on small businesses and low-income consumers. I agree with all of these changes - but I also think many other and more extensive changes are needed, too. I do not agree with the basis of Mr. Adler's reasoning, however, and that makes all the difference.
Mr. Adler devotes about half of his statement to a detailed analysis of lead safety, reciting many facts that are not in dispute. Unfortunately, he then leaps to familiar conclusions that we have seen in recent Commission meetings and which are also found in many of his written statements. He does signal some extremely limited flexibility on lead, more or less hewing to the line put forth by Central Casting.
Ironically, Mr. Adler's statement sometimes leaves you wondering where he stands, since he seems so sympathetic to both sides. It is frustrating to not have a clear picture of how he really sees the world. I fail to find persuasive his argument that the lead rules are good for us when they lead to ridiculous results like the banning of brass bushings on toy cars. Mr. Adler himself noted in the Learning Curve hearing that the brass bushings pose NO risk to children at a hypothetical tipping point with blood lead levels (in other words, the toys were incontrovertibly safe) - and then voted to ban them because the law compelled it. This should trigger a sense of outrage in the Commissioner . . . but it doesn't.
To me, as an ex-lawyer, the illogical results documented in the Learning Curve case are intolerable. It is proof of a defective law and a defective system. Banning acknowledged safe products is a SIGN of problems, not something to rejoice in. As you know, it costs money to toss away perfectly good product. It also costs a lot of money to employ CPSC staff and Commissioners to decide silly cases like the brass bushing case. Something's quite wrong if we are celebrating a system so obviously broken.
i believe there are fundamental flaws in Mr. Adler's views on lead which prompt him to make recommendations basically defending a broken, illogical and self-destructive legislative system. Let me start by stating what I considered to be incontrovertible facts:
- Lead is bad
- Lead can be dangerous to children
- Harming children is bad, and unacceptable if reasonably foreseeable.
- Lead poisoning in children is largely if not entirely the fault of lead house paint and leaded gasoline
Mr. Adler makes the latter point in his footnote 83: "Clothing is not a significant source of lead poisoning. Far and away the greatest source of lead poisoning is lead paint in older housing, lead-saturated soil from gasoline emanated over the years from automobile exhausts, and lead-saturated dust (both from paint and gasoline)." [Other citations omitted] It is important to remember that Mr. Adler KNOWS that blood lead level problems stem from house paint and the long term consequences of years of leaded gasoline use (particularly in the inner city).
Mr. Adler tries to prove that lead is bad - but that fact is beyond dispute. He goes further and builds the case that there is no "safe" level of lead, providing citations. Thus established, he then seems to justify the legislation's strict terms based on the logic that if science hasn't identified a safe level for lead, every instance of lead is therefore dangerous: "We may have currently reached the outer limits of our ability to measure negative effects of exposure to small amounts of lead, but that does not mean that no adverse effects are occurring. It basically means that we do not know." Scary stuff. . . but what does he really think?
It's hard to tell. Notwithstanding his assertion that no level of lead is safe, Adler seems oddly reassured by the permitted levels set by Congress: "[Given] that lead remains ubiquitous and often unavoidable, policymakers who are fully aware of lead's risks, have sought to determine some level of lead that would be acceptable - at least until new information becomes available." And these all-knowing policymakers (Congress) set a retroactive scheme of rapidly declining permitted lead levels. In other words, what was considered "safe" (meaning legal) on February 9, 2009, was "unsafe" on February 10, 2009, and what was considered "safe" on February 10, 2009 became "unsafe" on August 14, 2009, and what was "safe" on August 14, 2009 promises to become "unsafe" on August 14, 2011. Mr. Adler analyzes retroactivity under the CPSIA in his statement and then endorses it. Huh?
I fail to grasp the logic of either Congress or Mr. Adler here. Is lead in substrate dangerous or is it not? Is there a safe level for lead or is there not? Is lead safe on one day, and not safe on the next day? If so, can someone explain the science of that safe/unsafe trigger to me? I believe Mr. Adler's accommodative attitude toward the lead standards and retroactivity is best explained by politics than by any notions of safety or risk.
