CPSIA - Final CPSIA Amendment (HR 2715) Moves to President's Desk for Signature

Here is the final form of the CPSIA Amendment  (HR 2715) that should become law sometime this week.

I want to quote from another blog (thank you, Steven Hansen) on this amendment's path to the President's desk:

"This bill and the path it has taken is an example of why people are very frustrated with Congress and getting legislation passed in general. These 'legislative' fixes have been getting passed around in backrooms for months and when they finally did come to a 'vote' the 'fix' was already in and they sailed thru in minutes or seconds on votes that were purely formalities. There was really no warning that this would be passed when it did or in this fashion. If you did not get what you wanted in here well that's too bad because you are not likely to see any further relief for some time. Apparently Congress is going to be in recess until after Labor day as they had to work so hard to pass the debt ceiling bill."

Mr. Hansen is completely correct.  We know that even Republican members found out about this amendment when it was docketed for a House floor vote.  Mark-up, schmark-up.  The Senate also made the decision (if that is even possible, since the Senate is an inanimate organization without a mind) to shift to HR 2715 without debate, and passed it with a voice vote.  These decisions were literally made in minutes behind closed doors and Members of Congress had no time to read (and perhaps no interest to read) the "noncontroversial" bill.  After three years of intense bickering, a small group of individuals made the decision for all of us that this bill is good enough to "fix" the CPSIA.  There won't be another "fix" to this law again, perhaps EVER.  You know the bill sucks if Henry Waxman is clucking about it.  In fact, most of the text of the bill was his handiwork almost entirely (functional purpose, testing "relief" (Eshoo), database (Markey), small batch "relief").

And what did we get for all our good government dollars?  I have previously given my quick assessment of this law and have no interest in repeating the exercise at this point.  I would like, however, to highlight low lights of the bill:

Winners:   ATVs, Bicycles, Resale Goods, Books, Libraries

Losers:  See above list, and if you're not on it . . . you.

Technical Fixes of Past Congressional Screw-ups: 

• 100 ppm lead standard is prospective now.  And WHY wasn't Congress able to do this for 300 ppm or 600 ppm?  Good question.  The five CPSC Commissioners called for this particular change back in January 2010.  What's the hurry now???
• Changes to testing requirement to "representative" rather than "random" samples.  And we just hired our third statistician, too!
• Restricts the phthalates ban to accessible plasticized components.  i guess Congress isn't worried about kids with serpent tongues any longer.
• Makes FUTURE crib standards prospective.  And who said the $32 million in recently discarded good fixed-sided crib inventory died in vain?!

Shame, Shame, Shame:

Small batch manufacturers, the most micro of businesses (under $1 million in total turnover) must register prior to utilizing any of the nifty cost-saving testing innovations now being cooked up by the very open-minded CPSC.  This is the CPSC's version of the sex offender registry.  Is there ANY basis for singling these people out for special attention?  Why doesn't Mattel have to register, too?  Oh, come on, you know we must have different rules for Mattel!  They need their own firewalled labs and so on for their efficiency.  [Here's a good example of their efficiency.]  It's only fair, the real safety worry is the crafters . . . .

The only good news is that none of the small batch manufacturers will ever have to suffer this indignity. The clever gnomes of Congress have figured out how to appear to give something to those heart-rending  little nobodies without doing squat.  How do they do that?  The only "relief" that the CPSC may implement must meet this standard:  "Any such alternative requirements shall provide for reasonable methods to assure compliance with any applicable consumer product safety rule, ban, standard, or regulation." [Emphasis added]  This CPSIA term has already been interpreted by this Commission multiple times.  The word "assure" ensures that no relief will ever be given since nothing can "assure" compliance other than prophylaxis.  Notably, the Commission has purportedly looked for this "out" for three years and came up with nada.  And Bob Adler has been "agonizing" over it for that entire time.  [I feel AWFUL for him, he suffers for each of us.] How will another year or two of agonizing produce a different result?

Suckers are welcome to wait longingly for this promised "relief" but they will be disappointed again and again.  Protest is futile.

Disgusting, Repellent Hypocrisy:

Consider the amazing gimme provided to bicycle manufacturers:

"(B) METAL COMPONENT PARTS OF BICYCLES.—The third party testing requirements established under subsection (a) shall not apply to metal component parts of bicycles with respect to compliance with the lead content limits in place pursuant to section 101(b)(6) of the [CPSIA]."

They don't have to test their metal components at all.  AT ALL, EVER.  Bicycle manufacturers are different than you and me.

Let me be clear - I think testing metal components on bikes is a stupid and pointless waste of time and money.  The bike industry testified in the CPSC 100 ppm hearing that when they tested a single part in ten places, they got ten different results.  Whoa!  They proved they had an unsolvable problem and apparently Congress listened.  How heartwarming!

I gave similar testimony and submitted similar data about our products at the same hearing in the same panel sitting at the same table.  Congress must have gone deaf by that time.  Oddly, the CPSC staff included this data and my testimony in their 100 ppm report.  So perhaps Congress isn't just deaf, they may be blind, too.  Or perhaps they just don't bother with the details.

Inquiring minds want to know about this particular term benefiting bicycle manufacturers:

1.   The AAP testified that there is a real risk that kids might lick their bicycles.  Problem?  Apparently not, but the testimony was taken morbidly seriously at the time.  I wonder why Congress wants to protect bike lickers now.

2.   Perhaps you recall that the CPSC rejected the request of Learning Curve to exempt its brass bushings on toy car wheels.  This decision was a "major victory" for safety because, get ready for it, there was lead in the brass bushings although Bob Adler noted there was no danger even to a child at the "tipping point" in lead exposure.  [Adler voted to reject LC's petition nevertheless. He "had" to, the law left him no choice.]  Later the Consumers Union warned against playing brass instruments in a band because of the dreaded lead in brass.   [Degchi (Curry cookware) is one of many traditional Indian cooking utensils and pots made of brass.  Where are all the Indian victims from generations of eating off brass?]  The CPSC also held the line against bikes, pens and ATVs over the purported lead content of their metal components because the Dems asserted that there is no safe level of lead.  Is Congress signalling that metal components are uniquely safe in bicycles?  How did Congress figure this out?  Is there something in the Congressional record on this point?

The term about testing metal bicycle components first appeared in this bill when it went to the House floor on suspension.  Bills on suspension cannot be amended.  Hmmm.

3.   I recall Rachel Weintraub intoning during testimony at the CPSC and in Congress that consumers expect their products to be tested before sale.  [Former Commissioner David Pittle told the same tale at a CPSC hearing.]  Bicycles won't be tested before sale now.  How will consumers be able to sleep peacefully?  How will they know which items are not tested (ATVs, books, bikes, resale goods of all types) and which are tested?  Won't they have the same uncertainty again?  I can feel the fabric of our society tearing a little bit . . . .

4.   Bicycle manufacturers have indicated that tests of metal components vary depending on where you test the component.  There is unpredictable variability in their test results because . . . metal components are not precisely homogeneous.  Metals are used in components in many children's products, not just bikes.  It follows that all metal components pose the same issue.  It also follows that metals pose an equal risk of lead poisoning regardless of the product they are used in.  So why must we test our grommets and staples when bikes can tool around untested?

5.   Is there a reason why OTHER components on a bicycle (presumably made of plastic and vinyl) must be tested?  Is there a known health hazard there that bike companies must protect against?  Will those tests achieve anything for anyone?  And why must every other product category still subject to the CPSIA test every component, whether metal or plastic?

