CPSIA - NSSEA Calls for Letters on ECADA

The NSSEA (National School Supply & Equipment Association) is calling for letters in support of the pending CPSIA Amendment legislation (ECADA).  Please send the below letters BY FAX to your House Representative and to members of the House Committee on Energy and Commerce.  You can get the fax numbers off each Representative's website.  The mark-up may happen as soon as Monday June 20th (but is not scheduled yet to my knowledge).

Now's the time to stand up and be counted!!!  There are two forms of letter below (Manufacturer and Dealer/Retailer).  Please modify as appropriate.


Letter from Manufacturers:

Dear XXXXXX:

I am writing as a constituent and concerned member of the National School Supply & Equipment Association (NSSEA) to express my support for HR 1939, the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). We urge you to support this important bill that fixes problems created by the Consumer Product Safety Improvement Act (CPSIA) while maintaining the core provisions of this law that ensures the safety of consumers.

[INSERT INFORMATION ABOUT YOUR BUSINESS, INCLUDING NUMBER OF EMPLOYEES]

The safety of our products and the safety of our customers are our top priorities. Unfortunately, we have encountered many problems in trying to comply with the well intentioned but overly burdensome CPSIA. We have been forced to spend thousands of dollars for unnecessary lead and phthalate testing and continue to deal with compliance programs that change multiple times to meet constantly changing rules. ECADA provides common sense reform to sections of CPSIA which have burdened our industry during these challenging economic times. Given your strong record as a friend of small business and manufacturers, I hope that I can count on your support for this bill.

A costly new rule mandating a burdensome, unreasonable testing regime, the lifting of the stay on third party testing for lead substrates, and the retroactive application of a tighter lead standard despite overwhelming evidence showing that this new limit is not technologically feasible are just several challenges that my company will face this year if the reforms in ECADA are not approved by Congress soon. ECADA reduces the most excessive regulatory burdens created by CPSIA while maintaining protection for consumers. The bill enhances the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and prioritize testing based on cost-benefit analysis, and improves the CPSC’s public database by ensuring more accurate information.

As manufacturers and small business struggle to recover from the worst recession in decades, it is vital that government does not impose costly and unnecessary regulations that have no positive impact and hinder the fragile recovery. I urge you to vote for ECADA to ensure that companies like mine can continue to provide quality products and services that are so important to our children's education.

Sincerely,

XXXXXXXX

 
Letter from Dealers/Retailers:
 
Dear XXXXXX:
 
I am writing as a constituent and concerned member of the National School Supply & Equipment Association (NSSEA) to express my support for HR 1939, the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). We urge you to support this important bill that fixes problems created by the Consumer Product Safety Improvement Act (CPSIA) while maintaining the core provisions of this law that ensures the safety of consumers.

[INSERT INFORMATION ABOUT YOUR BUSINESS, INCLUDING NUMBER OF EMPLOYEES]

The safety of our products and the safety of our customers are our top priorities. Unfortunately, we have encountered many problems in trying to comply with the well intentioned but overly burdensome CPSIA. As a distributor, we fear that the range of products offered by our suppliers will continue to narrow due to the costs manufacturers incur for unnecessary lead and phthalate testing. In turn, the needs of American students will be unmet, including those children with disabilities and special learning needs, because fewer specialized products will be available to our customers.

CPSIA has caused considerable confusion in the marketplace due to the constantly changing rules and regulations associated with the law. ECADA reduces the most excessive regulatory burdens created by CPSIA while maintaining protection for consumers. The bill provides common sense reform to sections of CPSIA which have burdened our industry during these challenging economic times. The bill enhances the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and prioritize testing based on cost-benefit analysis, and improves the CPSC’s public database by ensuring more accurate information.

Given your strong record as a friend of small business and manufacturing, I hope that I can count on your support for this bill. As small business struggles to recover from the worst recession in decades, it is vital that government does not impose costly and unnecessary regulations that have no positive impact and hinder the fragile recovery. I urge you to vote for ECADA to ensure that companies like mine can continue to provide quality products and services that are so important to our children's education.

Sincerely,

XXXXXXXX

CPSIA - Why Have Five CPSC Commissioners?

Last night I was accused of being politically naive for having written:

"It would appear that the 'governing principle' demonstrated by yesterday's passage of the health care bill applies here. There is little need for Democrats to try to build a consensus [on the Waxman Amendment]. They have control, so bipartisan support will only be achieved when those with opposing views capitulate or are outvoted. Brave New World, I feel so safe now. . . ."

I might be naive, I suppose. Who knows, it's not for me to judge. I was informed that this is how things work in Washington and the Golden Rule applies - he who has the gold rules.