It is even harder to take Adler's stern tones on lead seriously when you consider the volume of lead elsewhere in a child's life. Will regulation of lead in substrate in children's products have any material impact on blood lead levels? Can anyone prove that it will, or that the cost of getting rid of all the lead is worth the cost? Remember that we could redeploy the same money for more impactful projects, like eliminating high lead levels in drinking water in schools or remediating soil contaminated with lead. We have already covered the fact that Mr. Adler knows that blood lead levels are fundamentally tied to exposure to leaded house paint and contaminated soil. It is also well-known that cars are coated in lead paint, legally under our laws. Lead is also in our food chain, is found in nature - and enters our bodies every day. [For data on this topic, see "Eat My Dust".] By obsessing on children's products in the face of these facts, Congress ensured that its new legislation would fail to deliver measurable results.
In essence, the slogan "no safe level for lead" connotes a risk-free condition. "Risk-free" is an unrealistic standard and FAR too expensive as public policy. Mr. Adler uses this formulation in his lengthy analysis of used clothing sales: "In sum, I cannot state with certainty that a "safety" threshold of, say, 1 µg/dL blood level change would never occur from zipper sucking. . . . The fact that I cannot say there is no risk is why I characterize the choice [between allowing and banning resale of used clothing] as between bad and worse." [Emphasis added] Mr. Adler is not following a legal principle here, he is asserting one. This is the precautionary principle, the famous Nanny State being implemented before your very eyes.
It is difficult to diffuse an argument based on the elimination of all possible risk. If we wish to organize our society around the elimination of risk, rather than the management of risk, we are doomed. All of us, not just the children's product industry. The sad truth is that no one in the Federal government can prove that the policies of the last 35 years on lead caused injury. Mr. Adler implicitly asserts that our inability to prove that it DIDN'T is enough justification to throw the old system out. This is a belief system, not science.
The fear of risk is fanned by the threat of undetectable dangers. Mr. Adler notes: "To say the effects [of lead on healthy children] are not directly observable is not to say that that they are minor." He amplifies this point by implying a link to children's products to lead injuries without any proof of a relationship: "[MRI] technology has permitted us to identify permanent damage in adults stemming from childhood lead exposures." Exposure to what, precisely? ABC blocks or the soil next to an inner-city apartment building in the leaded gasoline era? Mr. Adler's assertion that we just don't know what the harm is dodges the real question - how do you know there is any harm resulting from THESE USES OF LEAD? No answer is supplied because no one can answer that question.The Adler statement paints a pretty compelling picture and the 89 footnotes were presumably intended to add academic gravitas to his arguments. However, not all academics agree with Adler. Here are videos of the presentations of two Ph.D.s who specialize in risk assessment in children's products and lead issues taking an opposite view: Richard Reiss of Exponent and Barbara Beck of Gradient. They both note that the dose makes the poison and that only through true risk assessment will a sensible safety system be possible.
A couple brief notes:
- Mr. Adler talks a lot about retroactivity in the CPSIA. At the end of the day, he comes down . . . get ready for it . . . in favor of retaining retroactivity, but also for the recommendation of the Commission to make the pending 100 ppm lead standard prospective. I am not commenting on his arguments other than to say that I think relaxation of this provision would bring considerable economic relief without any possibility of physical harm to anyone. That's enough reasoning for me.
- In calling for change to the lead exemption process, Adler is apparently willing to support only "a modest expansion in the amount of discretion granted to the Commission". I find this rather curious and unexplained - he only wants a little discretion. Why? Does he worry that the Commission can't handle the responsibility for full discretion? Again, why? I wonder if greater powers suggested this very limited recommendation out of a lack of "trust", namely trust of future Commissions not hand-picked by this Dem-dominated Congress. No matter the explanation, it is curious indeed to see a Commissioner ask Congress to extend his Commission limited discretion.
- Adler devotes considerable space to sale of children's clothing at resale shops. He ultimately recommends that charity resale shops be allowed to sell children's clothing (possibly subject to posted Proposition 65-like warnings, see footnote 88). Adler's logic in this section is puzzling to me. Is Adler trying to defend children or defend the CPSIA? He concedes that clothing has no history of causing injury from lead but is apparently troubled that it cannot be proven that a child couldn't be harmed by clothing. Incredibly, he resolves the dilemma by distinguishing between resales made by charity shops and by for-profit shops, leaving the latter out of his proposed exemption. So is he approving the sale of unsafe products by charity resale shops to poor people so they can stay warm? Or is he saying that the clothes are probably safe, but can't be sold by for-profit stores for . . . what reason? If the clothing is safe to sell, sell it . . . and if it isn't, don't. WHO sells it shouldn't matter. But apparently it does.
