CPSIA - Do Accidents Happen?

Accidents happen. It's an old saying.

Once upon a time acts of fate were no one’s fault and we each bore the risk individually. Today, things seem different – when bad things happen, the search begins for someone to blame. The media and politicians feed this trend in hysterical tones (they profit by doing so). Individual responsibility is passé. In the case of children’s products today, blame is often laid at the feet of the product or its manufacturer by the CPSC. In some cases, the fault is clear (the hazard is “substantial”); in other cases, it’s not nearly as clear. In this article, I am only interested in those more ambiguous cases where there is an element of fate or other factors outside the control of the manufacturer. Should we be satisfied with how the CPSC draws the line?

CPSC as Allocator

The CPSC’s assignment of responsibility for injuries (in the form of recalls) is an inherently “legal” process. Our laws allocate risk and responsibility in society in the form of rights. About 75 years ago, legal theorists developed a field of inquiry known as “law and economics” which held that legal systems incorporate economic principles which ensure efficient allocation of resources and promote economic activity. “Rights” are essentially factors of production in economic terms. Ronald Coase of the University of Chicago Law School won the Nobel Prize in Economics in 1991 for his seminal work on law and economics over the preceding 50+ years. Notably, Obama regulations “czar” Cass Sunstein is an ex-University of Chicago Law School law professor, as is President Obama himself.  Sunstein is closely associated with the study of law and economics.

The issues confronting the CPSC over injuries to children are not emotional in nature at all. They are actually purely economic issues because the CPSC is a market regulator. It is an objective fact that injuries to children or other consumers are a cost we bear in exchange for the benefits of economic activity (availability of innovative manufactured products, the provision of jobs, etc.). Naturally, as a community we want to bear as few such costs as is efficient, again to promote growth, hence a societal interest in reducing injuries. The interest in reducing injuries is economic, however; we are not indifferent to cost and judge them in light of corresponding benefits. For instance, this explains why you do not wear a crash helmet on the way to work despite your awareness that fatal auto accidents happen every day. The costs outweigh the benefits.

As a regulator, the agency brokers costs among a large group of parties. Consumer costs related to injury (including emotional loss and lost income, among other things) are weighed against manufacturer and market costs (recall costs, damage to brands, decreased growth, lost jobs, etc.). Whether the CPSC does the math properly or not, their decisions allocate resources by directing that one party incur costs to protect other parties from incurring costs. These decisions are purely economic even if stated in emotional terms. It is therefore clear that CPSC regulators have the capacity to promote economic growth or stifle it.

Is the Goal “No Injuries” Ever?

The CPSC has a legal responsibility to differentiate between a product hazard that causes accidents and accidents caused by the hand of fate. Congress limited the authority of the agency to regulate only those product hazards deemed “substantial” (a term of art under the CPSA and FHSA). As stated here many times previously, I believe the CPSC under current leadership regularly exceeds its legislative authority in this regard. The CPSC acts as though its role is to move society toward a Utopian ideal in which children are never injured or die prematurely. While I certainly don’t endorse injuries to children, the Utopian ideal of injury-free childhoods is illusory. In fact, an injury-free childhood could only be achieved at a very high cost. If the CPSC attaches an almost infinite value to preventing injuries, their allocation decisions will always constitute a transfer (a tax) and cause economic inefficiency (depress economic activity).

This over-appraisal of the cost and consequence of childhood injury is illustrated by recent remarks of Chairman Inez Tenenbaum about a recall of one million pool drain covers. Ms. Tenenbaum appears to justify the recall on the possibility of injury despite media reports confirming that no deaths had occurred since 2009:

"I want to make it clear that this recall announcement does not mean that one million drain covers will need to be replaced or repaired. The recalled covers were marked with the wrong flow rating . . . . Now for those public pools and spas that need their covers replaced or fixed, I have an obligation to advise that those facilities be closed at this time. They should reopen as soon as the work is completed that addresses the recall and brings the facility into compliance with the law. I know this is a very difficult message for many communities to hear so close to Memorial Day weekend, but we cannot risk a child becoming entrapped in a recalled drain cover." [Emphasis added]

This unstated policy attaching infinite value to childhood injury is much more than a strict liability standard because the CPSC only acts after an assessment of fault (rather than simply assigning responsibility). Isn’t the agency saying that the actions or inactions of manufacturers cause accidents?

Recent Recalls Allocate Uncontrollable Costs to Manufacturers

Consider some recent recalls for perspective:

a. Big Lots recalls bunk beds recalled after a three-year-old child died when caught under a futon.
b. Maclaren recalls one million strollers sold over 11 years because of more than a dozen fingertip amputations caused by a hinge.
c. Mattel recalls more than 7,000,000 children’s trikes sold over 14 years because of genital injuries to ten young girls jumping on the trike.

While it may be hard to look past these sometimes grisly childhood injuries, each of these cases calls into question whether the injuries were really the fault of the manufacturer. It’s not worth defending the product designs – let’s concede that in retrospect the products could have been better designed. Parental supervision appears to be an issue in each case. Manufacturers are typically unwilling to resist CPSC recalls by blaming consumers for injuries incurred using its products. That route is very risky and may in fact be more costly than going along with the CPSC’s dictates. As a result, the record in these cases is usually very one-sided – the CPSC has the first and last word on the subject, often on TV. Why would anyone stand up for these companies in public? There’s no incentive to do so; after all, the costs are paid by only one party, and that party isn’t talking.

There is a fundamental error in routinely blaming manufacturers for accidents or fate. It is widely accepted that laws operate efficiently when they allocate responsibility for risk to the party in the best position to address the risk. Manufacturers can efficiently bear many such costs – but not all. For instance, product safety is best assigned to manufacturers rather than consumers. This is fairly obvious – manufacturers know their own products better than consumers do and are best able to take steps to keep products safe at the lowest possible cost (most efficient). This is the reason why the common law tort system assigns product liability costs to manufacturers.

So who is in the best position to control costs associated with accidents or fate? Risks associated with acts of fate are difficult to control.  In fact, many foreseeable risks leading to childhood injuries are completely outside the control of manufacturers:

1. Fate
2. Failures of adult supervision
3. Product abuse or misuse
4. Mental deficiencies or mental illness (e.g., pica)
5. Risks well-known to the user (e.g., knives are sharp).

I would advance that good adult supervision is the lowest cost way to prevent accidents with children’s products. There are significant limitations to what a manufacturer can achieve on behalf of consumers who don’t adequately supervise their children. Of course, drawing the line is a big issue here. But can’t an argument be made that adult supervision of the toddlers using the Mattel trike could have prevented foreseeable injuries from jumping on the trike? That a parent must carefully supervise the location of a child’s hands before closing a stroller? This is a simple point – manufacturers cannot control these factors from their offices or warehouses. The cost for a manufacturer to do so would be excessive.

Some people might argue that assigning blame for matters of fate to manufacturers of consumer products is a neat way to efficiently spread cost among the community. Why not make the manufacturer pay the uncontrollable cost of fate relating to their products, and let them pass the costs along to consumers in the form of higher prices? Manufacturers can be converted into involuntary insurers by public policy, risk intermediaries for events of misfortune. The appeal is irresistible; after all, it doesn’t cost tax dollars to pay for these losses if we force responsibility on manufacturers. Of course, if you are a careful consumer, you might resent paying more to subsidize free-riding consumers who don't take appropriate precautions.  But money aside, doesn’t it reflect a hardening of our society if if we ignore heart tugs when kids are injured? Is this heartless . . . or sensible? Is the CPSC doing the American public a favor by increasingly pushing responsibility for uncontrollable risks to manufacturers?

The Important Role of Economic Efficiency in Laws Governing Children’s Products

I believe bad things do sometimes happen to good people. What is the economic effect of assigning these costs to manufacturers by default? Unfortunately, this invariable result is not economically efficient and will have the effect of a tax on the children’s market. In other words, the economic incentive to participate in markets will shrivel as manufacturer returns on investment decline because of legal risks (costs) they cannot control. This is basic stuff, folks – the reduced economic incentive causes market participants to withdraw, just as high taxes cause people to stop taking risks (trading).

Ronald Coase addressed this subject in two articles that led to his Nobel Prize. In a 1937 paper on the nature of the firm, Coase articulated what became known as the Coase Theorem which holds that if trade in an externality is possible (in this case, childhood injuries) and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights. Translated into English and applied to the facts here, Coase theorized that it would not matter which party was responsible to pay the costs of an injury (victim or tortfeasor) if there was no cost to bargaining between the parties. This of course is not the case in the real world. Coase returned to the subject in a 1960 article entitled “The Problem of Social Cost” and explored the role of regulations in achieving economic efficiency when economic activity creates social costs. This eminently readable article is a foundation stone of modern legal theory.

Considering the social costs of human activity (such as pollution or injuries from the use of children’s products), Coase concluded that efficient allocation of resources would be achieved regardless of allocation of rights relating to social costs (responsibility to pay those costs) provided that trading can be conducted without transaction costs. In other words, in an efficient market, economic factors (resources) will always be put to their highest and best use through allocation of resources and bargaining. Through bargaining in an efficient market, the party with the most productive use of economic factors will ultimately possess the resources, thus ensuring compensation for social costs regardless of who has been assigned legal rights.