6.   The CPSC has held that it is "technologically feasible" to make every component of every children's product compliant to the 100 ppm standard.  There were no exceptions to their conclusion.  Why did Congress in its infinite wisdom decide that bicycles alone could be forgiven the need to meet this standard and alone to not have to test its metal components?  [The other problem child under this provision, ATVs and motocross, was written out ENTIRELY.]  Why weren't bikes made to comply with the astute judgment of the CPSC and shift over to new materials to meet the "toughest lead standard in the world"?  After all, that only costs money, and Bob Adler assured us that the cost would be minor and worth it.  Can't be too safe and, of course, we all know that safety delayed is safety denied.  Isn't this action of our all-knowing Congress denying safety?

As I have noted, this law picks winners and losers.  Applying reason and rationality to this arbitrary allocation of spoils is a pathetic waste of time at this point.  Congress has decided what's best for all of us, and with the Tenenbaum gang in charge at the CPSC, you shouldn't spend much time hoping things are going to change in the future. Henry Waxman and Rachel Weintraub won.

CPSIA - Waxman To Amend the CPSIA . . . Who Can We Trust?

In a remarkably-timed event, an amendment to the CPSIA was unveiled right on the heels of the two-day CPSC workshop on the "15 Month Rule". The amendment, expected to be attached shortly to the Defense Appropriations Bill (believed to be S. 1390 National Defense Authorization Act for Fiscal Year 2010), was developed by the House Committee on Energy and Commerce Democratic majority (Waxman and his staff) WITHOUT consulting with the Republicans on the Committee. Attaching the amendment to a moving bill in another committee is a procedural way for the Democrats to amend the law without hearings or discussion by the committee that drafted the CPSIA - and thus never lose control of the process. This maneuver is particularly outrageous given that Rep. Joe Barton, the Ranking Republican on the Committee, has a bill pending to amend the CPSIA (H.R. 1815, co-sponsored by 29 Representatives) and also has requested hearings on the CPSIA (which requests were ignored).

The outrages of this new bill extend beyond discourtesies in Congress. Equally remarkable is Waxman's apparent consultation of the General Counsel of the CPSC on the text of the amendment without informing certain of the Commissioners. This shocker to the Commissioners is quite extraordinary and possibly poisons the well for Inez Tenenbaum's CPSC Commission. There seem to be big issues of trust here. It is not known how many Commissioners knew of the existence or terms of this amendment, but it is strongly believed that this language was drafted in consultation with and perhaps under the supervision of Ms. Tenenbaum and her staff. It is also known that the Republican Commissioners were entirely in the dark as recently as 3 PM EST today. The apparently schism in the Commission has now broken into the open with the exclusion of Commissioners from this critical collaborative process along strictly party lines. Apparently safety IS a partisan issue.

The amendment tracks the little-publicized admission by Chairman Tenenbaum in response to the written questions of Rep. George Radanovich (R-CA) that a "functional" exception to the CPSIA lead restrictions is needed. [See paragraph 16(b) of the attached document.] This amendment is primarily focused on her request. The subject of a "functional" exception to the law has been discussed behind closed doors by many stakeholders but no common vision of such language emerged. As recently as a few days ago, Congressional staffers were denying that language would be attached to the new appropriations bill. Ah, truth in politics!

The draft language, said to be "final", can be summarized as follows:

• Redesigns Section 101(b)(1) by adding a VERY limited "functional" exclusion.
• The new language now permits a component to be excluded.
• Gives the Commission the power to exclude WITHOUT a hearing. Evidence no longer needs to be "peer-reviewed".
• Preserves the loathed "result in the absorption of any lead into the human body" language in the exclusion provision.
• Allows exclusion for product, component part or material "by reason of its functional purpose because it is highly impracticable or not technologically feasible to remove or make inaccessible the lead in such product, component part, or material" if "contact by a child with the lead . . . may reasonably be expected to be infrequent" and it is not expected to be mouthed.
• Each product, component part or material excluded must be labeled to indicate the presence of "accessible lead".
• The Commission may by regulation require the reduction of lead in the excluded item or material and/or establish a schedule for full compliance.
• The new amendment restricts the ability of the Commission to exclude "an entire product" if ANY part of the product does not meet the foregoing requirements. This provision is entitled "NARROWEST POSSIBLE SCOPE OF EXCLUSION".
• "Ordinary books" and "ordinary paper-based printed materials" are excluded from the lead restrictions under the CPSIA. This exception seems to include "quick copy" print materials, too. Materials not meeting the strict definitions of these terms are NOT excluded.

This language is not likely to make anyone particularly happy other than publishers and the library people:

The Pro's:

1. Waxman acknowledges, finally, that the law produced by a "perfect legislative process" needs some tweaks.
2. There is no denying now that the CPSC can't fix all the problems, and Waxman apparently concedes this point.
3. The Commission can now grant exclusions without a hearing.
4. Books were inadvertent inclusions in the CPSIA, and libraries were unfair victims. That has been corrected.
5. An awkward path for fixing ATVs, bikes and perhaps pens now exists. It is also possible that even rhinestones can be addressed, at least in part, under this language.

The Con's:

1. The amendment leaves in place the terrible "any lead" language, making exemption requests a (bad) joke.
2. Exclusions will be hard to get and require a great deal of expense to obtain.
3. ALL exclusions come with a Proposition 65-like "consumer right to know" label, making the sales of the product highly unlikely. Few products can carry an accessible lead label and still be sold in volume.
4. The narrowness of the exclusion inherently limits the freedom of the Commission to act according to common sense.
5. The Commission and the CPSC are still not empowered to assess risk.
6. Small business issues were completely ignored, as were testing cost, liability and labeling issues.

Some additional observations:

• The approach of Waxman to fixing this law demonstrates that the CPSIA is now a House Democrats' law. I will spit every time someone mentions the original 424-1 vote - the illusion of bipartisanship has been snuffed out once and for all. The exclusion of Republican Congressmen and Republican CPSC Commissioners from this process speaks volumes about how Washington intends to administer this law.
• Ms. Tenenbaum's technique in obtaining this "relief" makes her look like Mr. Waxman's bag man. The close alignment of Bob Adler and Ms. Tenenbaum on the Commission puts Mr. Adler into this camp, too. [When this subject comes up, Mr. Adler's prior job on Waxman's staff always has heads nodding.] The quiet development of this language breaks the illusion that talking to the Democrats on the Commission will somehow bring changes independent of Mr. Waxman. This bill makes it look like he maintains staffers on the Commission.
• The exclusion of books is nice, but smells a bit funny to me. The American Association of Publishers appointed Tom Allen as its CEO in April. Mr. Allen, a Democrat, served under Henry Waxman on the Energy and Commerce Committee and often followed his lead as a Congressman. Small wonder he got this job, right? It wasn't a real shock then that books were excluded in this amendment. Despite the holier-than-thou rhetoric, it's "business as usual" in Washington under Obama and Pelosi. A friend in need is a friend indeed.
• The narrowness of the exclusion process and the requirement of labeling despite the apparent admission that such exclusions pose few health risks strongly suggests that the legislative process is being controlled by zealots who will not yield to reason. The "true believers" who now dominate Washington have a world view that you need to take on board - Californiziation. There is no compromise on these issues, regardless of common sense or hard reality. Given the exposure of the axis between these Congressional leaders and the control block on the Commission, there seems little reason to be especially optimistic of serious advances in implementation of the CPSIA by the agency.
• The Chairman and Democratic majority on the Commission lack the political will to take on Waxman in an effort to fix the CPSIA. This potentially sacrifices the long term effectiveness of the agency in its stated purpose to protect consumer safety and possibly also the vigor and competitiveness of the American children's product industry, all to avoid the unpleasantness of a contentious job. Complaints at the CPSC that it should be renamed the "Children's Product Safety Commission" or the "Consumer Product Compliance Commission" will likely gain traction. The lack of political will to fight the good fight and to stand up for common sense create the conditions for a terrible legacy. Will these Commissioners be able to say they left the agency better off than they found it? An interesting question. Guys, there are no free moves in this game . . . .