Nonetheless I think there's a larger point here. If you scroll back to the Halcyon days of 2008, you may recall the apparently urgent need to return to a "full" Commission of five CPSC Commissioners. It was asserted that somehow a Commission of three Commissioners just would not be adequate to meet the challenges of a modern world. At the time because of a vacancy, there were only two Commissioners (one Democrat and one Republican). Republican Nancy Nord, the then Acting Chairman, was savaged by Democrats for "gridlock" since the only possible explanation for the slow progress implementing the CPSIA must have been "foot dragging". Ah, how the passage of time gives us all new perspective . . . . Anyhow, with the smaller Commission, it was said that there wasn't enough dialogue, fresh perspectives, blah blah blah.

The gridlock was all a hoax, as Nord and Moore voted together on all but one CPSIA decision in their tenure together. While the issues may have been fractious and they might have rarely shared the same outlook, they still managed to find a way to vote together. The problems, the "unintended consequences", were beyond the Commission's ability to resolve. It was Congress' fault, not theirs.

Now with a full Commission of five Commissioners, three Democrat and two Republican, we find ourselves in a far more stratified and partisan situation where dialogue is often strained or nonexistent and voting blocks dominate decisions. Sadly, consensus building does not seem to be the modus operandi of this Commission or of this Chairman. With three certain votes, the Dems on the Commission hardly need to broker agreements or compromise to get to "yes". They control the Commission, and will do as they please. As Tenenbaum's and Adler's joint comments on the Waxman Amendment and the Tenenbaum/Adler/Moore joint comments on the Civil Penalty Factors indicate, the Dems are making no pretense about their controlling voting block. Pelosi and Waxman must love it.

It is a shame that this partisan situation has arisen at the Commission. After all, the CPSC is supposed to be about safety, not politics. The division along party lines smacks of closed doors and minds already made up. Reasonable positions are being discounted by the Dems for political reasons, creating many losers but few winners. It is certain to produce lesser decisions. The upside of a full Commission is being squandered without the Chairman's commitment to seek consensus.

Of course, there is far less need to open up or listen when control of the outcome is certain. Debate becomes a kind of charade mainly for public consumption. As has been apparent in the health care debate, frustration builds quickly when absolute power is used coercively. I heard someone on CNBC refer to the process leading to the passage of that bill as "dictating, not governing". This kind of resentment of the CPSC is also mounting as the "have not's" in the regulated community find themselves with fewer and fewer options. We did not sign up for a dictatorship.

This is a sad reflection of the increasingly polarized world that followed Mr. Waxman into his Chairmanship of the House Committee on Energy and Commerce. He governs by "take it or leave it" as in his two CPSIA amendments. This is not the only way to get things done, however, as the Dingell era demonstrated.

Naive? That's the reality that I see, unfortunately.

CPSIA - The New Waxman Amendment Analyzed

On Friday, House Democrats began to circulate a discussion draft of a new amendment to the CPSIA. This draft follows the abortive effort by Chairman Henry Waxman of the House Committee on Energy and Commerce to slip a CPSIA amendment to his own liking into omnibus legislation last December. [That effort was disclosed and discussed in this space from December 11-16, 2009.] The crash-and-burn of the first Waxman amendment created a new dynamic in CPSIA negotiations as it was the first (tacit) public acknowledgement by Waxman that the law was flawed AND that the CPSC could not fix it by itself. The failure of the secret amendment effort also showed that Mr. Waxman isn't invincible. So, a step in the right direction.

Recently, in the wake of the January 15th recommendations of the CPSC Commission, the Dems reignited the simmering discussion of CPSIA changes by engaging various stakeholders on how the first Waxman amendment could be improved. This process was constrained by the Dems' insistence that comments be in the form of changes to the first Waxman amendment, thereby eliminating anything too "blue sky". Consistent with the recent (and short-lived) post-Massachusetts Dem preference for bipartisan "cooperation", the Dems actually asked House Republicans what they thought. Let's just say the Republicans see some basic flaws in the law. . . . Anyhow, the Republicans having provided their feedback, largely rebuffed, this draft emerged.

The procedural process forward is unclear. The standard (and appropriate) process would be a hearing followed by a "mark-up". The Senate also has something to say on this legislation (their position is not clear although Senate Dems more readily acknowledge the need to fix the law). It remains to be seen whether Waxman will allow a real hearing on the CPSIA to take place. Dissenting views are not well-tolerated in this era of Congress. Anyhow, the Dems are asking stakeholders to send comments by this Friday.

I intend to discuss this proposed legislation in several essays. In this essay, I would like to discuss global issues. I will return to discuss the specifics of the law, notably the treatment of Section 101(b), in later posts.

