In a further triumph for populism and public waste, the bankrupt State of Illinois today passed a high priority change in the Lead Poisoning Prevention Act (LPPA) as previously disclosed in this space. This Stop-The-Presses change in the law took priority over the incomplete deficit-ridden Illinois budget, Illinois' failure to pay its bills, its unfunded pension liabilities estimated at $140 Billion and the failure of its recent 67% increase in income tax rates to make a dent in its financial problems. Yes, the raging issue among the legislators was to fiddle with the meaningless and useless LPPA, better known for its utility on the stump looking for votes.
Thanks heavens for politicians!
Showing posts with label Illinois. Show all posts
Showing posts with label Illinois. Show all posts
Tuesday, May 31, 2011
Monday, May 23, 2011
CPSIA - The State of Illinois PAYS People to Do This
I live in a magical state. Actually, a magical State - the State of Illinois. Howdya like to have our balance sheet? My State of residence owes $45 Billion in borrowings (up from $12 Billion in 2002), has $140 Billion in unfunded pension and retiree health care benefits, is behind on payment of $8 Billion in bills (despite raising personal income tax rates by 66% this year, and is likely to run a multi-billion dollar deficit this year again. We have the second worst credit rating among the 50 States. Slow on the uptake or just magical? Ask California - they're the only place worse than us. We owe $8 Billion in unpaid bills - gag, this is civic humiliation.
And how is our wonderful State, the Land of Lincoln, spending its precious few resources these days? Well, a top priority is the lead labeling law. Ah, that old chestnut! Apparently, the scourge of lead has not been sufficiently snuffed out in Illinois. The absence of injuries, the sharp drop in recalls, the asphyxiating federal requirements are all inadequate around here to keep kids "safe". Our civic leaders have already put in place the toughest and most unreasonable lead labeling law in the country, out Proposition 65'ing even the real Proposition 65. Never content to leave "well enough" alone, they are going back to the well.
So our paid public servants with apparently very little to do have chosen to revise AND TIGHTEN the Illinois lead labeling law. See the attached working draft for your amusement (or nausea). They are extending it to all coatings - get your tests a-ready! - and have added a notation in the "warning" label to indicate that the product actually complies with federal standards. Yes, the ultimate mixed message - dangerous yet safe, all at the same time! - consumers will no doubt appreciate this extra effort by regulators. The law is now much more complex and impenetrable, too. Lucky us.
And why did the estimable Lisa Madigan, our Attorney General, demand this change in law? Gotta get elected right? If kids aren't made safer every day, whether science is involved or not, who needs the AG's office? No injuries motivated this change, just a basic lack of understanding of science and a passionate need to deceive the public.
Lisa Madigan's paycheck is among the bills that Illinois pays promptly, by the way. My tax refund isn't on the same list of priorities.
Welcome to the Land of Lunkheads. Illinois, you shining star!
And how is our wonderful State, the Land of Lincoln, spending its precious few resources these days? Well, a top priority is the lead labeling law. Ah, that old chestnut! Apparently, the scourge of lead has not been sufficiently snuffed out in Illinois. The absence of injuries, the sharp drop in recalls, the asphyxiating federal requirements are all inadequate around here to keep kids "safe". Our civic leaders have already put in place the toughest and most unreasonable lead labeling law in the country, out Proposition 65'ing even the real Proposition 65. Never content to leave "well enough" alone, they are going back to the well.
So our paid public servants with apparently very little to do have chosen to revise AND TIGHTEN the Illinois lead labeling law. See the attached working draft for your amusement (or nausea). They are extending it to all coatings - get your tests a-ready! - and have added a notation in the "warning" label to indicate that the product actually complies with federal standards. Yes, the ultimate mixed message - dangerous yet safe, all at the same time! - consumers will no doubt appreciate this extra effort by regulators. The law is now much more complex and impenetrable, too. Lucky us.
And why did the estimable Lisa Madigan, our Attorney General, demand this change in law? Gotta get elected right? If kids aren't made safer every day, whether science is involved or not, who needs the AG's office? No injuries motivated this change, just a basic lack of understanding of science and a passionate need to deceive the public.
Lisa Madigan's paycheck is among the bills that Illinois pays promptly, by the way. My tax refund isn't on the same list of priorities.
Welcome to the Land of Lunkheads. Illinois, you shining star!
Thursday, January 13, 2011
CPSIA - Let's Take a Break and Think About Illinois Taxes
Hey, every once in a while it's worth taking a breather and considering other truly amazing political stories from the big city. Consider this story entitled "Billion Dollar Baby: A Cautionary Tale" published today by Andy Shaw, formerly a local Chicago ABC-TV correspondent and now President of the Better Government Association (good luck there, Andy!).
In this tale, Mr. Shaw recounts how Illinois' 67% tax increase was passed by a single vote Tuesday evening during a short, one-week lame duck session. You see, the Dems who run this State with an iron fist were facing the loss of several seats to the Republicans when the new legislature was sworn into office on Wednesday, hence the need to pass the tax increase Tuesday in the middle of the night. How to do it, how to do it???
Mr. Shaw:
"She is somebody somebody sent.
In the best—or maybe it’s the worst—tradition of local politics. And she was pressured into voting for a multi-billion dollar hike in the state income tax in the wee hours of Wednesday morning. By her Democratic Party allies in Springfield.
Some of her friends and neighbors may be unhappy with the tax vote but she won’t be facing any political consequences or voter backlash. And here’s why: She stepped down as an Illinois State Representative at noon on Wednesday. After one week on the job. That’s right—one week. She was, in simple terms, the lamest lame duck in a feckless Springfield flock. A billion-dollar baby.
“She” is Kathy Moore, a Lincoln Park friend and former public school teacher who was put in that unenviable position by the stark reality of political hide-and-seek. Or, in this case, seek-and-hide. Her reliably Democratic 11th District, which includes Lincoln Park and Lakeview, elected a brand new state representative, Ann Williams, in November, to replace John Fritchey, a popular long-time rep who won election to a seat on the Cook County Board. Fritchey began his new job in December, so Williams could have been sworn in as a state rep a month ago to represent the district in the lame-duck session going on in Springfield this past week. That was her initial plan.
But there were questions about how she would vote if a tax plan was on the lame-duck agenda. Williams claims that local Democratic leaders, including Fritchey and Senate President John Cullerton, wanted her commitment to support the tax hike before arranging for her to be sworn in. They say she got cold feet and decided not to start early—choosing instead to wait until Wednesday, when the rest of the freshman legislative class was sworn in.
(That, parenthetically, will save the taxpayers a few bucks because Williams won’t qualify for a more generous legislative pension than the one awaiting the new class in Springfield, thanks to a modest pension reform bill that took effect on Jan. 1. But her decision will cost the 11th District politically because, instead of moving to the top of the seniority list of new legislators by starting in December, she will be near the bottom since she’s entering with all of the other newbies, and her last name begins with “W,” a letter near the end of the alphabet. Oh well.)
Meanwhile, back at the raunch—yes, I said raunch and not ranch—Williams’s decision not to be seated early meant the political bosses in the district—Fritchey, Cullerton and the other ward committeemen—had to find someone else to fill the seat for the one-week lame-duck session. So they recruited Kathy Moore, the wife of Tom Moore, a well-known Lincoln Park zoning lawyer—because Kathy had the time and the willingness to “serve.” And down I-55 she went. Admitting sheepishly at a party last week that “they tell me what (voting) button to push and I push it.” Democracy in action.
So when the tax bill passed, without a single vote to spare, our lawmaker-for-a-week was a major reason. She says she’s not happy about voting for a gargantuan tax increase but she doesn’t think that she, or the state, had any other choice. Even though, as of Sunday, she hadn’t seen a bill. Or a press release. Or a fact sheet. Or a list of cuts, accountability measures and streamlining to go along with the increase.
“I hope it works,” she said wistfully in a text message on Wednesday morning. Williams says, for the record, that she would’ve had a hard time supporting the tax bill in its present form.
In any event, Kathy Moore was back home in Chicago by Wednesday night after morphing into a regular resident following her week as a political pumpkin. Kind of like “Cinderella” in reverse. And she may not be the life of the cocktail parties in the neighborhood for awhile, at least among the well-healed wine-and-cheese folks who will have several-thousand fewer dollars in their pockets for each of the next four years.