An aside: Mr. Adler uses some strong language to discuss those of us who have pushed back on this law: "As I have waded into the debate, I have encountered many thoughtful, sincere, and anguished concerns about the CPSIA. I have also heard numerous overheated arguments, scanned many bloviating blogs, and read great numbers of error-laden emails (and letters) commenting on the law." For those of you who don't know this SAT word, "bloviating" is defined as "[to] discourse at length in a pompous or boastful manner" on dictionary.com. I wish our government officials would stick to the issues and avoid attacking the exercise of Free Speech by U.S. citizens. This is particularly the case here, since after a long fight, many of those bloviaters have been proven right. I don't expect thanks, but I think this is out of line.
I could go on, but I won't. Mr. Adler's voice in the debate is an important one and I appreciate his efforts to set the record straight. I don't agree with him and appreciate the opportunity to reply.
You be the judge!
Monday, January 18, 2010
CPSIA - Commission Report to Congress on CPSIA Changes
The CPSC Commission issued its January 15 Congressional report on recommended changes to the CPSIA last Friday. As promised by Inez Tenenbaum, the Commissioners were afforded the opportunity to present individual statements to accompany the Commission report. Four of the Commissioners (Tenenbaum, Adler, Nord and Northup) chose to present their own statements. Adler also promised a supplemental statement on the subject of lead, which has not been released yet to my knowledge.
The Report and the accompanying statements make interesting reading. I do not propose to summarize the documents here, but have set out a few thoughts:
a. The Commission's Consensus is Important. The Commissioners made a big effort to speak with one voice in the report. While they certainly did not agree on everything, their effort to achieve bipartisanship agreement in the report sends a good message. The Commission needs to work harder to find this middle ground more consistently and less fractiously. There is NO JUSTIFICATION for turning safety into a game of political football. If the Commission can work better together, confidence in their administration will grow and extremes will be avoided.
The prohibition against full Commission meetings in private (the Sunshine Act) is a hidden factor in the report. Since the Commission ill-advisedly voted down a public discussion of the report, the Commissioners were prevented from meeting in groups of three, four or five. When you read this report, imagine how it might have read if the five Commissioners were allowed to sit in a room and duke it out. It might have been a better document, more complete and more prescriptive.
b. Where's the Functional Purpose Exception??? The report is as interesting for what it DOESN'T say as for what it does say. Most importantly, the functional purpose exemption is GONE. Rumorville has it that the functional purpose exception became more and more ornate and complex as the Commissioners struggled to write a recommendation until even its most ardent supporters had to concede that it wasn't going to work. This was set up to be Waxman's excuse to do nothing or nearly nothing. It's not there anymore.
Too bad for Henry, huh?
c. The Commissioners' Statements Reveal that Common Sense is Divided on Party Lines. The Commissioners' statements reveal a lack of communication within the Commission. I know they were talking but it appears that some messages weren't being heard. The statements of the two Democrats (Moore apparently did not prepare a statement) were straight out of Central Casting. Disappointingly, Ms. Tenenbaum chose to repeat a fairy tale about the law's origins:
"In response to the flood of dangerous imported products, which were involved in tragic fatalities, poisonings and injuries involving children, Congress closely examined the needs of the CPSC and the statutory changes necessary to enhance the regulatory safety net maintained by the agency. Congress spent considerable time reviewing these needs and continually consulted with the agency’s leaders, staff, consumer groups, and the regulated community in order to carefully craft the proper legislation to achieve this end. Seeing a clear need to reauthorize and reinvigorate CPSC with new energy and purpose, Congress passed a sweeping law." [Emphasis added]
The re-characterization of what was essentially an anger-fueled legislative mania into some sort of group hug is apparently the Democrats' effort to justify a passive or inert approach to fixing the law. In addition, both Tenenbaum and Adler repeated the misleading togline about the dangers of lead, although I don't think that's news anymore. It's also not really relevant to discussing the issues under the law - and their persistent refusal to acknowledge this is disappointing.
The Republicans (Nord and Northup) delivered rational and balanced statements that calmly and appropriately diagnosed the issues with the law. They are cognizant of the excesses of the law, the dramatic impact on both the regulated community and the hobbled agency itself. The Reps make no effort to prop up the CPSIA - you know, the law passed by REPUBLICANS AND DEMOCRATS ALIKE. There's no pride of authorship by the Reps - to their credit, these Commissioners seem to be trying to restore a rational system of law and regulation designed to provide appropriate levels of safety at an affordable cost.