Coase cites numerous examples (including torts) in making this point. Coase notes the symmetry of these disputes in his analysis. When cattle overrun crops causing economic losses, there would be no damage without the cattle, and likewise no damage without the crops! Causation is not black-and-white to an economist interested in efficient outcomes. As he notes, a smoothly operating pricing system ensures that “the fall in the value of production due to the harmful effects would be a cost for both parties.”

Nevertheless, Coase recognized that there ARE transaction costs in the real world (e.g., legal expenses, bargaining holdouts, etc.). These costs of altering and recombining rights allocated by the legal system can interfere with the ability to bargain and thus prevent the efficient allocation of resources in the market. He argued therefore that regulations are justified to the extent they allocate rights to the most efficient risk-bearer. Regulations can supersede market transactions by imposing the most efficient outcome. This is presumably the underpinning of President Obama’s call for more federal regulation. According to him, this will be good for us.  Coase might demur, noting that it all depends on the facts as we shall see below.

Coase was realistic in his assessment of the inherent dangers of regulation: “But the governmental machine is not itself costless. It can, in fact, on occasion be extremely costly. Furthermore, there is no reason to suppose that the restrictive and zoning regulations, made by a fallible administration subject to political pressures and operating without any competitive check, will necessarily always be those which increase the efficiency with which the economic system operates. Furthermore, such general regulations which must apply to a wide variety of cases will be enforced in some cases in which they are clearly inappropriate. . . . It is my belief that economists, and policy-makers generally, have tended to over-estimate the advantages that come from government regulation.” Coase’s solution: perform a cost-benefit analysis to make sure that regulations increase economic output (the all-in costs must be less than the all-in benefits when reduced to dollars).

We encounter situations regularly in which the party causing a legal nuisance does not bear the consequential costs. For instance, a home remodeler does not have to pay compensation to neighbors for noise and debris that may adversely affect them. He may feel a social obligation to give them freshly-baked cookies but is under no legal obligation to do so. This is one of many legalized nuisances. Why is this the legal rule? The allocation of rights takes into account that as a society, we want to encourage investment and capital improvements. The small cost of dealing with these inconveniences is considered a cost we all should bear in exchange for the benefits received from the economic activity. This rule does not apply to exceptional cases of nuisance where the costs outweigh the benefits. Not every instance of damage is remediable under our legal system for good reason.

Coase cites a fascinating real world example of this rule carried to a surprising extreme: under traditional English law, railroads are protected from liability for fires caused by sparks from their engines. Coase devotes considerable ink to prove that this legal rule creates an efficient allocation of resources (a positive effect for society) notwithstanding that there are “winners” and “losers”. This result would be very difficult to achieve through bargaining. Clearly a railroad would have a very difficult time working out a deal with every landowner along its lines as a precondition to laying down track.

Importantly, Coase points out that the opposite rule (where the railroad must pay for the fires its engines cause) does much more than just transfer liability. It also shifts incentives to everyone’s detriment. A farmer along the track now can gamble with the railroad’s money – he can get a market price from market buyers if he can harvest his crops or from the railroad if there is a fire. The farmer’s return is thus guaranteed, the incentive to take care is removed, and he will be rewarded for planting crops likely to be burned. This alternative rule’s transfer of costs to the railroad will simultaneously reduce the potential reward for constructing tracks and likely result in fewer train lines, reducing the broadly-distributed economic benefits that come with the expansion of the rail system. In other words, shifting liability in this case makes everyone along the train line poorer.

Coase notes that “nuisances” are not always against our interest: “[Pigou] is wrong when he describes these actions as ‘anti-social’. They may or may not be. It is necessary to weigh the harm against the good that will result. NOTHING COULD BE MORE ‘ANTI-SOCIAL’ THAN TO OPPOSE ANY ACTION WHICH CAUSES ANY HARM TO ANYONE.” [Emphasis added] CPSC, are you listening?

Placing the cost for nuisances on the producers’ shoulders may be well-intentioned but it is not necessarily the right result because it does not provide any incentive to consumers to take steps to prevent injury. “A tax system which was confined to a tax on the producer for damage caused would tend to lead to unduly high costs being incurred for the prevention of damage.”  The CPSC’s tendency to blame products via recalls and bans is the equivalent of a tax in this case. The “unduly high costs” leads to a reduction or suspension of economic activity. We can observe this in the children’s market over the past three years – the agency and Congress have both received considerable testimony on this topic (and seemingly ignored it). Coase won the Nobel Prize for pointing out that regulators often neglect to look at the full economic picture and thus fail to achieve optimal social results.

It goes without saying that the regulators may nevertheless achieve optimal newspaper headlines.

Conclusion

Why is it inefficient to invariably push costs to manufacturers for injuries associated with children’s products? As Prof. Coase notes, in a raucous marketplace, transaction costs can distort the allocation of resources. In this case, the prospect of liability and uncontrollable losses are a high transaction cost that affects the efficient allocation of resources by trade. Coase posits that a cost-benefit analysis must be performed to make sure that efficiency is achieved. The rule for such analyses is quite clear – the all-in cost of the regulation must be less than the all-in economic benefits achieved.

The best way to understand the formula in this case is to look at all marginal children’s recalls as a class. Let’s agree that there actually are some “substantial” product hazards out there and exclude them from our analysis.  [Manufacturers are in the best position to evaluate and prevent "substantial" hazards on behalf of consumers.]  We must also assess all the money spent as a result of CPSC action as a group. It does not matter who spends the money – we want to tote up all the costs and lay them off against all the benefits. The benefits are easy to calculate – there is an economic value to a life and also to injuries. This type of analysis is not only common, it is a requirement of federal law (as a result of Coase’s work outlined above). The government has tables of these values. Likewise, the costs are pretty easy to tote up: out of pocket costs for the recall, replacement of inventory, damage to reputation and brand, legal and regulatory costs, lost jobs, reduced investment, etc.

In the case of accidents or other uncontrollable factors leading to injury, the CPSC’s calculus is defective. It is quite telling that the regulators are not interested in my point that no victims have been identified. Lead-in-substrate victims – NONE. Phthalates victims – NONE. The ledger on the benefits side is undocumented, vague and untested, but the regulators' indifference suggests that they place an almost infinite value on injury or even the possibility of injury. On the cost side, the regulator also seems to largely ignore the impact on markets. As noted by Coase, the regulators are not subject to competitive pressures so they can easily overlook these costs. The math does not add up, and as a result, their decisions inevitably will choke the market. The CPSC acts as though not subject to the laws of economics.

The legislative fix for this misguided regulatory effort is clear – mandate economic analyses as a justification for any CPSC regulation. It is also necessary to restore (actually, to mandate the use of) risk assessment by the CPSC. Risk is all about cost allocation and cost management. By removing the ability to assess risk, Congress essentially removed the wiring necessary for the CPSC to make an intelligent assessment of the economics of their decisions. While the CPSIA was clearly written and passed into law in anger, enough time has passed to expect cooler heads to prevail. Congress, it’s time to act!

CPSIA - AAP Publicity Campaign Tries to Block CPSIA Amendment With Half-Truths and Worse

The notorious American Academy of Pediatrics, a political organization masquerading as a scientific organization, is mounting a furious effort to stop Congress from amending its baby, the misconceived and defective CPSIA.  Consistent with its previous output, the current campaign is filled with half-truths, misleading statements and innuendo.  Facts and science take a back seat.

Here is their first blast email - with my replies noted.  I will post more of their pap as it arrives.


As the Energy and Commerce Committee considers issues related to the safety of children's products, the American Academy of Pediatrics is pleased to provide background information about lead and its effect on child health. For more information, please contact Cindy Pellegrini (cpellegrini@aap.org) or Kristen Mizzi (kmizzi@aap.org) at the American Academy of Pediatrics at 202/347-8600.

Lead: Frequently Asked Questions

Lead is a soft, heavy and malleable metal that occurs naturally in trace amounts throughout the environment. Due to its abundance and easy workability, it has been used for thousands of years in plumbing, production of glass and crystal, and the manufacture of a wide range of consumer products. Following are some common questions about lead and its impact on children’s health.

What are the effects of lead exposure on children’s health?

Lead is well-established as a potent neurotoxin and a particular threat to the developing brain of the fetus, infant, and young child, with documented negative effects on behavior and permanent loss of IQ points. Lead causes permanent, irreversible brain damage. Even at very low levels, lead is known to cause loss of IQ and intellectual function. Children with elevated lead are more likely to have problems with attention deficit and reading disabilities, and to fail to graduate from high school. Investigators have identified associations between lead exposure and increased aggression, commission of crime and antisocial or delinquent behaviors. At high levels, lead exposure can be lethal.