As for Ann Williams, the newly elected House member, she assumed her duties as the new representative of the 11th district at noon on Wednesday. And my spies at her Springfield welcoming parties report there was no evidence of any dust, dirt or snow from the rock she’s been hiding under.
Don’t you just love the Illinois Way? And can’t you see why we love being civic watchdogs?"
In this tale, Mr. Shaw recounts how Illinois' 67% tax increase was passed by a single vote Tuesday evening during a short, one-week lame duck session. You see, the Dems who run this State with an iron fist were facing the loss of several seats to the Republicans when the new legislature was sworn into office on Wednesday, hence the need to pass the tax increase Tuesday in the middle of the night. How to do it, how to do it???
Mr. Shaw:
"She is somebody somebody sent.
In the best—or maybe it’s the worst—tradition of local politics. And she was pressured into voting for a multi-billion dollar hike in the state income tax in the wee hours of Wednesday morning. By her Democratic Party allies in Springfield.
Some of her friends and neighbors may be unhappy with the tax vote but she won’t be facing any political consequences or voter backlash. And here’s why: She stepped down as an Illinois State Representative at noon on Wednesday. After one week on the job. That’s right—one week. She was, in simple terms, the lamest lame duck in a feckless Springfield flock. A billion-dollar baby.
“She” is Kathy Moore, a Lincoln Park friend and former public school teacher who was put in that unenviable position by the stark reality of political hide-and-seek. Or, in this case, seek-and-hide. Her reliably Democratic 11th District, which includes Lincoln Park and Lakeview, elected a brand new state representative, Ann Williams, in November, to replace John Fritchey, a popular long-time rep who won election to a seat on the Cook County Board. Fritchey began his new job in December, so Williams could have been sworn in as a state rep a month ago to represent the district in the lame-duck session going on in Springfield this past week. That was her initial plan.
But there were questions about how she would vote if a tax plan was on the lame-duck agenda. Williams claims that local Democratic leaders, including Fritchey and Senate President John Cullerton, wanted her commitment to support the tax hike before arranging for her to be sworn in. They say she got cold feet and decided not to start early—choosing instead to wait until Wednesday, when the rest of the freshman legislative class was sworn in.
(That, parenthetically, will save the taxpayers a few bucks because Williams won’t qualify for a more generous legislative pension than the one awaiting the new class in Springfield, thanks to a modest pension reform bill that took effect on Jan. 1. But her decision will cost the 11th District politically because, instead of moving to the top of the seniority list of new legislators by starting in December, she will be near the bottom since she’s entering with all of the other newbies, and her last name begins with “W,” a letter near the end of the alphabet. Oh well.)
Meanwhile, back at the raunch—yes, I said raunch and not ranch—Williams’s decision not to be seated early meant the political bosses in the district—Fritchey, Cullerton and the other ward committeemen—had to find someone else to fill the seat for the one-week lame-duck session. So they recruited Kathy Moore, the wife of Tom Moore, a well-known Lincoln Park zoning lawyer—because Kathy had the time and the willingness to “serve.” And down I-55 she went. Admitting sheepishly at a party last week that “they tell me what (voting) button to push and I push it.” Democracy in action.
So when the tax bill passed, without a single vote to spare, our lawmaker-for-a-week was a major reason. She says she’s not happy about voting for a gargantuan tax increase but she doesn’t think that she, or the state, had any other choice. Even though, as of Sunday, she hadn’t seen a bill. Or a press release. Or a fact sheet. Or a list of cuts, accountability measures and streamlining to go along with the increase.
“I hope it works,” she said wistfully in a text message on Wednesday morning. Williams says, for the record, that she would’ve had a hard time supporting the tax bill in its present form.
In any event, Kathy Moore was back home in Chicago by Wednesday night after morphing into a regular resident following her week as a political pumpkin. Kind of like “Cinderella” in reverse. And she may not be the life of the cocktail parties in the neighborhood for awhile, at least among the well-healed wine-and-cheese folks who will have several-thousand fewer dollars in their pockets for each of the next four years.
As for Ann Williams, the newly elected House member, she assumed her duties as the new representative of the 11th district at noon on Wednesday. And my spies at her Springfield welcoming parties report there was no evidence of any dust, dirt or snow from the rock she’s been hiding under.
Don’t you just love the Illinois Way? And can’t you see why we love being civic watchdogs?"
Wednesday, January 5, 2011
CPSIA - CPSC Says "Ahhh, Don't Worry About It!"
What me worry?!
In a TV piece called "Mom Outraged Over Lead in Baby's Toy" (watch the video here), a Georgia mother found "an ominous warning" on a toy drum she purchased for her 16 month old from Toys R Us (one of the toughest retailers on legal compliance and quality control, btw). The label read: "Warning: contains lead. May be harmful if eaten or chewed. May generate dust containing lead."
Uh-oh.
And I was wondering why anyone would buy a drum for a 16 month old . . . .
Mom was not happy: "Even if it's just a little bit of lead, I think lead in anything for a child is just insane."
When consulted, the CPSC assured her that it didn't mean anything. It's all about a California law that requires labels for lead levels that have nothing to do with safety. Scott Wolfson, who can really turn a phrase, intoned: "We respect California law, but parents should know that the safety of their children is not necessarily at risk if they see that label."
This is so rich on so many levels.
First, the CPSC is prohibited from assessing risk under the CPSIA. How is it that their spokesman is allowed to assess risk? I thought Congress decides what's risky now. The CPSC can't be trusted, right? As usual, particularly when Mr. Wolfson is involved, the CPSC's position is whatever is best for THEM. To heck with you. For purposes of this story, they magically regained the ability to assess risk.
Let's review - as a matter of law, the CPSC's job is to enforce the standards. They are literally prohibited from considering whether compliant products pose a risk. They are just measurers now, the "cop on the beat", determining whether products are inside the circle or outside the circle but never whether the circle is in the right place. So how can they fashion a judgment that lesser levels of lead aren't risky? The best they can say is that Congress didn't apparently think those lead levels deserved attention.
I am thinking of Sargeant Schultz from "Hogan's Heroes" . . . .
Second, the CPSIA is loaded with superfluous labels. The philosophy of warning consumers through labels pasted over labels is central to the precautionary principle that drove this law. How Mr. Wolfson can advise consumers to ignore a warning label without blushing is beyond me.
I believe the reason they try this stuff is because they think we're so stupid that we won't notice. Or that we're so docile we won't say anything. In any event, it hardly matters because they sure aren't going to listen to us.
Third, this situation proves beyond a shadow of a doubt what I have been saying for three years - that lead labels are a tacit ban. I have long resisted lead labels on any of our products. [Please NOTE - this is only happens under technical application of these stupid rules (gotcha's), such as labels for rocks, light bulbs, coated electrical cords, etc., and only on educational products.] If you put a label like the Georgia label on your product, it will die and you will have to drop it. Plain and simple - listen to the Georgia Mom. She's normal and has some common sense - if the company is warning you about lead, don't ask any questions, just don't use the product. Why else would they be warning you? Duh.
A tacit ban.
So the Illinois law and the California law that require these labels are not only violations of Constitutional protection of interstate commerce, but they are also preempted by federal law. The States are not allowed to ban products that are permitted to be sold by Federal law - they are preempted from taking that step. When you put a label on a product that causes consumers to not buy the product, you destroy the economic viability of the product, thereby killing it. This is a tacit ban, a ban in as many words. It is illegal.
Scott Wolfson apparently doesn't see the problem. Consumers should know that this label isn't serious, he says. I assume he thinks consumers should know that the other labels they should know are serious. If they have any questions, perhaps they should call him. He knows-it-all.
Or maybe Moms everywhere should get better at reading Scott's mind. That's the ticket. Fuggedaboutit.
In a TV piece called "Mom Outraged Over Lead in Baby's Toy" (watch the video here), a Georgia mother found "an ominous warning" on a toy drum she purchased for her 16 month old from Toys R Us (one of the toughest retailers on legal compliance and quality control, btw). The label read: "Warning: contains lead. May be harmful if eaten or chewed. May generate dust containing lead."
Uh-oh.
And I was wondering why anyone would buy a drum for a 16 month old . . . .
Mom was not happy: "Even if it's just a little bit of lead, I think lead in anything for a child is just insane."