I am tired of the Dems on the Commission simply being good Dem soldiers rather than committed stewards of safety. The ANGER expressed in Massachusetts today is a strong message to the Dems - America is sick and tired of government aggressively inserting itself into every aspect of our lives, including by way of the CPSIA and its precautionary principle. See tonight's Wall Street Journal for more details. It will be interesting to see if Massachusetts impacts the CPSIA amendment process.
d. Does it Matter What's Safe Anymore? I am struck again by the absurdity of the debate over lead. As I see it, the debate is over which incidents of lead that are illegal should be permitted. This is different from defining what constitutes safe lead. This used to be a simple decision. Now the premise is that there is NO safe level of lead. Is that really TRUE?
Think of ALL cases where lead is found in children's products. Now separate them into two piles, one that is labeled "safe" and one that is labeled "not safe". How do these piles compare to the piles made by the CPSIA, FHSA and CPSA? Well, that question never comes up in the debate. The big question is about compliance with law, not safety.
This is not a rational system for administering risk. First of all, if lead were so deadly that it needed to be eliminated in all cases in all children's products, then presumably we would be even MORE motivated to remove it from our food, water and air (not to mention dirt). After all, we consume food etc. and the lead in the food gets into our bloodstreams. But this isn't an issue today because the CPSIA didn't make it illegal - and apparently the CPSC does not feel lead is dangerous in food, water or air (or else it would have acted on the threat under the FHSA). It gets worse - consider that lead paint is illegal on children's products but not on cars. If lead is so dangerous and mere contact with lead-in-substrate is so dangerous that it is utterly intolerable in a modern, sophisticated society likes ours, then why does the CPSC permit kids to touch or even ride in cars? After all, the zipper pull on a kid's golf bag is illegal if it has a dot of lead paint on it. But a whole car dripping with lead paint, that's fine.
The answer - it doesn't matter what's safe when it comes to lead, it only matters what's legal. The Dems prefer to portray what's illegal as unsafe, and imply that what's legal is safe. [Call this the All-Knowing Congress argument.] It's hard to take this seriously. It's time for them to drop the precautionary principle pretense and start being accountable for the rationality of their regulatory positions. If lead is a crisis as they say, then please ban everything with lead in it, including our entire food chain. I am ready to be safe, finally.
e. What Has Been Accomplished in the Last 18 Months??? Does it bother you as much as me that so little has been accomplished by the last 18 months of chaos? The many steps and achievements documented in the report and statements might make a bureaucrat blush with pride but how have injury statistics changed? [Recall statistics are a poor measure of the effectiveness of safety rules.] How much did we pay as a society for these extremely meager achievements? If you add in the cost to our society of a crippled safety agency, the price we paid is staggering. The waste is sickening. It's not possible for me to read the recounting without a sense of loss.
f. Does Anyone Else Want An Exemption? Umm, Yeah! It's important to note that the low number of exemption requests does not reflect a lack of interest in exemptions. Exemption requests are very expensive to prepare and are complex. In many cases, the exemption request will obviously be rejected or is too broad to state in any compelling way. For instance, educational products span so many categories that it is impossible to state a coherent exemption request. More importantly, the real inhibition to filing is a fear of losing the request. For many companies, it just doesn't pay to ask for permission - they prefer to beg for forgiveness if a problem ever arises.
Anne Northup correctly notes in her statement that it is bad law to require that regulated companies line up for exemptions. She is not arguing on behalf of the companies - she focuses on the huge burden these requests place on the CPSC and the Commission. She is TOTALLY correct. The idea that we should have a safety system based on exceptions would only appeal to the IRS. Somebody needs to listen to Northup on this point.
g. The Report Whitewashes Ineffective Help for Resale Shops. It is a sad joke to assert that coaching resale shops with the CPSC's guidance document and a few workshops is somehow a solution to the massive problem caused by the CPSIA. For one thing, it is quite clear that this message has not reached its audience. The CPSC's approach is inherently inefficient and unlikely to bring relief to many affected stores. A better law is the necessary solution. Second, it is apparent that the CPSC's efforts did not relieve anxiety - the stores are still dropping children's items. This lack of accountability begins to look cynical when you consider that only last week, Scott Wolfson was warning people not to sell cheap jewelry on auction sites or in resale shops. Hmmm, that sounds very reassuring, doesn't it? Problem solved!
If the Commission truly cares about resale shops, then a more effective approach (including a communication strategy) needs to be implemented.