@@@@RW - Lead is a known neurotoxin, yes, but exposure to lead does NOT erase IQ points inevitably or permanently. Common experience indicates this, and so does science. Here, the AAP is emphasizing that lead CAN do this, not that it WILL do so as a result of each exposure under all circumstances. The AAP cannot prove that lead ALWAYS has this effect nor can they link lead poisoning to the regulatory issue currently before Congress - namely, lead-in-substrate.  Lead-in-paint is NOT at issue here.  Elevated lead levels have NEVER been linked to lead-in-substrate - NEVER EVER ANYWHERE. Here the AAP is IMPLYING that lead can do this via lead-in-substrate, and relying on fear of the unknown (and a general societal ignorance of science) to achieve their political goal. Lead exposure from house paint, leaded gasoline and industrial pollution are the only sources of lead poisoning addressed or cited by the EPA or CDC.

Notably and shamefully, the AAP ignores or distorts its own scientific evidence in its venomous public relations campaign against the CPSIA amendment.  As you will see from their later press releases, the AAP cites the following article: Chen A, Dietrich KN, Ware JH, Radcliffe J, Rogan WJ. IQ and blood lead from 2 to 7 years of age: are the effects in older children the residual of high blood lead concentrations in 2-year-olds? Environ Health Perspect. 2005;113(5):597-601.  They do not provide a link, but I have it for you here.   In this article, the AAP's assertion that lead inevitably erases IQ points is exposed as conjectural, not a universal truth.  The Abstract of the article makes it clear that no declarative statement linking lead-in-substrate to loss of IQ points can be made other than that it is theoretically possible:

“Increases in peak blood lead concentrations, which occur at 18–30 months of age in the United States, are thought to result in lower IQ scores at 4–6 years of age, when IQ becomes stable and measurable. Data from a prospective study conducted in Boston suggested that blood lead concentrations at 2 years of age were more predictive of cognitive deficits in older children than were later blood lead concentrations or blood lead concentrations measured concurrently with IQ. Therefore, cross-sectional associations between blood lead and IQ in school-age children have been widely interpreted as the residual effects of higher blood lead concentrations at an earlier age or the tendency of less intelligent children to ingest more leaded dust or paint chips, rather than as a causal relationship in older children. [Ed. Note - In other words, the lower IQs found in children may be due to the fact that it may effectively be a self-selecting group.  Hmmm, interesting finding.] Here we analyze data from a clinical trial in which children were treated for elevated blood lead concentrations (20–44 μg/dL) at about 2 years of age and followed until 7 years of age with serial IQ tests and measurements of blood lead. We found that cross-sectional associations increased in strength as the children became older, whereas the relation between baseline blood lead and IQ attenuated. Peak blood lead level thus does not fully account for the observed association in older children between their lower blood lead concentrations and IQ. The effect of concurrent blood level on IQ may therefore be greater than currently believed.”  [Emphasis added]

The study notes later:  "In neither analysis did we see evidence in the overall group or in the placebo group that blood lead at 2 years of age determined IQ at 7 years of age. . . . Thus, although it is attractive to look at change in IQ by change in blood lead when considering the effect of an intervention, modeling those changes simultaneously is complex and can produce results that are difficult to interpret." [Emphasis added] In other settings, this might be labeled an ADMISSION.  Don't expect any such thing from the AAP.

I am sure the AAP never expected anyone to actually read their footnotes . . . .

What happens to lead in the human body?

The human body treats lead like calcium. Once ingested, lead is absorbed into the bloodstream and travels throughout the body, including across the blood-brain barrier. Lead is bioaccumulative; a percentage of absorbed lead may be stored in the bones, where it is bound tightly and may be released over the course of many years. A portion of lead will also be excreted from the body. The amount of lead absorbed, excreted or stored in the bone may depend on a number of variables.

@@@@RW - This is a critical point, and again, the AAP relies on innuendo and fear to sell an implication as an accepted fact. Common experience, even among children with elevated lead levels, indicates that it is the persistence of high blood lead levels that put children at material risk of lead poisoning and IQ loss. Here's another quote from the above article CITED by the AAP:  "Among children with both prior and concurrent blood lead concentrations below the corresponding medians as the reference group, those with prior blood lead concentrations at or above median but concurrent blood lead concentrations below the median did not have a decrease in school-age IQ score. In contrast, children with concurrent blood lead concentrations at or above the median had roughly similar IQ decreases, irrespective of their prior blood lead concentration."  [Emphasis added]

In other words, studies show that children with high blood lead levels that are later reduced to the normal range do NOT have reduced IQ levels.  HOWEVER, if the high blood lead levels are allowed to persist in school age children, lower IQ levels can be anticipated.  Who are these kids with high blood lead levels at school age?  That begs MANY questions. Don't expect the AAP to address them.

While it is undeniable that some lead accumulates in some form in the body, the real question is how much and what is the lasting impact of that lead. On that question, the AAP is silent and certainly makes no effort to carefully consider and translate its own cited studies. Taking the opposing position to the AAP is not the same thing as touting lead as a health food. Lead is dangerous - the question is how is it dangerous and in what forms.  In this case, we are dealing with lead-in-substrate; it would be helpful to only present data relevant to that topic.

Are some children more vulnerable to lead and its effects?

Yes, but it may be difficult to identify an individual child’s risk. Lead absorption is known to vary based on factors like a child’s age and nutritional status. At least one gene has been identified that appears to raise a child’s risk. Scientists are still working to identify sensitive windows of development where lead exposure may be particularly damaging.

@@@@RW - For the sake of argument, let's assume this is unambiguously correct - kids vary in their susceptibility to lead poisoning. Some are more susceptible, some are less.  [The AAP provides no data on this point here.] Then consider how many children are currently living on Earth (more than 2 billion). And then consider the effect of mortality rates and "aging out" on the total population of children in the regulated age group over a period of decades.

If kids fall along a spectrum of susceptibility to lead poisoning and therefore some are very sensitive to it, and taking into account the MANY billions of children in the regulated age group worldwide over the past 50 years, WHY aren't there any documented cases of lead poisoning from lead-in-substrate anywhere at any time under any living conditions or otherwise?  Four Members of Congress asked consumer group representatives this question at the April 7th hearing - and didn't get an answer.  It's a good question. The absence of victims suggests that the range of susceptibility is not as great as the AAP wants you to believe (as a result of its innuendo and implications).  It also suggests (proves?) that lead-in-substrate is not a health hazard in children's products.

How does lead enter the body?

Lead can be ingested or inhaled. Children may swallow paint chips, small parts, or other items that contain lead. In addition, lead can be released from products when they are mouthed, sucked, or licked. Lead may be found in dust and soil, and is present in measurable quantities in our air. Lead cannot be absorbed through the skin, but it can be ingested if it gets on a child’s hands and he or she then puts their hands in their mouth.

@@@@@RW - A mixture of undeniable facts and misleading innuendo. The AAP mixes up known and serious sources of bio-available soluble lead (paint, dust and dirt) and immaterial and unproven sources pf insoluble lead (substrates). Their narrative is designed to manipulate you into reaching the unsupported conclusion that it's all the same by providing only half the story. If the AAP were restricted to talking JUST about lead-in-substrate, this paragraph might not be as powerful or fear-inducing. This is the basic error in the original CPSIA panic - lead-in-paint was equated with lead-in-substrate by reactive people like Dick Durbin. At that point, all was lost.

Does it matter how lead gets into the body?

No. Once lead enters the human body, its behavior is consistent.

@@@@RW - This is patently UNTRUE.  Bio-available lead, namely soluble lead that can be absorbed into the bloodstream, has a very different effect than lead bound into substrate. Lead-in-substrate has never been linked to health problems but soluble lead (lead-in-paint, lead-in-dirt from leaded gasoline, lead-in-air from industrial pollution) has a clear linkage.  This misstatement is either carelessness by the AAP or a flat out effort to mislead.  Draw your own conclusion.

Will the size of a product, or the concentration of lead in it, have an effect on how much lead is absorbed?

Very small items can have high lead content, such as paint chips or dust. Trace amounts of lead, enough to cause measurable brain damage, are invisible to the naked eye. Exposure to higher concentrations of lead will, however, more quickly lead to higher blood lead levels in children.

@@@@RW - Again, the AAP uses lead-in-paint and dust to make a point in a question about lead-in-substrate. This is irrelevant and misleading.   They want you to believe it's all one-and-the-same.  The final sentence is also unsupported. A very high concentration of lead in hard plastic will NOT lead more "quickly" to higher blood levels than a lower concentration of SOLUBLE LEAD in another form (say, dust or lead-in-paint). This is plain baloney and is not supported by scientific findings or common experience. The AAP should be embarrassed.

What’s considered a high blood lead level?

Blood lead level is measured in micrograms per deciliter (mcg/dL). In general, research currently indicates that 1 IQ point is lost every time a child’s blood lead level rises 1 mcg/dL at levels in the range of 3 to 10 mcg/dL. Above a level of 10 mcg/dL, IQ loss occurs somewhat more slowly, but other health consequences may appear, such as interference with iron metabolism. The Centers for Disease Control and Prevention recommends that the source of lead exposure be investigated for any child with a blood lead level of 10 mcg/dL or higher.