When consulted, the CPSC assured her that it didn't mean anything. It's all about a California law that requires labels for lead levels that have nothing to do with safety. Scott Wolfson, who can really turn a phrase, intoned: "We respect California law, but parents should know that the safety of their children is not necessarily at risk if they see that label."
This is so rich on so many levels.
First, the CPSC is prohibited from assessing risk under the CPSIA. How is it that their spokesman is allowed to assess risk? I thought Congress decides what's risky now. The CPSC can't be trusted, right? As usual, particularly when Mr. Wolfson is involved, the CPSC's position is whatever is best for THEM. To heck with you. For purposes of this story, they magically regained the ability to assess risk.
Let's review - as a matter of law, the CPSC's job is to enforce the standards. They are literally prohibited from considering whether compliant products pose a risk. They are just measurers now, the "cop on the beat", determining whether products are inside the circle or outside the circle but never whether the circle is in the right place. So how can they fashion a judgment that lesser levels of lead aren't risky? The best they can say is that Congress didn't apparently think those lead levels deserved attention.
I am thinking of Sargeant Schultz from "Hogan's Heroes" . . . .
Second, the CPSIA is loaded with superfluous labels. The philosophy of warning consumers through labels pasted over labels is central to the precautionary principle that drove this law. How Mr. Wolfson can advise consumers to ignore a warning label without blushing is beyond me.
I believe the reason they try this stuff is because they think we're so stupid that we won't notice. Or that we're so docile we won't say anything. In any event, it hardly matters because they sure aren't going to listen to us.
Third, this situation proves beyond a shadow of a doubt what I have been saying for three years - that lead labels are a tacit ban. I have long resisted lead labels on any of our products. [Please NOTE - this is only happens under technical application of these stupid rules (gotcha's), such as labels for rocks, light bulbs, coated electrical cords, etc., and only on educational products.] If you put a label like the Georgia label on your product, it will die and you will have to drop it. Plain and simple - listen to the Georgia Mom. She's normal and has some common sense - if the company is warning you about lead, don't ask any questions, just don't use the product. Why else would they be warning you? Duh.
A tacit ban.
So the Illinois law and the California law that require these labels are not only violations of Constitutional protection of interstate commerce, but they are also preempted by federal law. The States are not allowed to ban products that are permitted to be sold by Federal law - they are preempted from taking that step. When you put a label on a product that causes consumers to not buy the product, you destroy the economic viability of the product, thereby killing it. This is a tacit ban, a ban in as many words. It is illegal.
Scott Wolfson apparently doesn't see the problem. Consumers should know that this label isn't serious, he says. I assume he thinks consumers should know that the other labels they should know are serious. If they have any questions, perhaps they should call him. He knows-it-all.
Or maybe Moms everywhere should get better at reading Scott's mind. That's the ticket. Fuggedaboutit.
Wednesday, August 25, 2010
CPSIA - Illinois Politics in the Gutter
742 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are 69 days left until Election Day.
After two years of banging my head against the wall on the CPSIA, it has become clear that much of the problem is in Congressional leaders from two states, California (Waxman, Boxer, Feinstein) and Illinois (Durbin, Rush, Schakowsky). [I hope I'm not forgetting any other "worthies".] I live in Illinois. The fact that our state is part of this disaster is no surprise. I get to follow the local political goings-on in the paper and on the Internet. Of course, people talk, too. We sure know how to pick 'em in Illinois . . . .
I think it's well-known that I am not a big fan of Ms. Schakowsky for her cheerleading for the noxious CPSIA and her leadership of the gang that stymied any effort to fix that awful law and its regulatory by-products. And it's hard not to be utterly disgusted by her legislative agenda, which earned her the rank of NUMBER ONE SPENDER IN CONGRESS and which has been a job-killer of the first order. She provides many reasons to dislike her passionately . . . but did you also know that her husband is a FELON? As a lawyer, I have very little sympathy for felons. One never becomes a felon by accident. [As a matter of fact, the prospect of being accused of a felony under the CPSIA is one of my hottest "hot buttons" as I deeply resent that our government could make something that inappropriate possible under federal law.]
Yes, in fact, Schakowsky's husband is a crook. Robert Creamer was convicted of financial crimes in 2005 (check kiting and tax evasion, a $2.3 million fraud committed against nine financial institutions to fund his salary, among other things) while Schakowsky was a sitting member of Congress, served five months in the pokey for his felonies and then was placed under house arrest with his member of Congress spouse for 11 months. Perhaps you think this is some sort of Illinois sitcom or perhaps a new kind of reality show. Here is Creamer's jail release record, if you are curious.
Creamer's criminal record is absent from his bio, interestingly enough. Anyone shocked to learn that Creamer was an important advisor to our very own Governor Blagojevich, a fellow felon? Creamer has quite a business going as a political consultant - Democrats from all over the country clamor for his help. Hmmm.
And the Illinois sewer continues to spew to this very day. Mr. Creamer, who was a critical thought leader and trainer for the 2008 Obama campaign (Obama is another Illinoisan with a CPSIA taint), is now apparently part of Democrat Alexi Giannoulias' campaign for Senate against Mark Kirk. Here's a still of Alexi Giannoulias posing with Mr. Creamer:
Also conversing with Mssrs. Giannoulias and Creamer is lobbyist Larry Suffredin. Here's what Wikipedia says about his lobbying practice: "Suffredin is a registered lobbyist with Cook County, the City of Chicago, and the State of Illinois. Suffredin lobbyist clients include resort and casino company MGM Mirage, owners of the Grand Victoria Casino in Elgin, Illinois, and Penn National Gaming, owners of the Hollywood Casino, Aurora, Illinois, the Illinois Alliance of Competitive Telephone Companies, the Donors Forum of Chicago, the Illinois Arts Alliance, and Illinois Citizens for Handgun Control, the Chicago Bar Association, and Kankakee Regional Landfill LLC. He is also a registered lobbyist for Abbott Laboratories, Nursepower Services Corporation, and Quest Diagnostics."
I assume the three of them were discussing the weather. "Pretty sunny out today, Bob." "Larry, did you see that rain cloud as you drove in?" "Alexi, surely it won't rain on your parade!"
This still is from a Giannoulias campaign video pitching an endorsement by Jan Schakowsky. Perhaps there are a few dots to connect here. . . . Giannoulias chats with Creamer at the 1:45 point in the video, check it out yourself:
An Illinois Senatorial candidate hanging out with a felon who stole from banks? Hey, isn't that practically the very question that dogs Giannoulias in this campaign? How ironic! And then there's the issue of members of Congress who consort with thieves. This is even more ironic given the Dems' practice this year of viciously bashing banks and bank bailouts. Perhaps defrauding banks is okay, but keeping them afloat is not. Is there an odor in the room???
What integrity! How inspiring! Can't wait to vote . . . .
After two years of banging my head against the wall on the CPSIA, it has become clear that much of the problem is in Congressional leaders from two states, California (Waxman, Boxer, Feinstein) and Illinois (Durbin, Rush, Schakowsky). [I hope I'm not forgetting any other "worthies".] I live in Illinois. The fact that our state is part of this disaster is no surprise. I get to follow the local political goings-on in the paper and on the Internet. Of course, people talk, too. We sure know how to pick 'em in Illinois . . . .
I think it's well-known that I am not a big fan of Ms. Schakowsky for her cheerleading for the noxious CPSIA and her leadership of the gang that stymied any effort to fix that awful law and its regulatory by-products. And it's hard not to be utterly disgusted by her legislative agenda, which earned her the rank of NUMBER ONE SPENDER IN CONGRESS and which has been a job-killer of the first order. She provides many reasons to dislike her passionately . . . but did you also know that her husband is a FELON? As a lawyer, I have very little sympathy for felons. One never becomes a felon by accident. [As a matter of fact, the prospect of being accused of a felony under the CPSIA is one of my hottest "hot buttons" as I deeply resent that our government could make something that inappropriate possible under federal law.]
Yes, in fact, Schakowsky's husband is a crook. Robert Creamer was convicted of financial crimes in 2005 (check kiting and tax evasion, a $2.3 million fraud committed against nine financial institutions to fund his salary, among other things) while Schakowsky was a sitting member of Congress, served five months in the pokey for his felonies and then was placed under house arrest with his member of Congress spouse for 11 months. Perhaps you think this is some sort of Illinois sitcom or perhaps a new kind of reality show. Here is Creamer's jail release record, if you are curious.