With the issuance of the report and statements, the shuttlecock has been batted back to Congress. The next step is to work on a long-needed amendment of this awful law. Stay tuned.
The Report and the accompanying statements make interesting reading. I do not propose to summarize the documents here, but have set out a few thoughts:
a. The Commission's Consensus is Important. The Commissioners made a big effort to speak with one voice in the report. While they certainly did not agree on everything, their effort to achieve bipartisanship agreement in the report sends a good message. The Commission needs to work harder to find this middle ground more consistently and less fractiously. There is NO JUSTIFICATION for turning safety into a game of political football. If the Commission can work better together, confidence in their administration will grow and extremes will be avoided.
The prohibition against full Commission meetings in private (the Sunshine Act) is a hidden factor in the report. Since the Commission ill-advisedly voted down a public discussion of the report, the Commissioners were prevented from meeting in groups of three, four or five. When you read this report, imagine how it might have read if the five Commissioners were allowed to sit in a room and duke it out. It might have been a better document, more complete and more prescriptive.
b. Where's the Functional Purpose Exception??? The report is as interesting for what it DOESN'T say as for what it does say. Most importantly, the functional purpose exemption is GONE. Rumorville has it that the functional purpose exception became more and more ornate and complex as the Commissioners struggled to write a recommendation until even its most ardent supporters had to concede that it wasn't going to work. This was set up to be Waxman's excuse to do nothing or nearly nothing. It's not there anymore.
Too bad for Henry, huh?
c. The Commissioners' Statements Reveal that Common Sense is Divided on Party Lines. The Commissioners' statements reveal a lack of communication within the Commission. I know they were talking but it appears that some messages weren't being heard. The statements of the two Democrats (Moore apparently did not prepare a statement) were straight out of Central Casting. Disappointingly, Ms. Tenenbaum chose to repeat a fairy tale about the law's origins:
"In response to the flood of dangerous imported products, which were involved in tragic fatalities, poisonings and injuries involving children, Congress closely examined the needs of the CPSC and the statutory changes necessary to enhance the regulatory safety net maintained by the agency. Congress spent considerable time reviewing these needs and continually consulted with the agency’s leaders, staff, consumer groups, and the regulated community in order to carefully craft the proper legislation to achieve this end. Seeing a clear need to reauthorize and reinvigorate CPSC with new energy and purpose, Congress passed a sweeping law." [Emphasis added]
The re-characterization of what was essentially an anger-fueled legislative mania into some sort of group hug is apparently the Democrats' effort to justify a passive or inert approach to fixing the law. In addition, both Tenenbaum and Adler repeated the misleading togline about the dangers of lead, although I don't think that's news anymore. It's also not really relevant to discussing the issues under the law - and their persistent refusal to acknowledge this is disappointing.
The Republicans (Nord and Northup) delivered rational and balanced statements that calmly and appropriately diagnosed the issues with the law. They are cognizant of the excesses of the law, the dramatic impact on both the regulated community and the hobbled agency itself. The Reps make no effort to prop up the CPSIA - you know, the law passed by REPUBLICANS AND DEMOCRATS ALIKE. There's no pride of authorship by the Reps - to their credit, these Commissioners seem to be trying to restore a rational system of law and regulation designed to provide appropriate levels of safety at an affordable cost.
I am tired of the Dems on the Commission simply being good Dem soldiers rather than committed stewards of safety. The ANGER expressed in Massachusetts today is a strong message to the Dems - America is sick and tired of government aggressively inserting itself into every aspect of our lives, including by way of the CPSIA and its precautionary principle. See tonight's Wall Street Journal for more details. It will be interesting to see if Massachusetts impacts the CPSIA amendment process.
d. Does it Matter What's Safe Anymore? I am struck again by the absurdity of the debate over lead. As I see it, the debate is over which incidents of lead that are illegal should be permitted. This is different from defining what constitutes safe lead. This used to be a simple decision. Now the premise is that there is NO safe level of lead. Is that really TRUE?
Think of ALL cases where lead is found in children's products. Now separate them into two piles, one that is labeled "safe" and one that is labeled "not safe". How do these piles compare to the piles made by the CPSIA, FHSA and CPSA? Well, that question never comes up in the debate. The big question is about compliance with law, not safety.