I continue to shake my head over the timing of this development. Were I Chairman Tenenbaum, I might have told Mr. Waxman that I didn't need this kind of help. Consider what may have been lost: (a) the bonhomie and trust built in the last couple days at the workshop as CPSC Staff and all sorts of stakeholders mingled in good faith and with open dialogue, (b) the goodwill generated by the CPSC efforts to protect Cepia LLC and their Zhu Zhu Pets from unfair consumer group attacks, goodwill that now must be reevaluated, and (c) the general appearance of a new cooperative, open-minded wind blowing through the CPSC in the last six weeks. I now have my doubts about the candor of discussions and the legitimacy of stated intentions to "fix" the system. The good intentions and well-meaning of the CPSC Staff is not really in question here - but the leadership must be held accountable. You can't ask for trust and then expect this kind of thing to be ignored. You are either a partner . . . or you aren't.

The Stay is now on the table. The CPSC Commission has been meeting behind closed doors with a sense of purpose and urgency to figure out what to do with it. Your letters and emails are being read . . . but the open question is whether enough Commissioners care. The Republicans on the Commission have been open in their support for extending the Stay, but the three Dems are unaccounted for. One is said to feel strongly that the Stay needs to go away, on the grounds that Congress wants it gone. Let's not make any bones over this - it's not Congress, it's Henry Waxman. If it were Congress (in other words, a bipartisan movement supporting the existing CPSIA), then perhaps Mr. Waxman wouldn't have to sneak around to get a CPSIA amendment through Congress without hearings or discussion. So when you hear that "Congress" wants something with this law, connect the dots.

A very disappointing way to wrap up a promising week.

CPSIA - Old Books are BANNED

The CPSC Commission wrestled with the subject of old books and LOST (its mind). In today's docketed vote on exceptions under Section 3 of the CPSIA (materials determined to never violate the lead standards), the Commission considered the American Library Association's appeal to common sense to exempt all library books. Of course, we know that the CPSC is no longer allowed to consider risk - Mr. Waxman will handle that, thank you - so it squirmed and attempted to find a crack or crevice to stash an exception for these materials. No such luck, Charlie:

"Under section 101(a) of the CPSIA, Congress has deemed that children's products that do not meet the lead content limits within the specified dates 'to be banned hazardous substances.' Accordingly, the Commission may not provide relief from the lead content limits except under the specific exclusions provided under section 101(b) ofthe CPSIA. Absent a finding that all used children's books fall within the scope ofan exclusion, the Commission is bound by the statutory language of the CPSIA. Unfortunately, the Coinmission is unable to make such a determination in this proceeding. Because older books have not been manufactured using modem printing processes, such as the CMYK color process, and have been found, in some circumstances, to contain leaded ink or components, the Commission is unable to make a determination that the components of all older children's books fall under the lead content limits.

For older used children's books that are sold, many of these books may be collector's items that are sold to adults. Such books would not be considered to be intended primarily for children, and accordingly, may continue to be sold to adults. For older used children's books that are lent out, ALA has requested additional guidance regarding the treatment ofthese products. Accordingly, the Commission intends to issue a separate Statement ofPolicy addressing the treatment of older children's books." [Italics added.]

Let's not forget that in an effort to protect America from the scourge of old books, Commissioner Moore cautioned libraries across the land to sequester these "dangers" until further notice ("I believe that our staff has come up with a supportable 'bright line' to guide libraries as to what books we will deem not to pose a problem and which ones should be sequestered until we get more information from the publishing and ink manufacturing industries."). That was a real high point in this drama, I think.

What can I say? Pathetic and shameful, but hardly the CPSC's fault. The idiocy of this decision is entirely Congress' fault. Frankly, I struggle to find words strong enough to condemn a law like this. As a longtime book lover and heavy user of libraries, I find this decision demoralizing, embarrassing and deeply troubling. I grew up in a library. To think that the CPSC is cooperating with making that a distant memory and thereby harming children all over the country makes my blood BOIL.

Should we worry about this? Will anyone actually take action or withhold access to books in libraries? Well, consider the policy of this North Carolina library (courtesy of Lenore Skenazy of http://www.freerangekids.com/): "To ensure a safe and enjoyable library visit for all, the Hyconeechee Regional Library staff would like to remind you of our Safe Child Policy. All Hyconeechee Regional Libraries require that children 12 years of age and under be accompanied by a parent or caretaker when visiting the library. Parents/Caretakers are responsible for the child’s safety and behavior at all times while in the library building. If library staff is aware of an unattended child, they will try to contact a parent or legal guardian. If unable to locate a parent or guardian, staff will contact appropriate authorities." You read that right - unaccompanied children under twelve may be turned over to the police. Perhaps some jail time for touching books will teach those darned kids a valuable lesson! I have contacted this library to ask if the origin of this genius new rule derives from the insane CPSIA. No response . . . . You decide.

What kind of world is this, anyhow? As I have said many times in the last year, THANKS CONGRESS!

CPSIA - Exceptions, Exceptions

The CPSC today docketed their long-awaited decision on CPSIA Section 3 lead standards exceptions for materials known to be "always" compliant. This ornate 94-pager succeeds in making an awful law even more confusing and unworkable. [I have already commented on its shameful impact on library books.] Owing to the decision's length and the bad reputation I enjoy for going on and on, I will try to keep this comment as succinct as possible. Please keep in mind that I am summarizing a 94-page document, however.

Needless to say, the obvious effort here was to narrow the scope of the law to lessen its financial impact on many industries. In that regard, some good was accomplished. There will be some winners, generally makers of simple and untreated goods. Many (not all) "crafters" will be delighted. I hate to break the news . . . but the economy goes a bit further than crafters. What about those of us who make products more complex than an unadorned white cotton t-shirt? There's a word for those people - it's "losers".

The CPSC has the well-known problem of being forbidden to assess risk under the CPSIA. Thus, this queer document simply examines the physical attributes of various materials for compliance with the arbitrary lead standards, all without regard to whether the materials present any known safety risk. This was Congress' fervent desire - that the CPSC not exercise judgment. You can see how items like rhinestones, pens, bikes and Potato Clocks might present particular problems under this construct of law. There is no way to let these items out despite the everyday knowledge that they pose absolutely no risk to consumers from lead content.

The document spends pages and pages in tortured analysis determining which materials can safely and unassailably be construed to be compliant in all known manifestations. If upon reading it, you begin to see a giant wedge of Swiss cheese forming before your eyes, you are not imagining things. Congress' great innovation here was to make everything "illegal" and then carve out exceptions only upon evidentiary consideration after submission of very expensive petitions. If you don't apply for a carve-out, you don't get a carve-out. So holes pockmark the law in seemingly random and unpredictable fashion, all related to whomever ponied up for a (successful) application for exception. The holes cannot be accurately anticipated (they might or might not be there - you must look). Congress' genius legal construct essentially creates a law that resembles organic chemistry - an illogical subject that can only be mastered through pure memorization. I did not like that class. At all. Just as in my dreaded Orgo class, there is a lot to learn to master the CPSIA regulations.

The decision lists many materials that are now excluded from the testing requirement (nothing is excluded from the tracking labels requirement, btw), and many others are explictly NOT excluded. Even if you were able to fit wholly within the safe harbor, the decision is not intended to let you rest easy. It's not really a safe harbor, we are all supposed to remain at risk: "The Commission intends to obtain and test products in the marketplace to assure that products comply with the CPSIA lead limits and will take appropriate enforcement action if it finds a product to have lead levels exceeding those allowed by law . . . . Moreover, even when a particular product or material has been relieved of the testing and certification requirements under section 102 of the CPSIA, manufacturers and importers remain responsible for verifying that the material or product has not been altered or modified, or experienced any change in the processing, facility or supplier conditions that could impart lead into the material or product to ensure that it meets the statutory lead levels at all times." They want you to squirm - even if you are making products entirely from materials explicitly deemed compliant. The law and the CPSC have not identified any behavior or conduct that will cleanse you of liability. The clear message - you make children's products at your own risk. Are we having fun yet?