Creamer's criminal record is absent from his bio, interestingly enough. Anyone shocked to learn that Creamer was an important advisor to our very own Governor Blagojevich, a fellow felon? Creamer has quite a business going as a political consultant - Democrats from all over the country clamor for his help. Hmmm.
And the Illinois sewer continues to spew to this very day. Mr. Creamer, who was a critical thought leader and trainer for the 2008 Obama campaign (Obama is another Illinoisan with a CPSIA taint), is now apparently part of Democrat Alexi Giannoulias' campaign for Senate against Mark Kirk. Here's a still of Alexi Giannoulias posing with Mr. Creamer:
Also conversing with Mssrs. Giannoulias and Creamer is lobbyist Larry Suffredin. Here's what Wikipedia says about his lobbying practice: "Suffredin is a registered lobbyist with Cook County, the City of Chicago, and the State of Illinois. Suffredin lobbyist clients include resort and casino company MGM Mirage, owners of the Grand Victoria Casino in Elgin, Illinois, and Penn National Gaming, owners of the Hollywood Casino, Aurora, Illinois, the Illinois Alliance of Competitive Telephone Companies, the Donors Forum of Chicago, the Illinois Arts Alliance, and Illinois Citizens for Handgun Control, the Chicago Bar Association, and Kankakee Regional Landfill LLC. He is also a registered lobbyist for Abbott Laboratories, Nursepower Services Corporation, and Quest Diagnostics."I assume the three of them were discussing the weather. "Pretty sunny out today, Bob." "Larry, did you see that rain cloud as you drove in?" "Alexi, surely it won't rain on your parade!"
This still is from a Giannoulias campaign video pitching an endorsement by Jan Schakowsky. Perhaps there are a few dots to connect here. . . . Giannoulias chats with Creamer at the 1:45 point in the video, check it out yourself:
An Illinois Senatorial candidate hanging out with a felon who stole from banks? Hey, isn't that practically the very question that dogs Giannoulias in this campaign? How ironic! And then there's the issue of members of Congress who consort with thieves. This is even more ironic given the Dems' practice this year of viciously bashing banks and bank bailouts. Perhaps defrauding banks is okay, but keeping them afloat is not. Is there an odor in the room???
What integrity! How inspiring! Can't wait to vote . . . .
Monday, July 19, 2010
GUEST BLOG - The Solution to Too Many Warning Labels....More Labels!
Rick has blogged several times about the new Illinois lead law (see here, here and here) and predicted that the resulting labeling requirements would result in only confusion for consumers.
In one blog, Rick stated "Consumers will not ignore these labels and will treat your product as though it were poisonous or radioactive."
We are letting Rick pick our Lotto numbers next week.
A faithful reader of this blog brought to our attention this article from the Channel 9 News website in Denver, Colorado.
The article, "Confusing warning tags on toys spark concerns for parents," (Did Rick write that headline?) reported that consumers are shocked, SHOCKED, by a tag on a small toy in a Babies R Us store that read "Warning: Contains Lead. May be harmful if eaten or chewed. May generate dust containing lead."
The article goes on to quote the consumer who tipped off the station of the "dangerous" stuffed animal stating "We couldn't believe our eyes when we read the removable paper label . . . I can't imagine anyone buying this product."
Is the toy toxic? Nope.
The story goes on to report that a Toys R Us statement to the TV station explains that the products with these tags "meet or exceed federally mandated requirements for children's products." and says the tag "is related to more stringent laws passed in Illinois and California. The Illinois law, for instance, requires a warning label if a material exceeds a limit of 40 ppm, in essence the amount of lead found naturally in the environment." (emphasis added)
The company spokesperson said "it would be too difficult for the company to maintain a separate inventory for those states."
"To comply with Illinois law, these labels have been placed on the required items that are carried in our stores in all states," the Toys R Us statement read.
Thanks, Illinois.
Don't worry readers, CPSC has a solution.
CPSC Spokesperson Scott Wolfson (who would be a wealthy man if he received $5 for every mention in this blog) says "even if a toy doesn't conform to California and Illinois' limits for lead, as long as a toy meets federal guidelines they are extremely safe. . . The agency is now considering adding new tags to all toys which meet federal standards, in hopes of relieving their fears."
That's right. The CPSC's solution to too many warning labels? More labels!
We found an Illinois license plate fitting for this situation:
Posted by the Staff of the Alliance for Children's Product Safety
In one blog, Rick stated "Consumers will not ignore these labels and will treat your product as though it were poisonous or radioactive."
We are letting Rick pick our Lotto numbers next week.
A faithful reader of this blog brought to our attention this article from the Channel 9 News website in Denver, Colorado.
The article, "Confusing warning tags on toys spark concerns for parents," (Did Rick write that headline?) reported that consumers are shocked, SHOCKED, by a tag on a small toy in a Babies R Us store that read "Warning: Contains Lead. May be harmful if eaten or chewed. May generate dust containing lead."
The article goes on to quote the consumer who tipped off the station of the "dangerous" stuffed animal stating "We couldn't believe our eyes when we read the removable paper label . . . I can't imagine anyone buying this product."
Is the toy toxic? Nope.
The story goes on to report that a Toys R Us statement to the TV station explains that the products with these tags "meet or exceed federally mandated requirements for children's products." and says the tag "is related to more stringent laws passed in Illinois and California. The Illinois law, for instance, requires a warning label if a material exceeds a limit of 40 ppm, in essence the amount of lead found naturally in the environment." (emphasis added)
The company spokesperson said "it would be too difficult for the company to maintain a separate inventory for those states."
"To comply with Illinois law, these labels have been placed on the required items that are carried in our stores in all states," the Toys R Us statement read.
Thanks, Illinois.
Don't worry readers, CPSC has a solution.
CPSC Spokesperson Scott Wolfson (who would be a wealthy man if he received $5 for every mention in this blog) says "even if a toy doesn't conform to California and Illinois' limits for lead, as long as a toy meets federal guidelines they are extremely safe. . . The agency is now considering adding new tags to all toys which meet federal standards, in hopes of relieving their fears."
That's right. The CPSC's solution to too many warning labels? More labels!
We found an Illinois license plate fitting for this situation:
Posted by the Staff of the Alliance for Children's Product Safety
Monday, June 7, 2010
CPSIA - The Madness Continues . . . .
The stress and strain of complying with the frustrating and destructive CPSIA hit a new low today when we were informed that a major customer had imposed their own new “safety” standard mandating a 40 ppm standard for lead in SUBSTRATE. This impossible-to-meet standard exceeds all legal standards considerably and is even more unreasonable than Illinois’ misguided lead labeling law applicable only to lead paint. No health or safety reasons were provided. This move was presumably an effort to keep things “simple” for this retailer. Not so simple for us. Will anyone care?
This is a result of the junk science feeding frenzy induced by the CPSIA. The CPSIA itself is divorced from science reasoning, taking an arbitrary and absurd stance against anything and everything with any lead in it. The health risks are utterly conjectural in substrate in the affected products and could never meet the "substantial hazard" standard, but scientific studies taken out of context provide handy justification of a fear of everything, paranoid approach to safety regulation. The loathsome penalties imposed by a perpetually angry CPSC have stoked a race to the bottom. Thus, a 40 ppm lead standard for substrate.
Common sense. Anyone remember what that is?
This is a result of the junk science feeding frenzy induced by the CPSIA. The CPSIA itself is divorced from science reasoning, taking an arbitrary and absurd stance against anything and everything with any lead in it. The health risks are utterly conjectural in substrate in the affected products and could never meet the "substantial hazard" standard, but scientific studies taken out of context provide handy justification of a fear of everything, paranoid approach to safety regulation. The loathsome penalties imposed by a perpetually angry CPSC have stoked a race to the bottom. Thus, a 40 ppm lead standard for substrate.
Common sense. Anyone remember what that is?
Tuesday, April 20, 2010
CPSIA - Illinois Finally Issues Its Lead Labeling Rules
At long last, Illinois has published its rulemaking under the Illinois Lead Poisoning Prevention Act. The relevant pages are 5568-5575. As you will see, true to their word, Illinois has clarified that the lead limitation pertaining to toys only affects paint.
It is still regrettable that Illinois felt the need to keep its standard for lead-in-paint below the federal standards, especially since there is no demonstrated difference in Illinois 40 ppm level and the federal standard of 90 ppm from a health standpoint. It is important to remember that background lead levels in the environment very often exceed the limit in the Illinois law, including famously in the Obama's vegetable garden at the White House.