@@@@RW - The AAP does not correlate actual data and science with their declarative statements and misleading remarks. Consider their claim that "[in] general, research currently indicates that 1 IQ point is lost every time a child’s blood lead level rises 1 mcg/dL at levels in the range of 3 to 10 mcg/dL" with the above-referenced scientific study cited by the AAP.  The AAP's statement over-promises by a wide margin. Their clear implication is that high blood lead levels are like an IQ ratchet wrench but the literature speaks more carefully and notes many problems with reaching black-and-white conclusions.  This may be why you did not seem to lose too many IQ points fastening lead fishing lures with your teeth as a kid.  Someone once left a comment in my blog that they must have lost thousands of IQ points from lead over the years. This is what they meant.

I urge you to be suspicious of the assertions of pseudo-scientists who don't back up their big claims.  If the claims are true, then there should be no reason not to trade in data.  Hey, AAP, where are all the victims?  Can you hear me yet???

What are current average blood lead levels in the United States?

The removal of lead from gasoline and paint in the 1970s resulted in a precipitous drop in child blood lead levels. Between 1976 and 1980, the average blood lead level for children age 1 to 5 years was 14.9 mcg/dL and blood lead levels over 40 mcg/dL were not uncommon. Today, the average blood lead level for children age 1 to 5 years is 1.5 mcg/dL (CDC NHANES, 2007-8). However, about one percent of children still have blood lead levels 10 mcg/dL or higher.

@@@@RW - This is the point Rep. Bono-Mack made at the February hearing. The last sentence is meant to scare Congress into believing that we do not know how children today come to suffer high blood lead levels - leaving the dark impression that it may be the fault of children's products. We do know the answer to this question, however - the EPA and CDC tell us that the causal agents are house paint, the consequences of leaded gasoline use and industrial pollution. It's certainly NOT lead-in-substrate. If it were, there might be at least ONE victim they could trot out. Those victims don't exist.

What is the treatment for elevated blood lead levels?

There is no treatment available for low to moderate blood lead levels. At levels of 45 mcg/dL and higher, physicians may recommend chelation, which involves administering a drug that binds to lead in the bloodstream. Chelation is not, however, effective at lower blood lead levels, and it carries risks of its own. Chelation does not reverse the damage done by lead to the developing brain.

@@@@RW - Interesting but irrelevant. This law is about lead-in-substrate. The AAP is not talking about a problem caused by lead-in-substrate here, so it's completely irrelevant to the matter at hand.  It sounds creepy, however, so I can understand why they felt it necessary to mention it.

What is a safe level of lead?

Scientists have not been able to identify a safe level of lead in the human body. Research shows that lead causes harm down to very low levels, below which the science remains unclear.

@@@@RW - Whether there is or is not a safe level for lead is not relevant here. What is relevant is whether lead-in-substrate can harm children. The AAP has never proven it, just asserted it. There is no evidence that lead-in-substrate can harm children in any material or detectable way. Until the consumer groups can offer up something more persuasive than their usual declarative statements, they should be kept out of the room.

For more information, please contact Cindy Pellegrini (cpellegrini@aap.org) or Kristen Mizzi (kmizzi@aap.org), at the American Academy of Pediatrics, 202/347-8600.

CPSIA - The CPSIA Testing "Dilemma"

As the House considers how to move a CPSIA Amendment forward, the issue of third party testing looms large.  Why?

That's a really good question. 

You may recall reports that FOUR Members of Congress asked consumer advocates for a list of "victims" of lead-in-substrate at the April 7th hearing.  No names were offered nor were they promised.  This makes perfect sense to the consumer advocates - after all, lead harms "silently" and consequently, it's okay for them to assert that there are victims without being able to prove it.  You can call that "Consumer Group Accountability".  Nice work if you can get it.  So I wonder - if a consumer advocate hears voices in his/her head, do the voices' deranged instructions need to go in the law, too?  It seems to me that if a consumer advocate perceives something, we must accept that it's real, no questions asked.  I assume the answer is yes these days.

Notwithstanding the "gravity" of Rachel Weintraub's assurances, the assertion of invisible lead victims flies in the face of ordinary experience, not to mention logic.  Let's posit that lead harms silently and MOST victims would go undetected.  [I am POSITING this, not conceding this.  I can't buy the assertion that NO victim would ever be detectible - even the advocates don't take that ridiculous position.]  It is indisputable that lead poisoning comes from exposure to lead.  You must come in physical contact with it AND it must make its way into your blood stream.  The mechanisms for lead entering a child's bloodstream are limited to two - breathe it in or take into your digestive system.  Breathing in lead-in-substrate has never been identified as a pathway, so it appears that the only mechanism possible for lead poisoning from lead-in-substrate is ingestion through contact.  You have to put it in your mouth.

Notably, kead poisoning is identified by elevated blood lead levels.  Hence another factor must be considered - namely the lead mass consumed in relation to the volume of blood circulating in a child.  In other words, one must consume XXX milligrams of lead per period to obtain and maintain dangerous blood levels depending on your age (body mass).  Clearly exposure is the critical factor here - the more lead you ingest, the higher your blood lead level would be (theoretically).  [To read a real scientist's explanation of this mechanism of lead poisoning in children and all the footnotes and asterisks to this simplified description, read Dr. Barbara Beck's testimony from the April 7th House hearing.]  Ignoring absorption rates and other provisos from the real world for purposes of this discussion, it all boils down to exposure, right?

Consider that there are 50+ million children in the United States in the regulated age range.  [The VAST majority of lead problems occur in children under five.]  Those 50+ million children span a wide spectrum of life styles, habits, living quarters, adult supervision and mental health.  They have literally TRILLIONS of annual interactions with products regulated by the CPSIA.  Based on my experience and observation, I will assert that some of them, a material but small number, interact obsessively with children's products and mouth them inappropriately.  These few children are extreme cases.  You read about kids like this all the time.  They are the kids who munch down 20 high strength magnets just for the heck of it.  Those kids would exhibit lead poisoning from lead-in-substrate if it were possible in the real world.

So where are these kids?  Can we find any of them?  Apparently not.  They are not in the medical literature.  They are not in the popular media.  They and their parents have not appeared as witnesses at CPSC hearings or on the Hill.  They are not known to the nutjob consumer advocates. They are not known to the ignorant Democratic staffers who staunchly defend this law. [Even though there are 2.2 billion children in the world, most of whom live in conditions ripe with the possibility of lead-in-substrate poisoning, they are not known anywhere else on Earth either, to my knowledge.]  They are not known to ANYONE ANYWHERE.

There's a simple reason for this - they don't exist. 

And if there are no known victims and not one extreme example can be found here or anywhere, I have to ask - why does my government insist that we test our products obsessively?  To what end?

What permits the federal government to blindly demand this of me?  Why isn't the government required to PROVE that there is a REASON that we must burn our money?  If this is all "politics", why aren't jobs, market vitality, well-stocked schools and lean government ALSO "political" considerations?  Is scamming the public about health risks to kids the only way Dems know how to buy votes?

And one more thing - if all of our products comply with the (ridiculous and unjustified) lead standards but we don't test, should I go to jail?  Is this law about safety . . . or about process?  Does Washington really think we're all morons?

You can answer that for yourself.

CPSIA - The Senate Wants to Save ATVs . . . What about the Rest of Us???

Yesterday Senators Klobuchar and Tester offered an amendment to S. 493, a moving bill to reauthorize the small business administration ("SBIR/STTR Reauthorization Act of 2011").  This amendment is intended to exempt ATVs, dirt bikes, motocross and snowmobiles ("All-terrain vehicles") from the lead restrictions of the CPSIA.  To my knowledge, this amendment has not been voted on yet.  The text of their amendment reads as follows:

SA 259. Ms. KLOBUCHAR (for herself and Mr. TESTER) submitted an amendment intended to be proposed by her to the bill S. 493, to reauthorize and improve the SBIR and STTR programs, and for other purposes; which was ordered to lie on the table; as follows:

On page 116, after line 24, add the following:

SEC. 504. EXEMPTION OF OFF-HIGHWAY VEHICLES FROM BAN ON LEAD IN CHILDREN'S PRODUCTS.

(a) Exemption.--Section 101(b) of the Consumer Product Safety Improvement Act of 2008 (15 U.S.C. 1278a(b)) is amended-- (1) by redesignating paragraph (5) as paragraph (6); and (2) by inserting after paragraph (4) the following:

(5) EXCEPTION FOR OFF-HIGHWAY VEHICLES.--

(A) IN GENERAL.--Subsection (a) shall not apply to an off-highway vehicle.
(B) OFF-HIGHWAY VEHICLE DEFINED.--For purposes of this section, the term `off-highway vehicle'-- (i) means any motorized vehicle--(I) that is manufactured primarily for use off of public streets, roads, and highways; (II) designed to travel on 2 or 4 wheels; and (III) having either -- (aa) a seat designed to be straddled by the operator and handlebars for steering control; or (bb) a nonstraddle seat, steering wheel, seat belts, and roll-over protective structure; and (ii) includes a snowmobile.

(b) Additional Amendment.--Such section is further amended in paragraph (1)(A) by striking ``any''.