The details of what's in and what's out are in the linked document. I will highlight a few choice bits without attempting to summarize the complete decision. Please refer to the document for the list of excepted materials.

Glues: I particularly like the exception given to glues. The CPSC doesn't know the composition of most glues (other than "animal glue" - I wonder if that includes "Gorilla" brand specifically) and since risk and safety are utterly irrelevant now, the decision does not give a pass to these materials. However, good news - glues are apparently often "inaccessible" and thus don't need to be tested. Sound good? Now, here's a question - how am I supposed to NOT test the glue that is adhered to the material the CPSC wants tested? And if the glue saturates the material, then what? If the material + glue fails the test but I can prove that the raw material is fine, then what? Who performs this test, a lawyer or a testing lab? Get ready to earn your Ph.D. in testing and safety regulations.

Metals: More good news: the decision exempts "surgical steel". So, if you make toys with surgical steel, like "My First Really Sharp Scalpel Kit" or "Home Brain Surgery for Kids!", you are good to go. Other common metals used in children's products, such as pure gold and silver, titanium (both α-and β-phase - whew!) , platinum, palladium, rhodium, osmium, iridium and ruthenium are also usefully blessed. I know the ATV'rs are thinking of pure platinum models to solve their compliance problems - it's your lucky day, apparently. Even stainless steel is okay (but certainly not 303Pb - you know that one, don't deny it!). Stay away from unusual items like non-steel or non-precious metal components such as solder or base metals in electroplate, clad, or fill applications and aluminum, copper or pewter. Let's not even TALK about brass.

Education: What about rocks, you know the things that were here before Mr. Waxman began to roam the Earth? The CPSC helpfully determined that Congress made them illegal under some circumstances. "As with the precious gemstones and certain semi-precious stones that the Commission determines do not contain lead at levels that exceed the CPSIA lead content limits, other rocks and stones may comply with lead limits provided that they are not based on lead or lead compounds and are not associated in nature with any mineral that is based on lead or lead compounds. In general, we agree that most minerals do not contain lead. However, some minerals are known to contain lead or are associated in nature with minerals than contain lead. We have previously identified minerals that can contain lead, such as aragonite, bayldonite, boleite, cerussite, croroite, linarite, mimetite, phosgenite, vanadinite, and wufenite. We have also identified galena, and will add this mineral to the list of lead containing minerals under section 1500.91(d)(2)." [Italics added.] Clear enough for you? And how does this apply to granite or fossils? You tell me, we do not employ a Ph.D. geologist (yet). This is going to make school supply so EASY! It's "common sense" going full blast.

Apparel: While the decision excises most fabrics and dyes from the need for compliance testing, it also explicitly includes "after-treatment applications, including screen prints, transfers, decals, or other prints." Along with the decision on rhinestones (also noted and affirmed in this document), all accoutrements found on apparel or footwear will be subject to endless testing. The message to apparel makers - if you want to keep life simple, make dull, unadorned clothing, and try to use string as closures (but not TOO much string, Mr. Hoodie). Snaps, zippers and so on expose you to liability risk and cost. "Boring" is the new "exciting" under the CPSIA.

Paper and Ink: Papers have been excluded, even when printed. This is consistent with the decision to exclude books printed on or after 1985. Printing inks used in four-color process are also blessed, however the following inks are NOT excluded: "spot colors, other inks that are not used in the CMYK process, and inks that do not become part of the substrate". Boy, this will be so easy to manage. . . .

The decision continues: "In addition, as discussed in part D.13 of this preamble, we have found that certain after-treatments, including screen printing, may use leaded pigments. Accordingly, inks used in any after-treatments for decals, transfers, and other prints also will be excluded under new § 1500.91(d) (6). Other additional treatments such as . . . laminators or laminations, including plastic sheet or film, or other coatings, would continue to require testing and certification under section 102 of the CPISA if such products are plastic component parts or a paint or similar surface-coating material under 16 CFR part 1303."

Were you feeling good for a minute there? That was unintentional, the CPSC apologizes for any misunderstanding. Hopefully you are now experiencing a good deal of anxiety again.

Fasteners: Staples on books need to be tested IF they are accessible BUT you can get out of it if you use surgical steel for your staples! Bookbinding will be a great new market for medical supply companies. If you use screws as a fastener . . . well, you can guess.

Plastic or Metal Components: Give up the idea that ANYTHING made of plastic or metal will be blessed if not included in the above exceptions: " . . . based on the Commission's past experience with other children's products that have been found to contain lead, the Commission cannot make a determination that any component parts made out of plastic or metal (with the exception of metal determinations made in this rule) falls under the lead content limits." Zippers, grommets, etc. - all are left IN the law. Component testing will be addressed later. I am waiting with baited breath.

While the CPSC tried its best to be sensible, the law does not permit good sense on their part. They are not to be blamed, they didn't write the law and are not permitted to rewrite it. Frustration with the decision is appropriate, but the "bad guy" is clearly Congress and its estimable "leaders". As we get walked down the plank, remember who did it to you. The voting booth beckons . . . .

CPSIA - Carter Wood 6-24 Op-Ed in the Washington Times

Carter Wood of NAM published an excellent Op-Ed on the CPSIA in today's Washington Times:

Lead-footed safety issues

By Carter Wood
June 24, 2009
Washington Times

It's a safe bet that no member of Congress has ever given a speech proudly endorsing a bill to close mom-and-pop businesses, hurt low-income shoppers, cause libraries to discard children's books and ban products ranging from dirt bikes to ballpoint pens.

Last year, Congress overwhelmingly passed a law that did all these things - forcing small businesses to close and punishing manufacturers, retailers and consumers. Yet the Consumer Product Safety Improvement Act (CPSIA) became law with few warnings - and no congressional floor speeches - about the serious economic harm it would cause.

To be sure, the CPSIA came in response to the public's legitimate concern about dangerous toys and products, especially those contaminated by lead paint. Reports in 2007 produced a media storm and political pressure. Manufacturers and retailers alike welcomed increased funding and staffing for the CPSC. But Congress went further.

The law mandates expensive, destructive products testing. All products intended for children 12 and younger must meet new lower-lead-content standards. All children's products also must include a permanent tracking label.

The first to discover the crushing impact of the law were makers of hand-crafted toys and baby clothes. These small companies and home-based businesses often emphasize their use of natural dyes and other organic components. Demand soared in the wake of reports of dangerous toys imported from China. Then the CPSIA delivered its blow.

At a Capitol Hill rally in April, a representative of the Handmade Toy Alliance detailed the impact. Jill Chuckas of Stamford, Conn, related how the children's clutch ball her Crafty Baby company sells for $16.50 would cost $1,500 to test - a test that destroys the product.

These same "safety" standards and testing requirements apply to used children's clothing, toys and pre-1985 books (potentially printed with lead-containing ink) sold or distributed secondhand. Unable to bear the testing costs and unwilling to risk the legal liability, many thrift stores are simply emptying their shelves. Libraries and used-book stores have packed away children's books.

The April rally also brought home the impact on motorcycles, snowmobiles, all-terrain vehicles and bicycles. Certain metal parts - AZ battery terminals, for example - are made of alloys that contain minute levels of lead. No realistic possibility exists that children will consume the parts, but the CPSIA still bans them.

The Motorcycle Industry Council estimates the law could cost manufacturers and retailers as much as $1 billion annually in lost inventory and sales. There's an individual impact, too. At the rally, champion Motocross rider Rod Yentzer said his family rides 52 weeks a year, but parts are getting hard to come by, threatening the family pastime. He then turned the podium over to his 6-year-old son, Chase. "Please let me have my dirt bike back, and I promise I won't eat my dirt bike," Chase said.