This is not a rational system for administering risk. First of all, if lead were so deadly that it needed to be eliminated in all cases in all children's products, then presumably we would be even MORE motivated to remove it from our food, water and air (not to mention dirt). After all, we consume food etc. and the lead in the food gets into our bloodstreams. But this isn't an issue today because the CPSIA didn't make it illegal - and apparently the CPSC does not feel lead is dangerous in food, water or air (or else it would have acted on the threat under the FHSA). It gets worse - consider that lead paint is illegal on children's products but not on cars. If lead is so dangerous and mere contact with lead-in-substrate is so dangerous that it is utterly intolerable in a modern, sophisticated society likes ours, then why does the CPSC permit kids to touch or even ride in cars? After all, the zipper pull on a kid's golf bag is illegal if it has a dot of lead paint on it. But a whole car dripping with lead paint, that's fine.
The answer - it doesn't matter what's safe when it comes to lead, it only matters what's legal. The Dems prefer to portray what's illegal as unsafe, and imply that what's legal is safe. [Call this the All-Knowing Congress argument.] It's hard to take this seriously. It's time for them to drop the precautionary principle pretense and start being accountable for the rationality of their regulatory positions. If lead is a crisis as they say, then please ban everything with lead in it, including our entire food chain. I am ready to be safe, finally.
e. What Has Been Accomplished in the Last 18 Months??? Does it bother you as much as me that so little has been accomplished by the last 18 months of chaos? The many steps and achievements documented in the report and statements might make a bureaucrat blush with pride but how have injury statistics changed? [Recall statistics are a poor measure of the effectiveness of safety rules.] How much did we pay as a society for these extremely meager achievements? If you add in the cost to our society of a crippled safety agency, the price we paid is staggering. The waste is sickening. It's not possible for me to read the recounting without a sense of loss.
f. Does Anyone Else Want An Exemption? Umm, Yeah! It's important to note that the low number of exemption requests does not reflect a lack of interest in exemptions. Exemption requests are very expensive to prepare and are complex. In many cases, the exemption request will obviously be rejected or is too broad to state in any compelling way. For instance, educational products span so many categories that it is impossible to state a coherent exemption request. More importantly, the real inhibition to filing is a fear of losing the request. For many companies, it just doesn't pay to ask for permission - they prefer to beg for forgiveness if a problem ever arises.
Anne Northup correctly notes in her statement that it is bad law to require that regulated companies line up for exemptions. She is not arguing on behalf of the companies - she focuses on the huge burden these requests place on the CPSC and the Commission. She is TOTALLY correct. The idea that we should have a safety system based on exceptions would only appeal to the IRS. Somebody needs to listen to Northup on this point.
g. The Report Whitewashes Ineffective Help for Resale Shops. It is a sad joke to assert that coaching resale shops with the CPSC's guidance document and a few workshops is somehow a solution to the massive problem caused by the CPSIA. For one thing, it is quite clear that this message has not reached its audience. The CPSC's approach is inherently inefficient and unlikely to bring relief to many affected stores. A better law is the necessary solution. Second, it is apparent that the CPSC's efforts did not relieve anxiety - the stores are still dropping children's items. This lack of accountability begins to look cynical when you consider that only last week, Scott Wolfson was warning people not to sell cheap jewelry on auction sites or in resale shops. Hmmm, that sounds very reassuring, doesn't it? Problem solved!
If the Commission truly cares about resale shops, then a more effective approach (including a communication strategy) needs to be implemented.
With the issuance of the report and statements, the shuttlecock has been batted back to Congress. The next step is to work on a long-needed amendment of this awful law. Stay tuned.
Thursday, January 7, 2010
CPSIA - "Bad Optics" or Did Bob Adler Actually Learn His Lesson?
"Bad Optics".
I was thinking of that phase today as I was pondering the astounding mental gymnastics employed by Chairman Inez Tenenbaum and Commissioner Bob Adler to justify keeping private the Commissioners' debate over the agency's recommendations to change the CPSIA until the report is delivered to Congress. Tenenbaum and Adler both asserted yesterday that the private deliberations currently going on were more than sufficient to create the necessary "vigorous debate" all of us Americans hope would occur on a five-person Commission.
You are probably scratching your head. What's the big deal about the Commissioners sitting in one room and discussing an important issue? Well, there's a legal problem here: the Government in the Sunshine Act prohibits meetings of more than two Commissioners without announcing the meeting publicly and making it available to the public. [You owe C-SPAN to this law.] Arguably, three Commissioners can't take a taxi together or gather around the water cooler to resolve issues relating to the Cubs Spring Training line-up without an Internet camera firing away.