This is pretty stunning, really.  Did you notice that they are "fixing" the CPSIA by making two changes (one surmises that they think these are the only needed fixes), exempting All-terrain Vehicles from the law, and ALSO knocking out the word "any" from the lead exemption process.  If their amendment were to become law, the CPSIA Section 101(b)(1)(A) lead exemption would read as follows:

"The Commission may, by regulation, exclude a specific product or material from the prohibition in subsection (a) if the Commission, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither— (A) result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children’s activities, and the aging of the product . . . ."

I must be stupid, but in this context, I don't think anything is achieved by deleting "any" (assuming "plain English" is the language of choice for legislative interpretation).  The word "any" is implied in "the absorption of lead into the human body", at least I think it is.  This is the kind of legislative change I am used to from the Dems in the last three years, a change that brings no relief whatsoever.  After all, they are plainly deaf.

Perhaps more interesting is why they chose to make these changes now.  I have long asserted that ATVs have no business being regulated under the CPSIA.  Klobuchar was a prime mover for the CPSIA but apparently found out later that her state of Minnesota is deeply affected by this awful law because of the ATV ban.  Oops!  Minnesota is home to several large manufacturers of these products.  Jobs, jobs, jobs are the key nowadays, especially if you are running for reelection.  Oh no, did I say that?  How cynical of me!  Tester is also running for reelection - last time, he won by by 3,662 votes.

There must be some reason why Klobuchar and Tester think legislation relieving these industries from the burden of regulation.  Since I know the Senators are ALL ABOUT safety, I can only conclude that they figured out that these products are already safe.  Aha.  I wonder how they made this determination.  Perhaps they took note of the fact that lead in these products has never injured any children EVER.  That fact suggests that it is wasteful to regulate the presence of lead in these products - it would not make anyone safer.  Even if there were one or two injuries, wouldn't the argument be the same?  After all, we are a country of 300 million, with 50 million-plus kids in the age range enveloped by the CPSIA.  A tiny handful of injuries over a decade of use by perhaps 75-80 million children passing through the age range would hardly justify the billions in expense and disruption caused by the CPSIA. Good thinking, Senators!

Have I ever mentioned that the CPSC cites one death and three unverified injuries from lead over an 11-year period from 1999-2010?  Hmmm.

If THAT'S the standard now, then I think Senators Klobuchar and Tester should expand their amendment to exempt ALL other products classes and components that have the same safety profile.  Rhinestones?  T-shirts and shoes?  Educational products?  Rocks and fossils?  Books?  Pens?  Musical instruments?  CDs and DVDs?  Steel and other metal parts? 

Isn't this proposed amendment just what we have always wanted - a concession by zealot Democrats that the law makes no sense and needs to be sharply revised?  If they are rational legislators (that's a big "if"), let them tell us WHY it makes sense to NOT regulate All-terrain Vehicles and STILL regulate everything else for lead in children's products.

Senators Klobuchar and Tester, you owe us an explanation!  This regulatory torture has gone on for three years, not in small part because of your unwillingness to do the right thing.  Now that you are sufficiently motivated to propose giving a pass to certain favored products and industries, you must tell the Electorate why this is GOOD LAW and why the rest of us deserve to stay in Purgatory.

'Fess up - we've had enough!

CPSIA - WSJ's 8th Editorial Against the CPSIA

Eight WSJ editorials on the same topic. Is it time to get Congress' hearing checked???


REVIEW & OUTLOOK
MARCH 11, 2011

Get the Lead Out, Sir
Nutty test standards give Obama a real chance to help business.

President Obama has been on a campaign to shake his antibusiness reputation, so a good place to start would be to revisit the Consumer Product Safety Improvement Act, a mess of a law that has put new burdens on small businesses.

In 2008, Congress passed the law in a rush to do something after a scare over lead in toys imported from China. Its problems were quickly apparent, sweeping products from books to bicycles into the dragnet for lead standards. But while businesses pleaded, Democrats stood behind it as a pinnacle of consumer protection while blaming the Consumer Product Safety Commission for any enforcement problems.

The CPSC has done what it can to allay the fiasco of unintended costs and disruptions for small businesses, including staying large portions of the law. But as Commissioner Nancy Nord told House Democrats last year, the language of the bill is drafted in such a way that fixing all the problems is impossible because the "exclusions and exemptions process is not workable."

Instead of being able to focus energy on products that present real risks to kids, the CPSC's staff has had to regulate products that pose no harm. The likelihood of a toddler swallowing an all-terrain vehicle, for instance, didn't stop that product from being swept into the maw.

The law also requires the CPSC to propose the parameters of a third-party lead testing regime, but the issue is so mired in complexity that the commission has yet to set those standards. Under the proposed version of this so-called "15 Month Rule," Learning Resources Chairman Rick Woldenberg has estimated that supplying multiple testing samples on each of his company's toys and products will cost his company some $15 million per year.

It gets worse. In August, the lead standard is set to go down to 100 parts per million from the current level of 300 parts per million. Like the earlier step down, the new standard is supposed to be retroactive when it goes into effect, meaning that it will apply to toys and children's products manufactured before that date, which were perfectly legal when they were made. All five CPSC commissioners have said they don't believe the new standards should be retroactive when they go into effect this summer.

At a hearing in the House Energy and Commerce Committee in February, California Democrat Henry Waxman defended the law as "necessary to protect kids and families across the country." We wonder how he figures that, since the incidence of lead poisoning from toys made by domestic manufacturers is nil.

Energy and Commerce Chairman Fred Upton and Subcommittee Chair Mary Bono-Mack have said they will soon introduce a bill that would finally end a regime that has clobbered small businesses with ill-conceived regulations. If Mr. Obama wants to help small business job creation, he could agree that the government doesn't need to mandate a lead testing protocol for every product known to man.

CPSIA - Consumer Group Testimony at CPSC 100 ppm Lead Standard Hearing 2-16-11

I have prepared some clips from the CPSC hearing on 100 ppm Lead Standard on February 16, 2011. I have not prepared comprehensive clips on every presentation. For instance, I omitted the testimony of the testing companies from the second panel (here's a hint - guess what they are ready and willing to do?). If you want to see video that I have not delivered to you on a silver platter, check out the CPSC video of the Morning Session (consumer groups and testing companies) and Afternoon Session (industry representatives, including my testimony).

There is a lot of interesting testimony not in my clips, in particular in the afternoon. Although I think I am giving you a lot of relevant information in the clips I prepared, you are always welcome to check my work. I was quite impressed by the other presenters in the afternoon session, and the vigorous and interesting discussion that followed, but anticipated that you would not likely spend 4-5 hours watching the entire thing. If that floats your boat, please enjoy the links above.

In this post, I am embedding several clips from the morning session where the consumer groups stated their "case". I hesitate to characterize the testimony as "tall tales" but watch for yourself and see what you think. I have come to believe that the consumer groups will say ANYTHING to prop up their beloved CPSIA. [Consider the laughable "consumer poll" prepared by the Consumers Union promoted by Henry Waxman on the eve of the House Hearings on February 17, 2011. CU shamed themselves with this pathetic effort to "win" the debate with garbage polling data.] This may include the remarkable hyperbole in the clips below. We can speculate among ourselves whether Don Mays really shakes with fear at the thought of his daughter playing a brass instrument (he says he would be "very concerned").

Likewise, does Dr. Dana Best believe the nonsense statistics she flung around last week, like the one about ingesting an object with 300 ppm lead costing a child four IQ points? Please, dear G-d, that statistic is absurd on its face. The assertion that children are losing four IQ points from swallowing objects with trace levels of lead is irresponsible and misleading at a minimum, and something much worse if done with understanding or intent. The spectacle of Ms. Best's testimony included calculations of the "cost" of 1 million injured children DESPITE the inability of any consumer group to produce the case history of a single child injured from lead-in-substrate in children's product EVER. [I replied to Dana Best in my testimony.]

We must hold Dana Best responsible for the words that came from her mouth. Interestingly, Dr. Best was the only nominal author of the seminal testimony on lead in the CPSIA debacle. According to her colleague Cindy Pelligrini, Dr. Best didn't write her 2007 Congressional testimony (Pelligrini told me in a phone interview in 2008 that she wrote it for Dr. Best to deliver). Did Dr. Best write last week's testimony or was it another Cindy Pelligrini job? One can't help but wonder, given the shocking assertions based on misleading and garbled data. The AAP should be ashamed.

Dr. Dana Best (AAP) on losing IQ points and "millions" of victims:



Dr. Dana Best worries about children licking their bicycles . . .

My 17 year old daughter came along on this adventure and at breakfast the next morning, asked me why a child would like their sibling's bike rather than their parent's? After all, the adult bike is not regulated. I thought that was a good point, and added that if we posit that the child was going to lick something inappropriately, why would they lick a bike - why not the family car, which is coated with lead paint? Of course, I got it wrong. I was later corrected by someone who, after listening to this story, reminded me that the two year old wouldn't lick either bike or even the car - they would play in the pool of oil under the car. You can take it from there . . . .



Don Mays (Consumers Union) and Dana Best (AAP) on the frightening prospect of children playing in brass bands:

CPSIA - John Stuart Mill and Crib Safety

"I have observed that not the man who hopes when others despair, but the man who despairs when others hope, is admired by a large class of persons as a sage."