Earlier this month, the law hit yet another target: ballpoint pens. The pens are made with metal points that contain minute amounts of lead. They could never legitimately be considered a health risk, but the CPSC made it clear: Pens targeted for sale to children are banned.

Bound by the law's unambiguous requirements, the CPSC has rejected industry requests for exemptions. Instead, the commission has granted stays of enforcement - in effect, offering to look the other way for a year or two.

"The CPSC is buying you some time in which to go out of business and/or retool your production to meet their standards," commented Sarah Natividad, owner of Curious Workmanship, who produces handmade baby booties in Tooele, Utah. "They don't have the authority to rescind the Catch-22 in the standards, so they're doing the best they can."

Ms. Natividad is one of scores of owners of small, home-based businesses who have turned to online social networking to push Congress to reform the CPSIA. Unfortunately, no legislation is moving; some members have deflected the growing grass-roots criticism by blaming the CPSC's current leadership.

Last week, the Senate unanimously confirmed President Obama's nominee to chair the CPSC, Inez Moore Tenenbaum. Ms. Tenenbaum is well-qualified - a lawyer, former South Carolina superintendent of education and a 2004 Democratic candidate for U.S. Senate. Business and consumer groups urged her quick confirmation.

Still, Ms. Tenenbaum is being put in a difficult position, asked to enforce a flawed law that is destroying businesses and depriving consumers of safe and useful products. Her tasks ahead include not just regulation and enforcement, but persuasion. She must convince Congress of what is already painfully clear to businesses large and small: It's time to fix the Consumer Product Safety Improvement Act.

Carter Wood is a communications adviser for the National Association of Manufacturers.

CPSIA - Making "Sense" of It All . . . .

The last week featured numerous important events:

a. The CPSC Public Meeting on Tracking Labels (May 12)
b. The CPSC Commission Decision to Reject the Bicycle Industry Application for Exemption and Call for a Two-Year Stay (May 12)
c. The CPSC Commission Decision to Reject the NAM Petition to Stay the Tracking Labels Provision (May 13)
d. The House Small Business Committee Hearing on the CPSIA (May 14)

These events are all over the map but can be correlated. It boils down to this (no surprise): the CPSIA is a rigid and inflexible law designed to remove discretion from the CPSC Commission. The CPSC is not free to decide what is safe and what is not anymore. The twisted logic of the CPSIA creates legal conundrums that have no possible solution under the law, leaving the Commission little choice but to legislate with stays (see the bicycles decision, for example). Small business remains a pawn in this dirty game of politics.

When faced with the request by the Bicycle Product Suppliers Association for an exemption, the CPSC staff correctly concluded that although the lead intake from bicycle use was absurdly low (as any sane adult would acknowledge), they had no choice under the law but to reject the request because SOME lead is absorbed. Less lead than absorbed by eating your daily dietary requirement of dirt, but more than zero. Under the CPSIA, this is an irresolvable dilemma. [I will spare you the silly comparisons between the intake from bikes and candy.]

The Commission, stuck with this law, utilized its only remedy to avoid a plainly stupid result for bikes - it authorized a two-year stay on a basis to be determined. Yes, they need a reason to grant the stay, to at least maintain the appearance of staying within their legal authority to protect the public. As in the case of ATVs, the Commission needs a safety excuse to permit the resumption of manufacturing and sale of bicycles in violation of the lead standards. [N.b., this decision is an illegal act under the Constitution (legislation by a Federal agency is against the law).] In the ATV case, the Commission noted the need to keep kids safe by keeping them off adult-sized ATVs. And in the case of bikes, the CPSC intends to protect against what dangerous alternative? Spraining your ankle while walking? Not being able to reach the pedals on adult bikes? Ms. Nord, in her statement accompanying the bike decision, comments: "This course of action is becoming all too frequent for the CPSC. It is needed to avoid market disruption and to protect consumers. However, it is not an optimal way to implement a statute." It doesn't take much to reduce a legal system to a shambles.

The Commission's helpful spirit didn't last long. In an incredible irony, on the very next day the Commission split 1-1 over a tracking labels stay in its first deadlock over the CPSIA. Despite overwhelming evidence of market damage provided in testimony at the CPSC's public meeting on Tuesday, as well as in more than 130 comment letters, the Democratic Commissioner decided he had given out enough justice for one week. Mr. Moore commented: "While the Commission has stayed enforcement of a few sections of the CPSIA for certain products, it has not granted a blanket stay of enforcement from a provision for every affected product, which is what this request seeks." Ummm, other than the stay on testing and certification you voted for, Mr. Moore. No matter, Mr. Moore notes that "[this] will be a learning process for all of us. . . ." Something to look forward to.

One can only wonder how Mr. Moore's vote was regarded by the backers of the CPSIA agenda. First, we hear again and again that the CPSC must toe the line of the law. Then, when ATV'rs and the like begin to flex their political muscle and embarrassing articles about library books crop up, some Congressional venom flows and 28 Senators plead for "common sense". The Democrat on the Commission was positioned as the "good one" with "common sense" and Republican Nancy Nord set up as the "bad guy" standing in the way of progress. Now it again looks like Mr. Moore hasn't been reading his script. Of course, this is the guy who called for sequestering library books.

Mr. Pryor in his April 9 letter with 27 Senator friends instructs: "We confirm that the Congress provided for agency discretion . . . to implement the Act in a manner that would recognize anomalies in implementation and to work with businesses, institutions, and consumers to establish the protections of the Act without undue impact on the stream of commerce." [Emphasis added] Ah, but surely they didn't mean twice in ONE WEEK! With his "we'll all learn a lesson on this one" decision, Mr. Moore punctures the illusion (shaky at best) that the Republicans are the ones who lack common sense. Live by the sword, die by the sword. . . .

These decisions were bookended by a tracking labels hearing at the CPSC which set out extensive industry concerns over the cost and consequences of the new label rule, and a House subcommittee hearing that documented the terrible impact of the CPSIA on small business. After the polite and unusually civil hearing in the House, the Democrats nevertheless recharacterized it for their political purposes, ignoring clear ebidence provided by the witnesses.

Pardon me if the week left my head spinning.

So what happens next? An interesting perspective was offered by DNC Chairman Gov. Howard Dean on the CNBC Power Lunch program on May 7th: "[We've] had quite enough capitalism in the last eight years and I think we need some regulation now." That seems to sum it up.

Unless and until the new Commissioners okay a change in the law, unless and until a Democrat has the nerve or good character to admit a fundamental mistake in the drafting of the CPSIA (as the Republicans have conceded) and Congress takes action, there is little to hope for but time. The brunt of the impact of the law will be felt by small businesses and family businesses, a group with a great record for patrolling safety and staying close to the details. It's a shame that this strong group of corporate contributors will be sacrificed to satisfy the "better safe than sorry" crowd. We'll see whether they will feel safe or sorry when the consequences of their handiwork are known.

CPSIA - WSJ Editorial 3-30-08

Pelosi's Library Quarantine

The CPSC is left cleaning up the House Speaker's messy child-safety law.

It looks like "Jumanji" in local libraries these days, after the classic children's book about chaos unleashed by the failure to heed warnings. In February, an overzealous law governing lead in products resulted in toys going from store shelves to the trash heap. Now, confusion over how the rules affect children's books has led some libraries to rope off kids' sections.

Last summer, the Consumer Product Safety Commission (CPSC) interpreted the 2008 law to include children's books, though exactly what that means is anyone's guess. CPSC spokesman Scott Wolfson told the Associated Press that until the agency can give clearer guidance, especially on books published before 1986, public and school libraries "should take steps to ensure that the children aren't accessing those books." The agency hurried to say it didn't mean to tell libraries to toss the books, but that it is "investigating" whether there are unsafe lead levels.