Here's some background on the Sunshine Act:
"The Government in the Sunshine Act was passed by the Congress of the United States in 1976. It required for the first time that all multithreaded federal agencies (meaning those which have units that work independent of each other) hold their meetings regularly in public session. The bill explicitly defined meetings as essentially any gathering, formal or informal, of agency members, stretching so far as to include conference calls.
Many federal agencies, most notably the independent regulatory agencies, are headed by collegial bodies. A clear example of this setup can be found in the five commissioners of the Federal Trade Commission. These agencies make most of their decisions through discussions and voting by the board or commissions members. This law was created so that these meetings would be in the public domain for all of us to review, so that if we wish, we can investigate the procedures and decisions of any multithreaded federal agency.
This bill was conceived and passed in the wake of the Watergate scandal, when American mistrust of government was running very high. The government responded by creating various committees to open the meetings of the government, but without a legal backbone to stand on, these groups were wholly ineffective. After some pressure from the public, the act was passed in order to provide a legal backbone for the opening of meeting records to the public."
So the Commissioners are not allowed to meet as a group unless you (the general public) are invited. As the above link attests, this means Commissioners may be constrained in what they choose to say - because you are peering in. Mr. Adler noted this issue yesterday and also expressed his frustration that as soon as he says something in a public meeting, "it's all over the blogosphere". You know, like in this column. Aside from the fact that the Sunshine Act is MEANT to facilitate precisely that, it also fosters accountability. I believe these same concepts underlie the Freedom of Speech, something we are all dependent on.
Ms. Nord pointed out that the purpose of a five-person Commission is to meet and work as a group. I would note (the obvious) that the debate proposed by Ms. Northup would occur AFTER all the private deliberations, and thus might occur at a very productive time. Whatever, Mr. Adler said he was satisfied with the current process, notwithstanding Ms. Northup's point that if meetings involved more than two Commissioners or were exposed to the light of day, errors might get corrected.
Errors - that's an interesting point, isn't it? Correcting erroneous information, probably a good thing, right? Bad information could lead to bad decisions. . . .
This leads us back to "bad optics". As you may recall, the Commission held a hearing on November 4th to decide the fate of Learning Curve and its famous brass bushings. Despite conceding that the brass bushings were perfectly safe, Mr. Adler voted against the exemption petition. Along the way (at about 25:00 in the video of the hearing), Mr. Adler launched into an unprompted and rather condescending bashing of Learning Curve, accusing them of "bad optics". Why did he do this? As I explained in a blogpost on November 5, Mr. Adler had received erroneous information about the company's sales practices from a member of another Commissioner's staff. Taking this information as fact, he gratuitously offered the company some coaching on managing appearances in Washington: "If I had to give any advice to [Learning Curve] on 'optics', I don't think it's such a good idea to come in and say 'We admit we're breaking the law, we'd like an exclusion but oh, by the way, we're going to continue selling this product during the pendency of the proceeding.' I would urge them at least as a matter of courtesy to withhold sale and distribution during the pendency of this proceeding." [Emphasis added] Of course, Learning Curve never said any of this.
You can imagine how Learning Curve must have felt about this - they were later to get whacked with a massive penalty for lead-in-paint, and those negotiations must have been going on at that very moment. When I wrote about this on November 4, Learning Curve's lawyer read my blog and contacted Mr. Adler, who then urgently called me (as I sat down to dinner while on vacation) to ask that I publish his retraction right away. You will find the retraction in the November 5 blogpost above and on the CPSC website.
Presumably this kind of experience leaves scars but now two months later, Mr. Adler appears to have forgotten it all. In early November, he was left exposed and embarrassed by erroneous information passed along in a private meeting. He was not protected by checks-and-balances because the Commissioners are unable to meet in groups and as a result, laid an egg in a very important hearing. To judge by the urgency of his appeal in November (and his remarks in yesterday's meeting), Mr. Adler does not like to be wrong nor be exposed as wrong. YET he now defends the very system that caused his own demise.
"Bad optics", indeed. Mr. Adler, what is the message here?
I was thinking of that phase today as I was pondering the astounding mental gymnastics employed by Chairman Inez Tenenbaum and Commissioner Bob Adler to justify keeping private the Commissioners' debate over the agency's recommendations to change the CPSIA until the report is delivered to Congress. Tenenbaum and Adler both asserted yesterday that the private deliberations currently going on were more than sufficient to create the necessary "vigorous debate" all of us Americans hope would occur on a five-person Commission.