John Stuart Mill
1828

The CPSC recently congratulated itself for banning drop-side cribs. Scott Wolfson clucked on Twitter: "RT @Scott_wolfson: The lifesaving crib rules approved by #CPSC today are a key part of the #CPSIA. #CPSC wants all babies to have a #safesleep." Other people, like Rep. Jan Schakowsky, also rushed forward to take credit for this change in regulation.

To judge from these press releases, a real crisis in public safety has been addressed. Is that true?

Wasn't it Winston Churchill who once said that history is written by the victors???

I have not touched the crib issue previously because, frankly, it's too hot to handle. Who would want to defend a product associated with baby deaths? There but for the grace of G-d goes I. On the other hand, the projected compliance expense of $550 million is breathtaking, particularly given the fact that the agency's ruling is both retroactive and mandates replacement of cribs in certain childcare facilities. Even Commissioner Robert Adler calls this expansion of the CPSC's role as "uncharted territory". This sets a new precedent for government (CPSC) intrusion that I find troubling, even under these circumstances.

The always astute Lenore Skenazy questions the CPSC's justification of three fatalities a year linked to drop-side cribs. She labels herself "subversive" for looking at the numbers. [You know you were thinking it, admit it!] Based on the injury figures released by the CPSC, she notes that the deaths attributed to drop-side cribs are less than those attributed to spider bites (five per year). She puts the drop-side crib-related deaths in the context of 4 million births per year and asks where the limit is in our effort to save ourselves.

Skenazy rattles off many other death statistics (such as 1,300 per year from stair falls) for further perspective on the scale of the drop-side crib "crisis". She does not discuss pool deaths, which number between 1-2 per day and generate 11-12 childhood emergency room treatments for serious injuries daily. But the obsession of this CPSC is drop-side cribs, so we should not worry about those other things . . . .

Lenore makes a good point. What IS the limit? And how much should we pay? Is this really a public health crisis, and if it is, aren't all those other causes of childhood deaths similarly a crisis? Who gets to decide which crisis is our top priority?

As J.S. Mill points out, despair sells well so we are naturally inclined to accept on face value the shrill self-congratulations of the politicians who are so busy making us so safe. I have been battling the same self-justifications and self-praise by politicians and consumer "advocates" over lead for three years. Does the absence of injury statistics matter to anyone?

Interestingly, the CPSC provides some context on its crib decision. If you read through the document announcing the change, you will find out a few interesting tidbits:

• Despite Ms. Schakowsky's claim to have created this regulatory storm, the industry has been working on standards for many years. ASTM F 1169–10, the full-size crib standard, was originally published in 1999 and has been revised several times since 1999, including 2010. The same can be said of the voluntary standards for non-full-size cribs. The statement in the CPSC press release noting that "[t]he federal crib standards had not been updated in nearly 30 years" is pretty misleading - the voluntary standards relied upon by the agency and the industry have been regularly revised. [Until this administration took over, the CPSC relied on voluntary standards as a matter of public policy.] Even more remarkably, please note that the current CPSC action adopts these voluntary standards as the new mandatory standards with minimal amendments, calling the adopted standards "substantially the same" as the voluntary standards. Hmmm.
• The CPSC initially issued mandatory standards for cribs in 1973 and amended them in 1982. There has been on-and-off activity at the agency in the ensuing years. Crib safety was not a new subject to the Commission when Ms. Schakowsky announced the latest crisis. Ms. Schakowsky didn't solve the crisis either when she purportedly wrote this provision of the CPSIA. Is it actually certain that there ever was a crisis in drop-side cribs . . . or was Ms. Schakowsky simply looking to bulk up her hagiography?
• Annual sales of cribs are estimated at 2.4 million per year, including non-full-size cribs (approximately 300K per year). Thus, over 11 years (2000-2010), that's 32 deaths and an estimated 26.4 million cribs sold and 40 million babies born. Crisis? There are approximately 591 models of full-size cribs and 81 non-full-size cribs on the U.S. market, according to the CPSC. In recent years, the CPSC has recalled 11 million "dangerous" cribs defect" since 2007 (about 40% of the estimated total sales in the last 11 years).
• A pilot CPSC project of data gathering on crib injuries from November 1, 2007 to April 11, 2010 generated a total of 3,584 "incidents", including 147 deaths associated with full-size cribs. Some of these incidents go back as far as 1986, btw. Of the 147 fatalities, 107 were not related to any structural defect in any way. Of the 35 fatalities related to "structural problems", 18 were related to drop-side cribs. [The CPSC document contains a detailed analysis of the injuries, as well.] So of entire pool of fatalities from cribs in this period, 18 of 147 were related to drop-side cribs in some way - 12% of the total fatalities. The CPSC press release somehow omitted this additional fact.

This data cannot be correlated to the December 17 CPSC press release in which they note 32 deaths since 2000 (11 years). There is no data provided on the AGE, CONDITION or QUALITY of the cribs involved in the deaths, no information on the MAINTENANCE or STRUCTURAL INTEGRITY of those cribs or whether the hardware failure was apparent or not. In its May 7th press release, the CPSC notes however that the 32 deaths include "some [fatalities which] occurred in cribs where the drop side detached without caregivers noticing the detachment, while some other deaths occurred after a consumer tried to repair the detached drop side, but the repair ultimately failed." [Check out the photos to see what a consumer "repair" might look like.] No quantification whatsoever. Arguably, this CPSC statement suggests that any solution to the problem involves, in whole or in part, user education.

The CPSC did not supply data to distinguish between product failures/defects and parental or caregiver error or misuse. It's all laid at the feet of the crib design. The CPSC's "analysis" is pretty simple - you don't need drop-sides for your baby to sleep comfortably in a crib, and if we eliminate drop-sides from the market, presumably a certain number of unnecessary infant deaths can be avoided. It's a presumption, however.

It's hard to argue with their logic but it's also hard to know what has been accomplished. We do know that the ban of drop-side cribs costs a lot of money, however. Isn't that relevant, even a little bit? If user education is essential to ANY "solution", how do we know we have spent our $550 million well or achieved anything whatsoever? The precise mechanism leading to the fatalities cannot be determined from the paltry data released to the public. Table pounding by advocates is, regrettably, not data. As Mr. J.S. Mill notes, the advocates' histrionics are likely to be taken as "sage" in this case. What if we knew that ten years out, the replacement cribs caused the same number of deaths or perhaps even MORE deaths? The rate of fatalities in these cribs in already remarkably low. How can we be sure that the new cribs will be better? Should we just take Nancy Cowles' word for it?

I find it interesting that the crib industry has been rather quiet on this change in rules. There are literally dozens of suppliers of cribs in this country, and more than 11 million units have been recalled. Why such quiet from these companies? I suspect the reason is that most consumer do not blame the brands for these recalls, and few people are motivated to return their cribs. [That includes me. Consumer advocates label recalls "unsuccessful" when we the people don't do what they want us to do.] So the cost of the recalls is probably modest BUT the government is mandating that $550 million be spent by childcare providers on NEW cribs. Why would crib manufacturers object to this cost-effective stimulus plan?! Surely many people taking the old drop-side crib out of the attic will say "Whoa, that was recalled. I better buy a new one . . . ." Many, many people.

Thank you, CPSC, for making us so darned safe! The crib industry probably loves you (secretly). Not so sure about hotels and childcare providers. Ultimately I know who pays for all this, however, and it isn't the consumer advocates or the regulators. It's the guy who stares back at you from your bathroom mirror.

The CPSC for its part did something easy and self-serving: they saved us from yet another lurking danger that none of us could see, all at our expense. I wonder if the CPSC would be as enthusiastic in their actions if they had to pay for it out of their own budget (or pocket). The money they spend is OURS, and they never even need to steady their hand to write the check. I don't know about you, but I think it's much easier to spend someone else's money, especially when there are a lot of zeroes involved. The CPSC is making us do it for our own good. Does anyone see a problem here?

The new rule sets dangerous new standards for CPSC (government) intrusion into our businesses and into our lives. The CPSC's action means that the Commission thinks it's now okay to take retroactive action with impunity. This is a BIG change in regulatory policy. Bob Adler notes: "The Commission has never before entered into a rulemaking, whether or not required by Congress, that not only has retroactive applicability, but also requires the replacement of every product in a given product class – particularly in an occupational setting like child care facilities." OMG - and this is okay . . . why??? Because he says it's a crisis and it's important to do.

This is government power without restraint, and it's a serious issue. This is much more serious that drop-side crib deaths. I do not know how to run a business in a market regulated by people who make up the rules to suit their mood. I thought there were protections against this.

Let's hope Mr. Adler and his associates made a good judgment for all of us. They are spending our money and we have no choice but to do as we're told. That's "government of the people, by the people, for the people" nowadays, I guess.

I wonder what Abe Lincoln would think of this government . . . .

CPSIA - Save "Lost Souls", Vote for the Slanderbase!