Democrats in Congress have leapt to criticize acting CPSC Chairman Nancy Nord, in hopes President Obama will replace her. But the real culprit here isn't the CPSC, which is overwhelmed with requests from manufacturers trying to make sense of the chaos that Congress created. House Energy and Commerce Chairman Henry Waxman has dismissed efforts to improve the law, claiming the real problem is that "misinformation has spread" about the impact on businesses.

Older books pose hardly any danger, according to safety experts at the Centers for Disease Control. The problem is the ambiguity in a law that leaves businesses facing lawsuits if they can't prove their products are safe. In addition to libraries, thrift stores, church bazaars and small batch toymakers are also unclear what they can and can not sell. Makers of bicycles and ATVs have pulled youth models -- designed to increase safety -- off the showroom floor at a cost of hundreds of millions of dollars.

Nancy Pelosi boasted last summer that the toy safety law would mean products weren't merely made differently in the future but would be removed from the shelves today. That's the real source of this mayhem, as she was amply warned at the time by Democrat John Dingell, among others. Ms. Pelosi prevailed, and now the harm to thousands of businesses, charities and even public libraries is manifest. Since the House Speaker won't admit a mistake and fix the law, the CPSC must do what it can to prevent more damage to the already challenging economy.

http://online.wsj.com/article/SB123837358752967989.html

CPSIA - Stupider and Stupider

Check out the TV coverage we saw while in Dallas this week: http://cbs11tv.com/video/?id=39448@ktvt.dayport.com. The CBS affiliate in Dallas-Fort Worth rightly points out that the CPSIA could require libraries to test every book printed before 1985. In our office, the joke making the rounds is that this is a tacit ban of George Orwell's "1984", a rich irony don't you think? Mr. Orwell would LOVE it. More profoundly, it also tacitly bans old copies of Goodnight Moon and Cat In the Hat. I rather doubt Dr. Seuss would like this one bit.

Let's stop and think for a moment (this is what distinguishes us from Congress). Consumer products intended children under 12 years old - that includes books, right? Lending and selling are the same thing under the law, for good reason. Ergo, libraries are in. Hence, libraries have the same problems under the CPSIA as ATV dealers, thrift stores, toy companies, clothing manufacturers, and so on. My question is - why should the law apply to libraries at all? Is it sensible for our country to pass a law, chock-a-block with criminal penalties, state enforcement, whistleblowers, even asset forfeiture (you know, like you are a drug dealer, yes that makes a lot of sense), that even for one short second gives any credibility to the notion that books are or even might be poisonous?

Where did this clunker idea come from? It came from the basic notion in the CPSIA that the right way to organize our society is to take NO CHANCES. NONE - the law weights all risk equally. Think of balancing the risk that you will spill your coffee in your car on the way to work with the risk that that you will be struck by a meteor during the same trip - that's equal weighting of unlike risks. If you buy this, it makes "sense" to deem everything dangerous, and let the manufacturers fight to get the right to sell their products. And, yeah, to make things even more secure, make the manufacturers prove and re-prove this safety and document their every manufacturing and distribution step, as though they are handling nuclear waste. . . . Under this world view, it is far too costly to take a chance with any of this.

Thus, the entire law is wrong-headed as it starts with the premise that everything is dangerous unless proven otherwise. This notion does not come from the real world. Is this really your everyday experience? I know my wife feels that milk past its sell date is some kind of public health hazard (we disagree on this point) but is danger really lurking everywhere, in every crevice and behind every corner?

Let's not let opinion or taste dictate the course of this debate. I say we should let the data decide this matter. So where's the record of harm that we are trying to avoid? I know that there were many lead-in-paint recalls from 1/07-1/09 (125 to be precise) but only one documented claim of injury (not a death). Yes, there was also one death from a child in Minnesota swallowing a lead bangle from a bracelet. Does this mean that books, clothing snaps and zippers, ATVs and dirt bikes, pens, and so on are all bad unless proven otherwise? Is there ANY reason to suspect that there is ANY nexus between the use of or exposure to these items and injury? The answer is a resounding NO. Even the consumer groups are quite unable to make this connection, relying on the pablum that lead is bad for you (well-accepted and well-known), and then pointing out that there is trace amounts of lead in consumer products. They have no way to demonstrate that leapin' lead is responsible for any harm.

Even the lead-in-paint cases are questionable in their own way. Remember the Mattel recall of Sarge, the character from Pixar's Toys movie? See http://www.cpsc.gov/cpscpub/prerel/prhtml07/07270.html. In this case, Mattel recalled 436,000 units of this product (253,000 in the U.S.). I know it's impolitic to talk about this . . . but it is my understanding that the offending paint was a highlight on the wheel hubcaps, and came from TWO CANS OF BAD PAINT. Yes, Mattel burned through heaven knows how much money recalling this item because of TWO CANS OF PAINT slipped through its safety systems, and were spread ratably over 436,000 units. Hmmm - how dangerous do you think one Sarge car would be with 1/218,000th of a can of paint on it? This event was one of the sparks that triggered the mania leading to the CPSIA - the same mania that now sweeps up libraries.

This is something more than just transformation of our society into a bubblewrap culture. It is the overlawyering of all that we do (a tip of the hat to Walter Olson), with new liability popping up everywhere. Look at the media coverage of this issue - you see again and again merchants stating that the prospect of liability is driving them out of the market or away from the children's market. Is this a good trade-off for our society? No, of course not. It might be GREAT for the trial bar, insurance companies, testing and equipment companies and other organizations primed to bottom feed on the paranoia and liabilities of this law, but for the rest of us, it's death. No one can deal with the new risks and inflexibility of the law. I also happen to think that a Mother-May-I form of law will never work, can never work. It is inconsistent with commerce in low-priced products like most children's products. If we want that for our society, kiss specialty markets like education goodbye.

Please take a moment and write Mr. Dingell this week. It's very important.

Rick

CPSIA - Keynote Speech of Nancy Nord at ICPHSO 2-26-09

At last week's ICPHSO conference (see http://www.icphso.org/), Chairman Nancy Nord of the CPSC gave the keynote address about the CPSIA on Thursday February 26. Her remarks give a good snapshot of the new reality facing the regulators - and you.

While noting the importance of not challenging the motives of parties on either side of this debate, Ms. Nord pointed to one-sided media coverage from important outlets like the New York Times. As you may know, in the days preceding her address, the New York Times published a blistering attack on the CPSC and Ms. Nord in an editorial. [See http://www.nytimes.com/2009/02/18/opinion/18wed3.html?_r=1&scp=1&sq=fabulous%20toy&st=cse.] Ms. Nord correctly pointed out that the New York Times had neglected to publish virtually any news on the CPSIA for numerous weeks prior to the editorial and had never addressed the issues confronting small businesses under the law. [Ed. Note: All the News That's Fit to Print, huh?]

Ms. Nord defended the ongoing activities of the CPSC while attempting to process the massive burden of the CPSIA, including implementation of other sweeping new legislation on pool safety and gas cans, various investigations and important enforcement activities. [Ed. Note: In other words, while Rome burned, the CPSC wasn't just fiddling - like some people . . . .] This is an important point, as Chairman Nord observes, the burdens on this agency skyrocketed without the receipt of ONE ADDITIONAL PENNY of new funding. Their tasks were overwhelming and they received no help whatsoever.

In her remarks, Nord reminded the audience that the problems of the CPSIA are being ignored by Congress which is leading to ridicule overseas. [See http://www.guardian.co.uk/books/booksblog/2009/feb/20/kalder-childrens-books-lead-panic.] [Ed. Note: It is happening here, too. See http://learningresourcesinc.blogspot.com/2009/03/cpsia-chicago-tribune-is-making-fun-of.html.]