You are probably scratching your head. What's the big deal about the Commissioners sitting in one room and discussing an important issue? Well, there's a legal problem here: the Government in the Sunshine Act prohibits meetings of more than two Commissioners without announcing the meeting publicly and making it available to the public. [You owe C-SPAN to this law.] Arguably, three Commissioners can't take a taxi together or gather around the water cooler to resolve issues relating to the Cubs Spring Training line-up without an Internet camera firing away.
Here's some background on the Sunshine Act:
"The Government in the Sunshine Act was passed by the Congress of the United States in 1976. It required for the first time that all multithreaded federal agencies (meaning those which have units that work independent of each other) hold their meetings regularly in public session. The bill explicitly defined meetings as essentially any gathering, formal or informal, of agency members, stretching so far as to include conference calls.
Many federal agencies, most notably the independent regulatory agencies, are headed by collegial bodies. A clear example of this setup can be found in the five commissioners of the Federal Trade Commission. These agencies make most of their decisions through discussions and voting by the board or commissions members. This law was created so that these meetings would be in the public domain for all of us to review, so that if we wish, we can investigate the procedures and decisions of any multithreaded federal agency.
This bill was conceived and passed in the wake of the Watergate scandal, when American mistrust of government was running very high. The government responded by creating various committees to open the meetings of the government, but without a legal backbone to stand on, these groups were wholly ineffective. After some pressure from the public, the act was passed in order to provide a legal backbone for the opening of meeting records to the public."
So the Commissioners are not allowed to meet as a group unless you (the general public) are invited. As the above link attests, this means Commissioners may be constrained in what they choose to say - because you are peering in. Mr. Adler noted this issue yesterday and also expressed his frustration that as soon as he says something in a public meeting, "it's all over the blogosphere". You know, like in this column. Aside from the fact that the Sunshine Act is MEANT to facilitate precisely that, it also fosters accountability. I believe these same concepts underlie the Freedom of Speech, something we are all dependent on.
Ms. Nord pointed out that the purpose of a five-person Commission is to meet and work as a group. I would note (the obvious) that the debate proposed by Ms. Northup would occur AFTER all the private deliberations, and thus might occur at a very productive time. Whatever, Mr. Adler said he was satisfied with the current process, notwithstanding Ms. Northup's point that if meetings involved more than two Commissioners or were exposed to the light of day, errors might get corrected.
Errors - that's an interesting point, isn't it? Correcting erroneous information, probably a good thing, right? Bad information could lead to bad decisions. . . .
This leads us back to "bad optics". As you may recall, the Commission held a hearing on November 4th to decide the fate of Learning Curve and its famous brass bushings. Despite conceding that the brass bushings were perfectly safe, Mr. Adler voted against the exemption petition. Along the way (at about 25:00 in the video of the hearing), Mr. Adler launched into an unprompted and rather condescending bashing of Learning Curve, accusing them of "bad optics". Why did he do this? As I explained in a blogpost on November 5, Mr. Adler had received erroneous information about the company's sales practices from a member of another Commissioner's staff. Taking this information as fact, he gratuitously offered the company some coaching on managing appearances in Washington: "If I had to give any advice to [Learning Curve] on 'optics', I don't think it's such a good idea to come in and say 'We admit we're breaking the law, we'd like an exclusion but oh, by the way, we're going to continue selling this product during the pendency of the proceeding.' I would urge them at least as a matter of courtesy to withhold sale and distribution during the pendency of this proceeding." [Emphasis added] Of course, Learning Curve never said any of this.
You can imagine how Learning Curve must have felt about this - they were later to get whacked with a massive penalty for lead-in-paint, and those negotiations must have been going on at that very moment. When I wrote about this on November 4, Learning Curve's lawyer read my blog and contacted Mr. Adler, who then urgently called me (as I sat down to dinner while on vacation) to ask that I publish his retraction right away. You will find the retraction in the November 5 blogpost above and on the CPSC website.
Presumably this kind of experience leaves scars but now two months later, Mr. Adler appears to have forgotten it all. In early November, he was left exposed and embarrassed by erroneous information passed along in a private meeting. He was not protected by checks-and-balances because the Commissioners are unable to meet in groups and as a result, laid an egg in a very important hearing. To judge by the urgency of his appeal in November (and his remarks in yesterday's meeting), Mr. Adler does not like to be wrong nor be exposed as wrong. YET he now defends the very system that caused his own demise.
"Bad optics", indeed. Mr. Adler, what is the message here?
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