Hopefully this law will cause minimal disruption or random loss of capital for those companies that elect to stay active in children's products in Illinois.
It is still regrettable that Illinois felt the need to keep its standard for lead-in-paint below the federal standards, especially since there is no demonstrated difference in Illinois 40 ppm level and the federal standard of 90 ppm from a health standpoint. It is important to remember that background lead levels in the environment very often exceed the limit in the Illinois law, including famously in the Obama's vegetable garden at the White House.
Hopefully this law will cause minimal disruption or random loss of capital for those companies that elect to stay active in children's products in Illinois.
Wednesday, July 8, 2009
CPSIA - Do-Gooders Playing a Role in Train Crashes?
Consumer Groups, media and panicky politicians led a feeding frenzy last year over toy recalls that resulted in remarkably broad legislation restricting the presence of lead in children's products, yes our old friend the CPSIA. Of course, the determined "do-gooders" in the consumer group corner have asserted that there is "no safe level" for lead and thus, it makes "sense" to eliminate it totally from children's products (and the world at large, if possible). Remember, you can't be too safe . . . . A leader of this charge was a staff person at the American Academy of Pediatrics who presented unchallenged statistics in September 2007 to a House Subcommittee. With the lilly-white AAP backing of this notion, Congress swung into action and outlawed lead effectively from all children's products. Sounds good, right? Well, as with most manias, the "unintended consequences" have been terrible. This has been well-documented in this space.
Interestingly, I found an article recently that suggested that elimination of lead from circuitry (solder), courtesy of our friends in EU bureaucracy, may have played a role in the recent terrible Washington, D.C. Metro train crash. [Lest we forget, it is worth noting that the motivation behind the EU's elimination of lead from solder was protection of the environment, not a fear over direct human poisoning, the basis of the current U.S. mania.] This article points out something that the amateur scientist fear mongers may not have known, which is that lead plays a useful role in solder, and in its absence . . . more "unintended consequences". In this case, the consequence is something called "tin whiskers", a phenomenon created by "untamed" tin in solder. Tin behaves differently in the absence of lead, and will grow "whiskers" that create electrical shorts. The article suggests that this explains the intermittent electrical failures of the crash detection system on the Washington Metro. Other deadly accidents have been linked to tin whiskers. Precautionary, indeed.
Among the many things that disgust me about the lead mania is the illusion (delusion) that controlling lead-in-substrate in children's products will have any material impact on exposure to lead. In fact, it's just a way to put blinders on. By publicly and notoriously addressing the "lead problem" - problem solved!! This is absurd, of course, but has only encouraged the maniacs. Take, for example, the recent hubbub over the Obama's "lead-contaminated" vegetable garden. Incredibly, the lead levels detected in the White House garden (presumably by people with too much time on their hands) was 93 ppm. Our dear friends at the AAP assert that background lead levels in dirt is 40 ppm. This was the rationale behind the recent Illinois lead labeling legislation profiled in this space. As the Obama article makes clear, the controversy over lead in dirt is just politics, not science, and is WAY out of proportion to both the health threat and the presence of lead all around us. Dr. Kimberly Gray, Director of the Environmental Sciences Program at Northwestern University comments: "It’s inflammatory. 93 ppm is well below background lead for an urban environment. It’s what you’d expect just from atmospheric deposition." The article continues: "Atmospheric deposition is lead particles that fall out of the sky, from things like auto emissions." You mean there's lead in the air, too - oh, no!
The do-gooders have infinite justifications for their bans of lead in children's products, their current obsession, but (other than economic devastation) what has actually been accomplished for the American public by their handiwork? Only the illusion of "better safety". The legislation markets the idea that elimination of insoluble lead from substrate makes a marginal, incremental difference to health, as though it were the only (or principal) source of lead in our bodies. This flawed logic also underlies the dangerous Proposition 65 in California. The labels required by Proposition 65 sounds sensible, intended to advise consumers of the presence of "toxins" in their products (even if legally there) so they can decide whether to expose themselves or their families to the "deadly" substances. Who could object to that? Well . . . the selective presence of these labels gives false comfort to consumers who may believe that the labels highlight the ONLY places where the noted risk occurs. The implicit reasoning goes like this . . . why would the government require lead labels on lip gloss if the government knows that this risk is miniscule compared to MANY other sources of lead in daily life? Aren't they requiring labels on EVERYTHING with lead? And, if so (the government wouldn't let us down!), isn't this buying decision critical, a highlighted choice that might make the difference between good health and some form of miserable, painful, lingering death?! That's the implication, however erroneous.
I do not accept that this is the only way to run a sensible society. Canada has attempted to truncate our fancy new safety system, by tailoring it to a narrow and specific class of products or situations. That seems like a good place to start. It's time for all concerned to acknowledge that the "perfect legislative process" had a faulty outcome. Real leaders are prepared to admit error and to do the right thing for their troops. Congress???
Interestingly, I found an article recently that suggested that elimination of lead from circuitry (solder), courtesy of our friends in EU bureaucracy, may have played a role in the recent terrible Washington, D.C. Metro train crash. [Lest we forget, it is worth noting that the motivation behind the EU's elimination of lead from solder was protection of the environment, not a fear over direct human poisoning, the basis of the current U.S. mania.] This article points out something that the amateur scientist fear mongers may not have known, which is that lead plays a useful role in solder, and in its absence . . . more "unintended consequences". In this case, the consequence is something called "tin whiskers", a phenomenon created by "untamed" tin in solder. Tin behaves differently in the absence of lead, and will grow "whiskers" that create electrical shorts. The article suggests that this explains the intermittent electrical failures of the crash detection system on the Washington Metro. Other deadly accidents have been linked to tin whiskers. Precautionary, indeed.
Among the many things that disgust me about the lead mania is the illusion (delusion) that controlling lead-in-substrate in children's products will have any material impact on exposure to lead. In fact, it's just a way to put blinders on. By publicly and notoriously addressing the "lead problem" - problem solved!! This is absurd, of course, but has only encouraged the maniacs. Take, for example, the recent hubbub over the Obama's "lead-contaminated" vegetable garden. Incredibly, the lead levels detected in the White House garden (presumably by people with too much time on their hands) was 93 ppm. Our dear friends at the AAP assert that background lead levels in dirt is 40 ppm. This was the rationale behind the recent Illinois lead labeling legislation profiled in this space. As the Obama article makes clear, the controversy over lead in dirt is just politics, not science, and is WAY out of proportion to both the health threat and the presence of lead all around us. Dr. Kimberly Gray, Director of the Environmental Sciences Program at Northwestern University comments: "It’s inflammatory. 93 ppm is well below background lead for an urban environment. It’s what you’d expect just from atmospheric deposition." The article continues: "Atmospheric deposition is lead particles that fall out of the sky, from things like auto emissions." You mean there's lead in the air, too - oh, no!
The do-gooders have infinite justifications for their bans of lead in children's products, their current obsession, but (other than economic devastation) what has actually been accomplished for the American public by their handiwork? Only the illusion of "better safety". The legislation markets the idea that elimination of insoluble lead from substrate makes a marginal, incremental difference to health, as though it were the only (or principal) source of lead in our bodies. This flawed logic also underlies the dangerous Proposition 65 in California. The labels required by Proposition 65 sounds sensible, intended to advise consumers of the presence of "toxins" in their products (even if legally there) so they can decide whether to expose themselves or their families to the "deadly" substances. Who could object to that? Well . . . the selective presence of these labels gives false comfort to consumers who may believe that the labels highlight the ONLY places where the noted risk occurs. The implicit reasoning goes like this . . . why would the government require lead labels on lip gloss if the government knows that this risk is miniscule compared to MANY other sources of lead in daily life? Aren't they requiring labels on EVERYTHING with lead? And, if so (the government wouldn't let us down!), isn't this buying decision critical, a highlighted choice that might make the difference between good health and some form of miserable, painful, lingering death?! That's the implication, however erroneous.
I do not accept that this is the only way to run a sensible society. Canada has attempted to truncate our fancy new safety system, by tailoring it to a narrow and specific class of products or situations. That seems like a good place to start. It's time for all concerned to acknowledge that the "perfect legislative process" had a faulty outcome. Real leaders are prepared to admit error and to do the right thing for their troops. Congress???