Ms. Nord moved on to address the problems in the new safety law. She bristled at the removal of discretion from the CPSC in administering safety issues, and noted importantly that concepts of risk and exposure have been removed from our legal system FOR THE FIRST TIME. The retroactivity provisions of the law are threatening the future of many companies, BUT the Commission no longer has the legal authority to change the rules. The deadlines and rulemaking demands are going to be impossible to meet as well. [Ed. Note: And the rulemaking deluge is also impossible to keep up with - for businesses subject to these new rules. See http://learningresourcesinc.blogspot.com/2009/02/cpsia-information-overload.html.]

After reciting a list of the agency's under-appreciated implementation achievements since the CPSIA descended upon it, Ms. Nord noted chillingly that the CPSC cannot change the law and WILL enforce it as written. But she wants a law that both protects children and allows businesses to grow and prosper.

Step One, she says, is for Congress and CPSC to have an open and honest dialogue. Congress has stated publicly that the CPSC isn't doing its job to implement this law. She noted that, amazingly, a Congressional staffer had actually (incorrectly) asserted to her that small businesses won't be held liable under the CPSIA if they don't know they are breaching it. [Ed. Note: I have had this EXACT interaction TWICE with the same key staffer, who asserted this point INCORRECTLY with some energy. I addressed this serious misreading of the law in a letter dated January 12. See http://learningresourcesinc.blogspot.com/2009/01/cpsia-confusion-and-chaos.html.]

Nord calls for a more constructive dialogue with Congress which addresses the urgent need to change the law in fundamental ways. In particular, Ms. Nord calls for revocation of the retroactivity provision and a sharp revision of the exclusions/exemption process. In the 35-year existence of the CPSC, there has been a clear, consistent and unambiguous understanding that new standards apply PROSPECTIVELY. She also notes that in the wide net of the CPSIA, far too many products are being pulled into the law that NO ONE would contend are unsafe or in any way dangerous. She wants the authority to exclude such items from the law. She mentioned obvious cases like ATVs and motorbikes, which even CPSIA Congressional conferees have begged to be excluded. [Ed. Note: Sorry, guys, read your law next time before you sign it.]

In her vision for the future, she believes the agency should work toward better recall effectiveness and a stronger overseas presence. A China office for the CPSC is going through the approval process, which will help a great deal. All the agency needs now is some $$$. Data mining will help spot problems earlier, and a new lab will modernize their investigation processing and technical capabilities.

In closing, Chairman Nord noted the sad case of the school library in Nebraska that is cordoning off books produced before 1985 (http://www.ncnewspress.com/articles/2009/02/20/news/doc499ed094480fd323904423.txt) and called for action on the law with a sense of urgency.

The significance of Chairman Nord's speech is clear. We are not all dreaming - the problems in this law are very real and they are severe. Ms. Nord could not in the course of a keynote speech tick off every serious problem under the law - trust me, there's more -but she went to some trouble to clarify the agency's dilemma under the CPSIA. The CPSC is stuck writing rules to implement a distasteful law that does not work and will not lead to better "safety" (translated: fewer incidents of injury and lower risk of injury). Congress is deaf to her pleas - and our pleas - preferring, like the New York Times, to use her as a whipping boy. Apparently, Shakespeare had it right - don't kill the messenger! As Congress whiles away the hours waiting for a new Chairman to tell them what Ms. Nord already told them and as we have put into print time and again, the economy falters (Dow under 6700 and Citibank is currently trading under a buck) and the vitally important businesses supporting the children's product industry are going down . . . the . . . drain.

Guys, this is a call to action. We need to rouse our Congressmen, let them feel your pain. It's really now or never. If your business is your life's work, or your income pays your mortgage, or you love your kid's dirt bike or desperately need educational products to homeschool your children, there's no time to lose. Get out there and be heard!

Rick

CPSIA - It Has Come to This . . . .

Here is the American Library Association's Call to Action in which they instruct libraries NOT to throw out their books because of the CPSIA. Do you like living in the surreal world as much as I do? I think Big Brother would be very gratified to know that discarding books has become a big issue in America now. Stupid me, I always thought the "dangerous" part of a book is the WORDS - no, in fact, it's just the ink! Apparently I misunderstood why people have been burning books over the years . . . .

Rick


http://www.ala.org/ala/mgrps/divs/alsc/issuesadv/ALA_print_layout_1_526949_526949.cfm

It's time to contact the Consumer Product Safety Commission regarding CPSIA

1/22/2009 Call to Action!

It's time to contact the Consumer Product Safety Commission regarding the implications for libaries of the Consumer Product Safety Improvement Act (CPSIA).

Sample text of a letter to fax or mail to the CPSC(also cc: your elected officials!)

It is not necessary at this time to make plans to either close the library, or remove materials from the shelves. The action needed now is communicating to the powers-that-be that it is essential to exempt books and/or libraries from this law. [Emphasis added]

From the ALA Washington Office:

A public meeting was held January 22 with Kristina Hatlelid, Directorate for Health Sciences, and other Consumer Product Safety Commission (CPSC) staff to allow Allan Robert Adler, of the Association of American Publishers, and major publishing companies to discuss the lead content of books. The meeting was a time for the publishing companies to explain their research to the CPSC staff that proves that normal books (non-play, paper books) do not contain lead in the amount specified under the CPSIA. The publishing companies have compiled a group of 300 test results that can be viewed here.

After the meeting, Cheryl Falvey, General Counsel for the CPSC, stated that a decision should be made by the first week of February. She advised libraries not to take any action at this time, and we are hopeful that the Commission’s decision will exempt libraries.

Even with her assurances, we must let the CPSC know how important an issue this is to libraries. You can visit their Web site, found here, to submit your comments to the Commission. Explain to the Commission that it is simply impossible for libraries to remove all children’s books from the shelves and/or ban children under 12 from the library and still provide the level of service that is needed.

Please feel free to use the sample language here, but personalize it to make your comments known. Studies have shown that individual letters are significantly more effective than form letters, so let’s make sure they understand how important their action will be.

As always, thank you for all that you do. The only way we will be successful in ensuring that children will have access to safe books is with a strong grassroots effort. Your comments to the CPSC need to be submitted as soon as possible, so please tell all your friends and family – we need as many people as possible to communicate that this oversight could have lasting ramifications on our children and our communities.

CPSIA Confusion and Chaos

From: Rick Woldenberg
Sent: Mon 1/12/2009 11:33 PM
To: 'Christian.Fjeld@mail.house.gov'; 'robin.appleberry@mail.house.gov'
Cc: 'brian.mccullough@mail.house.gov'; 'shannon.weinberg@mail.house.gov'; 'william.carty@mail.house.gov'; 'mjg@brown-gidding.com'; Etienne Veber; 'challengeandfun@gmail.com'; 'kathleen@fashion-incubator.com'; 'Stephen Lamar (slamar@apparelandfootwear.org)'; 'Nancy Nord (nnord@cpsc.gov)'; 'Joe Martyak (jmartyak@cpsc.gov)'; 'Mary Toro (MToro@cpsc.gov)'; 'tmoore@cpsc.gov'; 'Patrick Magnuson (patrick.magnuson@mail.house.gov)'; 'Carter Keithley (ckeithley@toy-tia.org)'; 'Rick Locker (fblocker@LockerLaw.com)'; 'Desmond, Edward'; 'David Callet (calletd@gtlaw.com)'; 'ravitz.georgia@arentfox.com'; Dennis Goldman; 'Pamela Gilbert (pamelag@cuneolaw.com)'; 'Robert Adler'; 'Dan Marshall (dan@peapods.com)'; 'erik.lieberman@mail.house.gov'; cfalvey@cpsc.gov; Judy Bailey (judith.bailey@mail.house.gov); adele@narts.org; kmchugh@astratoy.org
Subject: CPSIA Confusion and Chaos