The semi-religious mission of the safety zealots was on full display in today's New York Times. In an article entitled "Deep Divisions as Vote Nears on Product Safety Database", the Times profiled the controversy of the pending public database final rule approval (due on November 24th in a rubber stamp Commission session), highlighting the idealist objectives of the database supporters. As per its typical leftist slant, the Times article gives scant credence to the legitimate concerns of manufacturers or the demonstrable consequences of the unrealistic Utopian vision underlying the CPSIA. After all, we manufacturers only care about money, right?

Every drama needs a hero, villain and victim. The public database controversy has all the right elements - manufacturers and Republicans as "villains", consumer groups and Democrats as "heroes" and consumers as "victims". Positioned this way, why would anyone ever support manufacturers? Who would want to even listen to the black hats? Hmmm. Good strategy, Naderites!

Consider the illustration used in the article - Michele Witte suffered the unspeakable horror of losing her child in a crib death. She asserts that the database might have saved her child. Perhaps that is true, perhaps it is not. Nothing can salve the wounds she has suffered . . . but that does not make the database a good idea. [I might feel differently about the database if, for instance, it was limited to deaths.]

The implication that the database is necessary to protect consumers is not a well-examined assertion. There is already a lot of data available to consumers. For instance, the CPSC maintains a massive national injury database called NEISS. A search of crib injuries on the NEISS database for 2009 (classes 1543-1545) reveals 572 reports which extrapolates into a national injury estimate (for 2009 ALONE) of 16,537 incidents.

Here are a few representative NEISS entries (the first five in the above sample):

- CHILD FELL 3 FEET OUT OF CRIB AND LANDED ON TILE FLOOR. CRIED IMMEDIATELY. D:CHI, FOREHEAD HEMATOMA.
- PT FELL WHILE TRYING TO CLIMB FROM HIS CRIB. LANDED ON L SHOULDER ON THE FLOOR. FELL 4 FT. CRIES WHEN PICKED UP UNDER ARM.
- PT FELL OUT OF HER CRIB AND STRUCK HER HEAD. NO LOC. CRIED IMMED. NOW ACTING NORMALLY.
- FELL OUT OF CRIB. DX HEAD INJURY
- PT STANDING UP IN CRIB, FELL BACKWARD AND HIT HEAD ON CRIB, NO LOC BUT MOM STATES PT HAD DAZED LOOK AND HAS BEEN LETHARGIC; HEAD INJURY

Did you learn a lot from this information? Can you verify that it's true? Can you see ANY issues with attaching (unverified) product identities to this unverified and uninvestigated data? Are you a plaintiff's attorney?

What are the zealots saying to justify their support of the database in the face of persistent and rational criticism of its design? Commissioner Bob Adler, former Henry Waxman staffer and longtime board member of Consumers Union, sums it up:

"Some folks are worried more about lost sales and not worried enough about lost souls."

So, in other words, Adler condescendingly asserts that people like me are only concerned with MONEY. Instead, he claims that what's really at stake here are "lost souls". What is Adler talking about? Here's what Wikipedia says about "souls":

"A soul, in certain spiritual, philosophical, and psychological traditions, is the incorporeal essence of a person or living thing. Many philosophical and spiritual systems teach that humans are souls; some attribute souls to all living things and even to inanimate objects (such as rivers); this belief is commonly called animism. The soul is often believed to exit the body and live on after a person’s death, and some religions posit that God creates souls." [Emphasis added]

Mr. Adler's POV makes the question of having a federal database a moral imperative. Wow, now that's a heavy decision - souls are at stake! Furthermore, Mr. Adler positions those who support the database as moral people and those who oppose it as immoral money-grubbers who prize financial well-being over the safety of consumers. Ugh. I would hate to be a Republican Commissioner voting against the final public database rule with Mr. Adler's curse hanging over my head! Ouch.

Catching on to the theme, Ami Gadhia of Consumers Union, chimes in: "It’s a slow death . . . . [The] information never gets out in the public.” [Emphasis added] Death . . . souls . . . database! Do I hear a new slogan???

CPSC Chairman Inez Tenenbaum, ever sensitive to criticism, archly defends the agency's effort to dialogue with people like me. Please recall that part of their "outreach" was to ask me to spend our company's money to fly to Washington, D.C. to give testimony on the public database. Matt Howsare, Tenenbaum's then Counsel and now Chief of Staff, told me that they needed more perspective from manufacturers and kindly asked me to prepare testimony. As previously noted, NOTHING that I said in my testimony was adopted or used in any way apparent to me. The NYT notes:

"The commission chairwoman, Inez Tenenbaum, disputed the idea that manufacturers’ concerns had not been properly considered. She said the agency offered numerous forums for comment and some of those ideas were incorporated into the final proposal. 'We have been abundantly fair,' Ms. Tenenbaum said." [Emphasis added]

Apparently, testimony at a CPSC hearing is meant as an outlet for venting, not for listening. That's "abundantly fair", we are assured. Makes you wonder what "unfair" might look like . . . .

[A Senate Commerce Committee CPSC oversight hearing is said to be in the offing for next week. One fantasizes that they may take an interest in this issue, but the Senate is still a Dem stronghold. Don't hold your breath. Expect self-congratulatory positioning by the self-serving and deaf Dems.]

Consumer groups are portraying manufacturers demands for Constitutionally-guaranteed due process and other appropriate procedural safeguards as a grab for "advantage". In other words, procedural safeguards for manufacturers are not legitimate protectible interests in light of the POSSIBILITY that consumers may glean some useful information among the garbage that will accumulate in the "post-it-and-forget-it" slanderbase being put up by the agency. Again, the NYT provides the bully pulpit for the zealots:

"Consumer advocates suggested the opponents were trying to weaken the database to protect business interests. 'They have a great deal now, and I think they are trying to maintain the status quo by levying these unfounded arguments,' said Rachel Weintraub, director of product safety for the Consumer Federation of America." [Emphasis added]

If ever-disingenuous Rachel Weintraub is saying that we Americans have a "great deal" because we enjoy the protections of the Bill of Rights and other Constitutionally-guaranteed rights protecting groups and individuals against persecution and excessive governmental power, I agree. I agree heartily - and don't want to lose those essential legal protections that form an important basis for our investments. Please REMEMBER, everyone loses something when ANYONE loses their legitimate legal protections. Btw, Bob Adler is a lawyer and a former Scholar in Ethics and Law at the business school at UNC Chapel Hill . . . .

Mr. Adler plays a little fast and loose with his database concepts. Apparently, it's okay to put garbage into the database because the government "disclaims" its accuracy:

"Mr. Adler, the Democratic commissioner, said the database was not meant to be a legal forum like a court but more like a catalog of consumer experiences. He noted that a disclaimer on the database said the commission did not guarantee its accuracy. ‘"I put my baby in a diaper and my baby developed a rash." That goes up. It’s an early warning system to alert other consumers,' Mr. Adler said."

Ahem: "But Ms. Nord said the proposal remained far too vague. She cited the recent case of Pampers Dry Max, made by Procter & Gamble, in which thousands of parents asserted that the diapers were causing their babies to get a rash. A commission investigation found no link between the diapers and the rashes. 'We would have posted all these complaints about them even though they proved to be wrong,' Ms. Nord said."

Any idea why the CPSC "must" put up such a controversial database? The zealots know that there is legal risk in hosting a database that may include erroneous information or information that might slander manufacturers or tortiously interfere with commerce. They know this might violate manufacturers' legal rights and could lead to lawsuits - and don't want the legal liability or the hassle. How to get the data and avoid the legal problems? Get the government to host the legally-dubious information! Clever - but not necessarily in the interests of consumers or American markets.

Is the CPSC supposed to provide Mr. Adler's catalog of "consumer experiences"? Is that part of its mission? [Readers of my blog know that] I realize we have a right of Freedom of Speech (check out the Bill of Rights), but is the federal government really supposed to foster that Freedom of Speech? I appreciate that Mr. Adler thinks a consumer "experiences" database is a really good idea (I disagree) but since when do our tax dollars need to be used to provide it? Is that the only option that makes sense? And that goes double for such a dangerous proposal that presents the realistic prospect of discouraging investment and other economic activity.

So many words wasted on people who won't listen. Expect a "spirited" debate on the database as foreplay followed by the 3-2 partisan screwing that masquerades as safety administration these days. The song plays on . . . .

CPSIA - My Letter to Eric Cantor re CPSIA Over-regulation

VIA FAX (202-225-0011)

The Honorable Eric Cantor
United States House of Representatives
Office of Republican Whip
329 Cannon Building
Washington, DC 20515

Re: ”Delivering on Our Commitment” Letter

Dear Representative Cantor,

I am writing in response to your November 3rd letter entitled “Delivering on Our Commitment” in which you call for increased Congressional oversight of federal agencies legislating through regulations. My industry, the children’s product industry, is a victim of this kind of regulatory abuse. The Consumer Product Safety Commission's (CPSC) blizzard of new safety rules and regulations sharply ramps up government intrusions into markets by adopting the suffocating “precautionary principle” as its legal standard. This European-style approach to regulation, while doing nothing to improve the safety of products, is a job-killer and a business-killer plain and simple.

We really need your help!