Wednesday, July 1, 2009
CPSIA - Lead Labels, Who Cares?
Some laws, like California's Proposition 65 and the infamous Illinois Lead Poisoning Protection Law (see my previous post) include labeling provisions to "inform the public" of the presence of various unwanted substances, even trace amounts. After all, it's the public's "right to know" that motivates these consumer protection laws. Sounds good, right? Well, if you are on the receiving end of this good work, it feels like business death. For instance, in the Illinois law (Section 6(b)), labeling is required if lead-in-paint on a toy exceeds 40 ppm. This is intentionally lower than the federal lead-in-paint standards of 90 ppm (as of August 14, 2009, that is) since Illinois is competing to win in the Race to the Bottom as the national leader in "being safe". The Illinois standard is also equivalent to national average of lead levels in DIRT. Yes, dirt (see the report of the American Academy of Pediatrics). Thus, the Illinois law does not make lead-in-paint levels above trace background lead levels illegal but does require that consumers be informed of these "elevated" lead levels in a helpful product label.
So, if you are the lucky manufacturer who has to label his/her products for lead levels that conform to the excessively precautionary federal standards in order to satisfy Illinois or California laws, will you survive the experience to tell the tale? I have argued in testimony to an Illinois House subcommittee that the answer is "no". Consumers will not ignore these labels and will treat your product as though it were poisonous or radioactive. This would not be good for business - to say the least. I, in fact, told the Attorney General's office in Illinois that this might prompt Illinois companies to relocate across the border into saner States like Wisconsin or Iowa.
My vivid imagination, right? Can you imagine the voices I must hear in my head?? Well, perhaps not. Read about the story of lip gloss at Target in Indiana where a recall of a legal, safe product was incited by a panicked consumer reading a Proposition 65 label in Indiana. You can't say you haven't heard it before. Feeling safer already?
Hey Congress - what if some of my other predictions come true, too? Are you ready to stand up before America and tell them that these terrible problems were your handiwork? Is that the Obama Revolution you want to foment?
So, if you are the lucky manufacturer who has to label his/her products for lead levels that conform to the excessively precautionary federal standards in order to satisfy Illinois or California laws, will you survive the experience to tell the tale? I have argued in testimony to an Illinois House subcommittee that the answer is "no". Consumers will not ignore these labels and will treat your product as though it were poisonous or radioactive. This would not be good for business - to say the least. I, in fact, told the Attorney General's office in Illinois that this might prompt Illinois companies to relocate across the border into saner States like Wisconsin or Iowa.
My vivid imagination, right? Can you imagine the voices I must hear in my head?? Well, perhaps not. Read about the story of lip gloss at Target in Indiana where a recall of a legal, safe product was incited by a panicked consumer reading a Proposition 65 label in Indiana. You can't say you haven't heard it before. Feeling safer already?
Hey Congress - what if some of my other predictions come true, too? Are you ready to stand up before America and tell them that these terrible problems were your handiwork? Is that the Obama Revolution you want to foment?
Wednesday, April 22, 2009
CPSIA - The Delusion of a "Perfect" Process
In early January, I had a conversation with Robin Appleberry (of Henry Waxman's office) and Christian Fjeld (of Bobby Rush's office), two of the principal architects of the CPSIA train wreck. When I asked about how to move forward with modifying the law to fix its (many) flaws, I was told in no uncertain terms that the law would not be reopened. Why? I was assured that the law was designed (carefully) to give the CPSC the power to fix all the problems itself. As I have documented time and again, this is simply not true. In the "Just Say No" defense of the CPSIA advocates, repetition of this "big lie" mantra is part of a strategy to turn fiction into "fact".
In any event, I was told that a principal reason to NOT revisit the law is that it had been "litigated" (their word for the process) so thoroughly. In other words, as a consequence of its "perfect" process (a series of public hearings, deliberations, conference negotiations, Congressional votes, Presidential signature), Congress had ergo delivered the "perfect" law. Perfect laws don't need to be revisited. Uh-huh. I had occasion for this trip down Memory Lane because I recently heard that Ms. Appleberry was trotting out this old chestnut again in recent meetings.
Please don't misunderstand me - it was a nifty process. They called the witnesses they wanted to hear from (namely those whose testimony supported the conclusion they had reached before the hearings), asked the questions whose answers were predetermined, and then conducted "due diligence" by asking a limited number of representatives of industry a limited number of questions behind closed doors. This undocumented "due diligence" was taken at face value and applied as fact to justify the "reasonableness" of the details of the new law. The data they gathered was overwhelming, completely flawed but unopposed.
I remember those days of the "perfect" process when any attempt to reach the players and to contribute to this process was rebuffed. We "evil" businessmen (in my case, a toymaker, horrors!) were not trustworthy and our opinions of the proposed legislative schemes were apparently perceived as self-interested and designed to permit "unsafe" products to be sold. We were labelled implicitly as moneygrubbers and were excluded from their "perfect" process. Naturally, this helped with message control by marginalizing anyone who might disagree with the design of the CPSIA.
The science justifying this law was never properly tested. As my recent blogpost indicates, the data provided by the American Academy of Pediatrics almost singlehandedly proves how absurd the contention is that many of the products regulated by the CPSIA present any detectible health risk to anyone. When presented with this data, I am told the CPSIA honchos are again saying that the science would not be revisited. What a "perfect" process!
In Illinois, we have learned a few things about "perfect" legal processes, notably death sentences. Death sentences are not handed out lightly in Illinois (or anywhere) - there are many legal hurdles to jump over, with detailed findings of fact and other protections of individual rights. Yet, in January 2003, Governor George Ryan made history when he commuted the sentences of all inmates sentenced to death in Illinois because of his concerns over the flaws in the conviction and sentencing process. Ryan was a "perfect" process skeptic.
George Ryan's concern over the "perfect" Illinois process used to hand out death sentences derived from the famous Rolando Cruz case. In 1985, a man named Rolando Cruz was convicted of the notorious rape and murder of 10 year old Jeanine Nicarico and sentenced to death. In a series of legal challenges over many years (ultimately opposed by then State Attorney General, now Senator, Roland Burris), Mr. Cruz's conviction was overturned after a sheriff's lieutenant admitted he had lied under oath and DNA evidence exonerated Cruz. In the wake of this terrible injustice, Governor Ryan initiated a moratorium on death sentences and ultimately issued a mass commutation of all Illinois death sentences. Mr. Ryan's doubts were well-founded.
Had the architects of the CPSIA been our Illinois Governor, the death row would still be stocked with inmates. In their world view, a "thorough" process, well "litigated", need never be revisited, like the one that almost killed Rolando Cruz for a crime he never committed or the case of Anthony Porter whose execution was stayed with two days to go - only to be found innocent later with evidence provided by Northwestern University undergraduate journalism students. George Ryan's stand on death sentences made me proud as an Illinoisan and as an American. Beware of anyone who defends a result by pointing to their process - sometimes it pays to check your work.
I love a perfect process, I really do. But this law is not perfect. The evidence is overwhelming. It's time that the politicians propping up this defective law - and encouraging the CPSC to break the new law to appease vocal constituents - admit their error and do the right thing by amending the law. It's their duty, what they were elected to do. Come on, guys - do your job.
In any event, I was told that a principal reason to NOT revisit the law is that it had been "litigated" (their word for the process) so thoroughly. In other words, as a consequence of its "perfect" process (a series of public hearings, deliberations, conference negotiations, Congressional votes, Presidential signature), Congress had ergo delivered the "perfect" law. Perfect laws don't need to be revisited. Uh-huh. I had occasion for this trip down Memory Lane because I recently heard that Ms. Appleberry was trotting out this old chestnut again in recent meetings.
Please don't misunderstand me - it was a nifty process. They called the witnesses they wanted to hear from (namely those whose testimony supported the conclusion they had reached before the hearings), asked the questions whose answers were predetermined, and then conducted "due diligence" by asking a limited number of representatives of industry a limited number of questions behind closed doors. This undocumented "due diligence" was taken at face value and applied as fact to justify the "reasonableness" of the details of the new law. The data they gathered was overwhelming, completely flawed but unopposed.