Christian and Robin,

I know you will want to read this article from the Boston Phoenix (http://thephoenix.com/Boston/News/74940-Congress-bans-kids-from-libraries/). This article highlights the now familiar problematic themes of the CPSIA:

a. Disruption of routine trade. In this case, libraries make the legitimate point that lending books is a form of selling. If you can't sell a book violating the CPSIA, presumably you can't lend it either. That implies no more libraries. This fits well with the well-documented future absence from the marketplace of telescopes and microscopes. As a member of the education community, I have a deep concern about the disruption of our education system under the CPSIA and am shocked that Congress seems so immune to this direct threat to our elementary educational system.

b. Chaos in the marketplace. The article cites a demand from Amazon.com to its vendors for certification by January 15 or face a mass return of merchandise - all at the vendors' expense, of course. Given the billions of dollars of trade with Amazon, this is presumably a serious concern to many companies. It also represents a golden opportunity for Amazon to lighten up on inventory after the holidays (nice for them). You have previously been advised of similar moves by other mass merchants. This will result in all-out commercial war and almost certainly major litigation, starting soon.

c. Counter-intuitive rules being imposed under the CPSIA. The very notion that books are a potential health hazard has many people scratching their heads. A reasonable question is raised: How did Congress become aware of a major national health risk that the trade, the public and the CPSC didn't know about? How did that knowledge make its way to Congress without any publisher finding out? Of course, this is not the only industry facing head-scratching rules. The thrift store industry, even after the recent advice from the CPSC, is left in a perilous position. I can assure you the education industry is in disarray, too. [I have raised the issue of science education numerous times in numerous settings.] The implementing rules have people asking why so many items are being regulated even though the CPSC acknowledges that they are very likely lead-free. This problem flows from an overly-broad law.

d. Confusion, confusion, confusion. It seems that many people are deeply troubled and confused about the law. Many legitimate questions have been posed because the law prohibits many normal and safe activities. The CPSC seems to be the party to blame this week. Nonetheless, it appears that confusion is persisting. Could this relate to the law itself? Is it really clear that everyone who is protesting this law is somehow unable to read and understand the law? Is that explanation plausible, or is that belief simply a refusal to face reality?

An interesting related question is whether any company regulated by this law needs to check existing inventory for compliance as of February 10. I have been informed that the law does not impose a direct requirement to inspect or certify but, then again, the CPSC clearly indicates that violations of the standards for existing inventory will be prosecuted. The issue seems to turn on the meaning of "knowingly" under the CPSA, as "knowledge" is required to be subject to the draconian penalties of the CPSIA. Is the meaning of "knowingly" unambiguous under the law? The definition is found at 15 U.S.C. 2069(d) and is old law:

"(d) “Knowingly” defined. As used in the first sentence of subsection (a)(1) of this section, the term “knowingly” means (1) the having of actual knowledge, or (2) the presumed having of knowledge deemed to be possessed by a reasonable man who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations."

This definition of "knowingly" means that due care must be taken by anyone to avoid penalties under the law. "Due care" is a serious obligation and a serious undertaking. This is why there is a national shortage of XRF guns now, as panicked manufacturers and retailers attempt to cover this due care obligation 24/7 with February 10 rapidly approaching. Libraries presumably need to scan every book to comply with the CPSIA. No one can safely or appropriately "guess: whether their goods comply or not under the CPSIA. I feel sorry for thrift stores.

I hope the magnitude of these problems will eventually overcome any pride of authorship in this law, and lead to action in resolving these issues. A lot is at stake.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
rwoldenberg@learningresources.com


Congress bans kids from libraries?

New safety law may prohibit children under 12 from libraries – or make many books illegal By
LISSA HARRIS January 9, 2009 Recommended By 11 People

Is it possible that Congress has just inadvertently turned millions of children’s books into contraband? At the moment, anything seems possible with regard to the sprawling, 62-page Consumer Product Safety Improvement Act (CPSIA), passed this past August with overwhelming margins in both the House (424-1) and the Senate (89-3).

The CPSIA, intended to keep lead out of toys, may well also keep books out of libraries, says Emily Sheketoff, associate executive director of

“We are very busy trying to come up with a way to make it not apply to libraries,” said Sheketoff. But unless she succeeds in lobbying Capitol Hill for an exemption, she believes libraries have two choices under the CPSIA: “Either they take all the children’s books off the shelves,” she says, “or they ban children from the library.”

On February 10, the new law gets teeth. After that day, all products for children under 12 — books, games, toys, sports equipment, furniture, clothes, DVDs, and just about every other conceivable children’s gadget and gewgaw — must be tested for lead, and fall below a new 600 part-per-million limit, or face the landfill. Thanks to a September 12 memo from the Consumer Product Safety Commission (CPSC), the lead limit applies not only to new products, but also to inventory already on store shelves.

“Under this new regime, you are suspect until proven safe,” says Allan Adler, the American Association of Publishers’ vice president for legal and governmental affairs.

As the February 10 deadline approaches, the CPSIA has been causing increasing consternation — and, at times, hysteria — among makers and sellers of children’s products, who are just beginning to realize the financial and logistical nightmare they face in trying to comply. Lead testing promises to be expensive — from several hundred to several thousand dollars per test, depending on the product. And each batch of each item must be tracked and tested, making compliance brutally expensive for items with small runs.

Historically, books have been considered more dangerous to read than to eat. Regardless, a memo from the CPSC, issued the day before Christmas Eve, explicitly quashed any hope that books might escape the new law. To make matters worse, even publishers that have already had their products tested for lead will be forced to retest. In the same memo, existing test results based on “soluble lead” — a measure of whether lead will migrate out of a product — were rejected by the CPSC because they did not measure “total lead content.”

The CPSC has not issued any ruling on whether libraries, schools, and other institutions that loan — rather than sell — books will be subject to the law. Without such clear guidance, says Adler, schools and libraries should assume they have to comply.

“If [the CPSC is] going to say that we’re being alarmist,” says Adler, “that’s fine, as long as they provide an explanation that we can understand and rely on. That’s what’s been missing from this entire discussion.”

Regardless of whether libraries and schools are affected, the CPSIA is poised to take a massive bite out of the book industry. Large retailers are beginning to demand that publishers comply, even in advance of the law’s deadline. This Wednesday, Amazon.com sent a general letter informing its vendors that, if they did not certify their products by January 15, the items would be returned at the sellers’ expense.

Like their peers in the toy and garment industries, many sellers of children’s books are just beginning to try to understand how the CPSIA will affect their businesses.

“All of us are totally in the dark,” says Terri Schmitz, owner of the Children’s Book Shop in Brookline. “I can’t make a decision, because I don’t know what the regulations are. We’re all sort of in limbo here.”

Libraries may yet escape unscathed. The CPSIA is changing rapidly as the CPSC scrambles to clarify the confusing lead law before it goes into effect. Thrift stores, consignment shops, and other used-goods stores got a partial reprieve yesterday in a hastily drafted CPSC memo: While resellers still face stiff civil and criminal penalties if they sell lead-contaminated items, used goods will not have to be tested for lead.

In lieu of actual testing, the memo urged resellers to “pay special attention to certain product categories,” like jewelry and painted toys, which are “likely to have lead content.”

Which prompts the obvious question: If other children’s products aren’t likely to contain lead, why is the CSPC regulating them?

From the sweeping language of the law, it appears Congress left them no choice. The Act covers any “consumer product designed or intended primarily for children 12 years of age and younger.”

“Consider for a minute that a twelve-year-old is a junior high school student,” says Adler. “This is not somebody who is likely to be chewing or sucking on a book.”