In August 2008, Congress passed the “Consumer Product Safety Improvement Act of 2008” (CPSIA). The CPSIA had a noble purpose – to improve safety for children’s products by tightly regulating lead and phthalates (a plastic softener). It is a cliché now to observe that this flawed law was beset by “unintended consequences.” Unfortunately, Congress and the CPSC have been unmoved by the chaos that has ensued in the marketplace and the business community’s persistent pleas for relief. Small businesses are notable and well-documented victims of this law.

The children’s product industry, as defined by the CPSIA, goes far beyond toys and spans the U.S. economy. Children’s products under the definition of the CPSIA include ATVs, motorcycles, bicycles, pens, educational products, books, consumer electronics, apparel, shoes, jewelry, DVDs, furniture, musical instruments, carpeting and so on. Even the local resale shop and your own garage sale are now subject to new regulation under this law.

Our objections to this law do not reflect callousness toward safety. Quite the contrary, our industry’s lifeblood is children – and our outstanding safety track record befits an industry of caring adults. None of us want to endanger children. Likewise, we cannot tolerate being subject to laws that make operating our businesses unprofitable or exceptionally risky.

The CPSIA saga has become the poster child for “over-regulation”. While proponents of this safety law stress the possibility of injury to children (the curb appeal of the law), they fail to account for the probability of injury or prove a nexus between our products and the few known injuries. This is a critical distinction. While advocates argue that the so-called “Year of the Recall” justifies the arch new legal regime (473 products were recalled in 2007), the fact remains that children’s product recalls by the CPSC are associated with only one death (from a piece of leaded jewelry) and three unverified injuries over the 11-year period from 1999-2010 (according to published CPSC recall notices). By comparison, CPSIA compliance costs have been estimated to be more than $5.6 billion per annum.

We all agree that lead is a dangerous natural substance that can harm children – but the question is HOW. Other federal agencies, like the Environmental Protection Agency and the Center for Disease Control, point to house paint, industrial pollution and the residual effects of leaded gasoline as causes of elevated blood lead levels in children. The connection between lead in children’s products and injuries from lead remains undocumented. Daily intake of lead from children’s products is less than daily intake from food, water and the air, yet the CPSC remains undeterred.

Likewise, phthalates concerns remain highly controversial. The safety advocates have yet to produce a single known victim of phthalates – other than our businesses. Notably, since passage of the CPSIA in 2008, the agency recalled only one product for phthalates – 140 inflatable toy baseball bats. Even so, our company may have to spend hundreds of thousands of dollars on phthalates testing annually under the new law.

The agency’s response to lead and phthalates has been to impose a multi-billion dollar annual compliance cost accompanied by threats of heavy penalties, injunctions by the U.S. Attorney and possible felony charges. The agency’s obsession with lead and phthalates has led some staff members to refer to it as the “Children’s Product Safety Commission.” By comparison, the agency devotes few resources to swimming pools and spas, for instance, which account for more than one childhood death and between 11 and 12 serious injuries EVERY DAY according to the CPSC. I believe these confused priorities represent a subversion of the purpose of this agency under federal law.

Efforts to blunt the CPSIA’s impact have fallen on deaf ears. Sadly, Congress’ refusal to address the law’s shortcomings has only made the problem worse for the industry. Since passage, the CPSIA has been the subject of only one oversight hearing with a single witness, CPSC Chairman Inez Tenenbaum. There have been two other hearings, one by a subcommittee of the House Committee on Small Business and the other by a subcommittee of the House Committee on Energy and Commerce. Congress has never chosen to act on the many documented abuses of the business community under this law. The agency itself has held innumerable hearings and called for public comments again and again, but few objections of the regulated community have influenced outcomes. Votes on the Commission are now often on partisan lines – an abomination if one concedes that safety is not a partisan issue.

The regulatory nightmare of the CPSIA yawns wide in front of us. I testified before Congress in April 2010 that my company is now subject to more than 2500 pages of laws, regulations, rulings and other disorganized documents. Prior to the CPSIA, we were responsible to follow about 80 pages of rules, most of which did not apply to us on a daily basis. The total number of pages of applicable laws and rules now balloons far larger than Obamacare – and any violation of any sentence constitutes a possible felony offense under the terms of the CPSIA. We also must bear the risk that any of the 50 State Attorneys General might enforce this law if the CPSC defers. It is a regulatory nightmare of Orwellian dimensions. The CPSIA is an economic depressant by any definition.

The issues under the CPSIA fall into four categories: (a) Cost, (b) Complexity, (c) Legal risk and (d) Government intrusion. Our markets are now in total disarray because of the massive intrusion of the federal government along with scare tactics used by regulators trying to coerce compliance and, at the same time, obtain larger funding from Congress. Ironically, the more the agency uses the CPSIA to make us look bad, the more essential and irreplaceable they make themselves look. This perverse incentive is hard to combat. We need Congress to stop this madness.

The problems with the CPSIA and its implementation by the CPSC deserve much closer Congressional scrutiny. Our employees, our retailers and suppliers, and most importantly, the schools, teachers, families and children who want, need and depend on our educational products are counting on the new majority party in the House to restore sanity to federal safety administration.

Thank you for your urgent consideration of this matter. Please do not hesitate to contact me with any questions or comments.

Sincerely,


Richard Woldenberg

Chairman
Learning Resources, Inc.
380 North Fairway Drive
Vernon Hills, IL 60061

Chairman
Alliance for Children’s Product Safety

CPSIA - August, The Month To Scare (Oops, Save) The Populace

Well, it's August, almost time for Congress to recess for elections which means it's also time for your Dem friends to save you again. Makes a nice story for election time. Remember how Congress saved us two years ago, by passing a little bill called the Consumer Product Safety Improvement Act on August 14, 2008? I bet you're getting ready for the bill's second birthday party! Anyhow, the Congressional cicadian rhythm drove a couple Pelosi clones, Rep. Jan Schakowsky (D-IL) and Jackie Speier (D-CA), to timely release their latest legislative salvos designed to prove up their worth to you, the voters.

Ms. Schakowsky, one of Illinois' "finest" who is rated the Number One Spender in Congress by the National Taxpayers Union (thanks, Jan!), offered up another CPSIA-like morsel, the noxious H.R. 5786 Safe Cosmetics Act of 2010. Before we go on, who's against safe cosmetics? Everyone raise their hands . . . no one? Okay, we're all for safe cosmetics. So what's the problem?

• Annual registration with the FDA for all manufacturers, including much proprietary and confidential information.
• A federally-mandated schedule of new fees for the FDA to assess on the now poorer cosmetics companies.
• New safety labels (an old Schakowsky standby to make everyone so much safer).
• FDA review of the "physical, chemical and toxicological properties" of each chemical or mixture listed on the label. And lots of testing.
• New FDA regulations on banned chemicals and so on.
• New prohibitions, meaning that penalties and perhaps criminal actions are possible.
• Mandated public reporting of "adverse health effects".

The trial bar has to be licking its chops. And Jan gets to claim to her constituents that they can't live without her. After all, who else is going to save them??? Just like the CPSIA saved our company, our employees and our customers. So, so, soooooo safe and we get an even bigger federal government as an added bonus!

Not content to be outdone, savior-in-training Jackie Speier followed up her ratting out of safe McDonalds Shrek glasses with the newly-minted H.R. 5920 Toxic Metals Protection Act of 2010. Anyone against being protected from toxic metals??? Hmmm, no one? Thank heavens we have such an alert member of Congress ready to sweep in to protect us - right before elections! One of the big effects of this law is to make lots of things illegal and to specify civil and criminal liability for infractions. We really needed this!

Ms. Speier explains her "motivation": “'Children’s developmental health in this country is threatened by exposure to products containing cadmium,' said Congresswoman Speier. 'In May, Wal-Mart removed cadmium-tainted jewelry from its shelves. Last month, McDonald’s recalled over 12 million glasses containing cadmium, and SmileMakers Inc. recalled 68,000 Children’s Happy Charm Bracelets and Football Rings for containing this toxic metal. It’s time to be smart and aggressive about the risks posed by toxic metals that can cause children harm. This legislation is aimed at protecting them from hazardous levels of metals in products they might use.'" Oops, she forgot to mention that the Shrek glasses were acknowledged to be safe by the CPSC or that none of these products is associated with a single injury. Details . . . .

Then there's the swelling pile of Op-Eds and Editorials touting the "urgent" need to tighten the noose on chemicals (LA Times: "The new regulations will be burdensome on industry — and even more so if the state approves the recommendations we've listed here — but they should also pay dividends by lowering health care bills and environmental cleanup costs, as well as spawning a new industry dedicated to developing safer chemicals."). [Ed. Note: I love the part about how the bill will lower costs! I wish newspaper editorial writers knew how to add and multiply - they could really figure stuff out with those skills.] Henry Waxman, current shield of the CPSIA and guardian of the rules and regulations that ensure the business death of the children's product industry, wants to finish the job by making us account for every chemical in every product. TSCA Reform - super! We'll all be so safe . . . in the unemployment line.

Your Congress at work - making the world safe from jobs and prosperity, an August tradition!