I remember those days of the "perfect" process when any attempt to reach the players and to contribute to this process was rebuffed. We "evil" businessmen (in my case, a toymaker, horrors!) were not trustworthy and our opinions of the proposed legislative schemes were apparently perceived as self-interested and designed to permit "unsafe" products to be sold. We were labelled implicitly as moneygrubbers and were excluded from their "perfect" process. Naturally, this helped with message control by marginalizing anyone who might disagree with the design of the CPSIA.
The science justifying this law was never properly tested. As my recent blogpost indicates, the data provided by the American Academy of Pediatrics almost singlehandedly proves how absurd the contention is that many of the products regulated by the CPSIA present any detectible health risk to anyone. When presented with this data, I am told the CPSIA honchos are again saying that the science would not be revisited. What a "perfect" process!
In Illinois, we have learned a few things about "perfect" legal processes, notably death sentences. Death sentences are not handed out lightly in Illinois (or anywhere) - there are many legal hurdles to jump over, with detailed findings of fact and other protections of individual rights. Yet, in January 2003, Governor George Ryan made history when he commuted the sentences of all inmates sentenced to death in Illinois because of his concerns over the flaws in the conviction and sentencing process. Ryan was a "perfect" process skeptic.
George Ryan's concern over the "perfect" Illinois process used to hand out death sentences derived from the famous Rolando Cruz case. In 1985, a man named Rolando Cruz was convicted of the notorious rape and murder of 10 year old Jeanine Nicarico and sentenced to death. In a series of legal challenges over many years (ultimately opposed by then State Attorney General, now Senator, Roland Burris), Mr. Cruz's conviction was overturned after a sheriff's lieutenant admitted he had lied under oath and DNA evidence exonerated Cruz. In the wake of this terrible injustice, Governor Ryan initiated a moratorium on death sentences and ultimately issued a mass commutation of all Illinois death sentences. Mr. Ryan's doubts were well-founded.
Had the architects of the CPSIA been our Illinois Governor, the death row would still be stocked with inmates. In their world view, a "thorough" process, well "litigated", need never be revisited, like the one that almost killed Rolando Cruz for a crime he never committed or the case of Anthony Porter whose execution was stayed with two days to go - only to be found innocent later with evidence provided by Northwestern University undergraduate journalism students. George Ryan's stand on death sentences made me proud as an Illinoisan and as an American. Beware of anyone who defends a result by pointing to their process - sometimes it pays to check your work.
I love a perfect process, I really do. But this law is not perfect. The evidence is overwhelming. It's time that the politicians propping up this defective law - and encouraging the CPSC to break the new law to appease vocal constituents - admit their error and do the right thing by amending the law. It's their duty, what they were elected to do. Come on, guys - do your job.
Saturday, April 18, 2009
CPSIA - The Significance of the ATV Exemption Decision
As you may know by now, the CPSC as anticipated denied the ATV Exemption request on Friday on the grounds that the law does not permit exemption of ATVs from the noxious CPSIA. On this point, both Commissioners agree. The Commissioners voted 2-0 to extend a retroactive and permanent enforcement ban on ATVs made on or before May 1, 2011, thus permitting the continued manufacture and sale of child-sized ATVs for at least two more years, and directed their staff to prepare an official enforcement ban for publication in the Federal Register. What does this all signify?
1. The Continuing Issuance of Stays is an Acknowledgement of the Flaws in the CPSIA. This is essentially the third stay of the CPSIA, and perhaps not the last. [Look for a stay of the tracking labels requirement as chaos is again building in the marketplace.] Having stayed the testing and certification requirements for a year, and deferred enforcement of the law against certain products and materials previously, the Commissioners have again put the law on hold. Why would "landmark" legislation need to be stayed again and again, and may need to be stayed some more? Let me suggest an obvious reason - the law makes no sense and the CPSC cannot make it make sense. Not only does the CPSC recognize that the law is toxic to commerce, which is not the desired purpose of well-crafted safety legislation, but it is also turning many safe and valued products into endangered species. As the Commissioners note, the law is so restrictive that a stay is the only means they have available to avoid the most terrible consequences of this overreaching law.
PLEASE NOTE the absence of howls of protests from Congressional "leaders" and consumer groups over the gutting of the retroactive feature of the CPSIA for the benefit of the ATV'rs. I thought these luminaries told us the standards were intended by Congress to be retroactive and that (evil) American industry had enough time to get the old product off the shelf. If so, why aren't our Mother Protectors screaming about the terrible CPSC Commission selectively letting the ATV industry off the hook??? That darned Nancy Nord again . . . oh yeah, it was Thomas Moore, too. Perhaps the screamers' principles aren't quite so rock hard, and retroactive effect of the lead and phthalate standards weren't actually essential to preserve our way of life after all. Hmmm. Senators???
What does that say about the law itself?
2. The CPSIA Puts the CPSC in Gridlock (not Nancy Nord). The Commissioners continue to struggle with the straitjacket imposed by Congress. In the case of the ATV Exemption request, the staff indicated that the law compelled them to deny the application despite absurdly low lead intake from ATVs (far below daily lead intake from food, water and breathing, ah but details like this are the hobgoblin of the small mind . . .). Likewise, BOTH Commissioners came to the same conclusion. Nancy Nord: "It is clear that the law does not give the Commission the flexibility to grant an exclusion for the petitioners' products." Thomas Moore: "Given the extremely restrictive language of the law, the only avenue I can see is for the Commission to establish an enforcement plan that follows, to the greatest extent possible, the Act's intention for future production. . . ." The Commissioners are stuck and make no bones about it.
Okay, so no exemptions are possible. [Senators, there's some "common sense" for you.] How about the future? Can manufacturers ever find a way to wriggle out of the ridiculous restrictions or will the entire Children's Products industry be slave to these inflexible restrictions going forward? Ummm, we're slaves. The enforcement stay proposed by the Commissioners after considerable delay to study their legal options states that the standard for relief in the future will be "technical feasibility". This sounds like a logical standard, something that reasonable people exercising "common sense" could administer capably, right? I don't know how to tell you this [Senators] but . . . no, not right.
The term "technological feasibility" is defined in Section 101(d) of the CPSIA specifically to tie the hands of the CPSC. Among other things, no consideration of economics is allowed. Notably, something is considered technologically feasible if "a product that complies with the limit is commercially available in the product category . . . or . . . alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit." In other words, if Rolex can do it, Timex MUST do it. Mr. Moore, whose enthusiasm for this law seems to approach the pathological, gloats: "The evidence considered is strictly limited to technological feasibility, not on the higher cost of a viable substitute. The guiding principle of this agency's determinations has to be the safety of the children . . . ." Notwithstanding the non sequitur of Mr. Moore's second sentence, his statement is a clear admission that the CPSC has no way to exercise that famous "common sense" recommended by Senator Pryor and his flock.
1. The Continuing Issuance of Stays is an Acknowledgement of the Flaws in the CPSIA. This is essentially the third stay of the CPSIA, and perhaps not the last. [Look for a stay of the tracking labels requirement as chaos is again building in the marketplace.] Having stayed the testing and certification requirements for a year, and deferred enforcement of the law against certain products and materials previously, the Commissioners have again put the law on hold. Why would "landmark" legislation need to be stayed again and again, and may need to be stayed some more? Let me suggest an obvious reason - the law makes no sense and the CPSC cannot make it make sense. Not only does the CPSC recognize that the law is toxic to commerce, which is not the desired purpose of well-crafted safety legislation, but it is also turning many safe and valued products into endangered species. As the Commissioners note, the law is so restrictive that a stay is the only means they have available to avoid the most terrible consequences of this overreaching law.
PLEASE NOTE the absence of howls of protests from Congressional "leaders" and consumer groups over the gutting of the retroactive feature of the CPSIA for the benefit of the ATV'rs. I thought these luminaries told us the standards were intended by Congress to be retroactive and that (evil) American industry had enough time to get the old product off the shelf. If so, why aren't our Mother Protectors screaming about the terrible CPSC Commission selectively letting the ATV industry off the hook??? That darned Nancy Nord again . . . oh yeah, it was Thomas Moore, too. Perhaps the screamers' principles aren't quite so rock hard, and retroactive effect of the lead and phthalate standards weren't actually essential to preserve our way of life after all. Hmmm. Senators???
What does that say about the law itself?
2. The CPSIA Puts the CPSC in Gridlock (not Nancy Nord). The Commissioners continue to struggle with the straitjacket imposed by Congress. In the case of the ATV Exemption request, the staff indicated that the law compelled them to deny the application despite absurdly low lead intake from ATVs (far below daily lead intake from food, water and breathing, ah but details like this are the hobgoblin of the small mind . . .). Likewise, BOTH Commissioners came to the same conclusion. Nancy Nord: "It is clear that the law does not give the Commission the flexibility to grant an exclusion for the petitioners' products." Thomas Moore: "Given the extremely restrictive language of the law, the only avenue I can see is for the Commission to establish an enforcement plan that follows, to the greatest extent possible, the Act's intention for future production. . . ." The Commissioners are stuck and make no bones about it.
Okay, so no exemptions are possible. [Senators, there's some "common sense" for you.] How about the future? Can manufacturers ever find a way to wriggle out of the ridiculous restrictions or will the entire Children's Products industry be slave to these inflexible restrictions going forward? Ummm, we're slaves. The enforcement stay proposed by the Commissioners after considerable delay to study their legal options states that the standard for relief in the future will be "technical feasibility". This sounds like a logical standard, something that reasonable people exercising "common sense" could administer capably, right? I don't know how to tell you this [Senators] but . . . no, not right.
The term "technological feasibility" is defined in Section 101(d) of the CPSIA specifically to tie the hands of the CPSC. Among other things, no consideration of economics is allowed. Notably, something is considered technologically feasible if "a product that complies with the limit is commercially available in the product category . . . or . . . alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit." In other words, if Rolex can do it, Timex MUST do it. Mr. Moore, whose enthusiasm for this law seems to approach the pathological, gloats: "The evidence considered is strictly limited to technological feasibility, not on the higher cost of a viable substitute. The guiding principle of this agency's determinations has to be the safety of the children . . . ." Notwithstanding the non sequitur of Mr. Moore's second sentence, his statement is a clear admission that the CPSC has no way to exercise that famous "common sense" recommended by Senator Pryor and his flock.
3. The Notion that a New Chairman Would Impact Outcomes Has Been Exposed as Nonsense. This is the 24th consecutive CPSIA decision of the two person CPSC Commission which has been decided 2-0. There are NO examples of 1-1 votes on the CPSIA. The two Commissioners read the law EXACTLY the same. My heavens, if the Commissioners under this kind of pressure read the law as similarly as they do, is it POSSIBLE that they read the law correctly and are working in concert, exercising similar sound if constrained judgment and in fact, are doing their jobs responsibly? The new Chairman is supposed to clean this up by instituting a new policy at the CPSC to . . . what? Break the law? The demand for a new Chairman to "resolve" the issues under the CPSIA insults the public's intelligence. The Members of Congress and consumer groups that stand in line to bash Nancy Nord and blame her for these decisions and the direction of the agency shame themselves with their mischaracterization of the facts.
4. Fairness and Equity in Safety Regulation or Application of Rules across Industry Lines is Another Casualty of the CPSIA. I am happy for the ATV'rs that they got a break on the unfair retroactive application of the lead standards to their products and inventory. Our suffering need not be their suffering. It is worth noting, however, that they are not alone in their need for relief from the retroactive impact of the law or its harsh disruption of their marketplace. The rippling impact of this law on many industry groups has been well-documented. At a minimum, I simply cannot understand how the CPSC could justify giving a PERMANENT pass on retroactive effect for ATVs through May 1, 2011, but not do the same for all other industries affected by this law. This is shocking, irresponsible, oblivious, unfair and unkind. Had Congress or the CPSC actually given a two-year pass to everyone on retroactivity (preferably several months ago), the transition time alone would have cured many ills, including the need to sort out how to administer the new rules. Likewise, a big chunk of the problem for resellers of used or donated goods would be resolved or at least tabled for further study. Instead, justice will apparently be meted out slowly and unevenly, and will be governed by economics. You can safely anticipate that there will be justice for the rich only. Only rich industries or companies will be able to afford to mount the multi-million dollar effort to appeal for these exemptions. Crafters, for instance, will be sacrificed unless a Sugar Daddy saves them. Don't count on it.
5. The Future of Safety Regulation is Bureaucracy and Complexity without Benefit. The decision in the ATV case makes it clear that unless the law is changed, regulation of safety in children's products will be by exception only. Having mandated that regulating by risk assessment is no longer permitted, Congress' great new scheme is to make everything illegal unless the Commission decides it isn't illegal. It will be years, if not forever, before a coherent, settled law emerges. In the meantime, we will live in the grey zone.
As I have written in the past, there will be significant costs to a regulatory system based on exceptions. For one thing, it will be exceptionally difficult to clearly understand the rules if you must first find and understand all the exceptions. While this might sound achievable, it is not. Neither the law nor its exceptions are clear or entirely black-and-white. Case law or a body of other regulatory decisions will slowly and expensively clarify the law - provided you can find, understand and utilize those decisions. And. . . the body of decisions may not (likely will not) set out the answers applicable to you. It is typically clear as mud.
What will life under this kind of legal system look like?
- You will need to hire counsel. You will not feel comfortable making the legal analysis yourself. You will also become accustomed to weighing legal risks in the normal, everyday conduct of your business.
- Easy things will become hard. There will be a need for vast paperwork that does not contribute to the development of your business or the satisfaction of your customers.
- Your costs will rise to cover the bureaucracy. This will not make your products more valuable or raise the price you will receive for them in the market.
- Increasingly, your focus will be on paper, not building your business. Regulatory paper will become the medium of trade and owing to the blizzard of paper will lose its meaning. Your business processes will feel Dickensian. [Ah consumer groups, thank you so much for all you are doing to make America great!]
- You will learn to fear the CPSC and State regulators in your bones for the randomness and pettiness of their rule administration. Rules, NOT common sense, will dominate in a world of forbidden risk assessment, and random seizure of your profits (through fines and technically-driven recalls) will become commonplace. If this sounds apocalyptic, talk to anyone who has dealt with Customs. Get used to it.
6. Small Business is the CPSIA's Sacrificial Lamb. Who survives in a world defined by the ATV decision? This decision makes clear that a serious and expensive legal campaign is required to get permission to sell known safe products that give off about as much lead as four cups of water from your kitchen tap. [You know, the water you feed to your children and grandchildren, and drink yourself.] This is unaffordable and well-beyond the capabilities of 99% of all regulated companies and is thus a closed door (effectively) for small business. We have seen a recent letter by Senator Durbin's staff practically clucking at the nobility of sacrificing small business to the need for pre-market testing. As an Illinois resident, I find this indescribably infuriating. I understand the importance of small business to the marketplace and to local communities. I work at a small business and fear what will happen to us if this law is not gutted quickly. If we really must accommodate these rules, our business will become unrecognizable. That would be a very sad day for me, for our associates, for our marketplace and for our valued customers.
7. The CPSC Has Been Neutered as a Regulator. Ms. Nord sums it up in her April 17 letter: "I hope the state attorneys general will follow our lead in [the enforcement ban on ATVs.]" I hope so, too. That being said, in an orderly legal system, there is one policymaker, one decision-maker. The U.S. Supreme Court doesn't close all of its decisions by saying "We sure hope the Supreme Courts of California, Arizona and the other 48 States will follow our lead on this one." In our business, we say "Hope is not a strategy." Uh-oh.
The CPSC knows it has been cuckolded by the law since it is now subject to oversight by 50 SAGs. If you get yourself a nice two-year enforcement stay from the CPSC, are you going to take a chance to continue to sell your products when Lisa Madigan (SAG-IL) or Edmund Brown (SAG-CA) or others might choose to read the law differently than the CPSC? Does the Federal stay actually mean ANYTHING? According to my 15-year-old daughter, who has more common sense than at least 28 Senators I can name, the answer is NO. And, yes, these SAGs are not above telling the CPSC that they read the CPSIA wrong (see my recent blogpost on this topic). There is no longer a law of the land.
Final Thoughts. With the ATV decision in the books, we now must wait for the enforcement stay to be written up and published. Don't expect any surprises as the Commissioners have published their expectations already (again, one list from the 2-0 Commission vote). Will other industries raise their voices in protest? Questionable, in my opinion. If the past few months has not been enough to get people over their (irrational and misplaced) animal fears, I don't know how the current situation will add much motivation. There aren't enough motivated and persistent protestors out there, and frankly, it's understandable. The economy's still a wreck so everyone needs sales, not new hobbies. Advantage, lead fear mongers.
Time will tell. I hope some of you will answer the call.
Rick
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