A few thoughts, generally:

a. The amendment dodges most of the serious issues in the law. My list of changes is comprehensive, and the draft legislation avoids most of it. This amendment makes no effort to respond broadly to the well-documented flaws in the law. No one can argue anymore that the CPSC can fix these problems. The legislation reads (to me) like the position of someone almost completely in denial.

Let's face FACTS - the CPSIA was passed on August 14, 2008. It is now March 14, 2010. That's a long time. The CPSC has blown countless deadlines, and has failed to resolve MANY critical issues so far, like the phthalates test standard, the 15 month rule and so on. They are working around the clock. This thing is not going to fix itself, and the agency's future is literally at stake.

The Dems refusal to face up to these issues is a betrayal of you, your customers and your marketplace.

b. You might ask - WHY are the Dems avoiding all of these serious issues? Are they deaf?

I think the answer is that they are hardly deaf but have little interest in opposing viewpoints. The CPSIA is their legacy and as such, no amendment will be blessed by them if it admits a defect in their original thinking or their asserted Perfect Legislative Process. An "acceptable" amendment must therefore pay homage to the original law and its structure. By working within the law's original structure, the Dems ensure that the basic defects will survive amendment - and the consequences to your business, your market and to the regulators themselves will remain devastating.

[The Dems' "legacy" also survives if they can delay change long enough to make it impractical or impossible to unwind all rules and regulations implementing the misguided CPSIA. After all, we business people have no choice but to upend our businesses to follow these rules, and would incur more damaging expense to change our processes a second time. There seems little doubt that the forces behind the CPSIA want the law's infrastructure to be impossible to untangle by future Congresses or CPSC Commissions.]

The Dems' homage to the original law is evident in several places. For instance, the concept of a "low volume manufacturer" is designed to provide a very (VERY) limited opportunity to craft an exception to the original testing requirements. Even so, the language clearly states that exceptions benefiting the LVMs must still "assure certification based on compliance with the relevant consumer product safety standards." [Emphasis added.] In other words, no exception will be given to the little guys from the law's basic premise that manufacturers must prove compliance before sale. [More on LVMs later.]

The proposed rules on the so-called "functional purpose" exception also kowtows to the law's concept that everyone must ask for permission to be excused from lead requirements. In other words, the Dems reject the notion that the law can be narrowed rationally and appropriately without a burdensome bureaucratic process. Even action by the agency on its own initiative will be a major ordeal. The Dems know (because they have been told) that the exception process is effectively a closed door for all but the most well-capitalized companies. You may interpret the legislative language as the Dems' response to this small business issue.

Another good example of the Dems' sticking with the original law's structure is the use of the word "practicable" in the Section 101(b) changes. This change is the doorway for the ATV'rs and book publishers to argue for exceptions to the lead-in-substrate standards. I am told that this word was chosen because of a Supreme Court decision (that I have not read) holding that "practicable" incorporates concepts of economics. Ah, I see. In other words, this language is a way to make the law look just like the original one, but still provide a faint hope for business people that they can somehow wriggle out of ridiculous lead-in-substrate restrictions. It's obscure, to say the least, but leaves the original legislative structure in place - the Dems' principal goal.

c. The new amendment ADDS more complexity to an already blindingly complex law. I have written about complexity numerous times, and recently posted a video explaining the frustrating challenge of trying to understand this law fully. Complexity in this case does not reflect the difficulty in creating a safe market for children's products. Actually, that issue is long-resolved. The complexity stems entirely from a defective legal structure and its consequences. If the Dems insist on keeping the original CPSIA structure in place, you must get used to complexity spawning more complexity in your business life. It will only get worse.

This is what Big Government looks like. Hope you like it.

d. CRITICAL ISSUES are absent and unaddressed in this legislation. Examples:

• Risk Assessment by the CPSC and/or the Commission.
• Changes in age limits for the lead standards and phthalates ban.
• Narrowing of the scope of "Children's Product" to eliminate many categories of products unthinkingly pulled into this law by its overly broad language.
• True reform to protect small businesses.
• Tracking labels relief.

And so on. As noted above, to take these steps would mean acknowledging that the original law was grossly defective. The Dems would rather eat lead-free glass than admit their career achievement was fundamentally defective. Ironically, the Republicans have no such reluctance, despite voting for the original law. The sad prospect is that unless the Dems have a change of outlook (soon), real reform may need to wait for a change in gavel (bye, bye, Mr. Waxman).

Hence my excitement over the prospect of voting in November.

More to follow.

CPSIA - Waxman's New Amendment Progress Report

In the last couple weeks, Rep. Henry Waxman's staff on the House Committee on Energy and Commerce has been approaching Republicans and various stakeholders for feedback for a "bipartisan" approach to fixing the CPSIA. In these discussions, the staff has acknowledged that the law is "flawed" and requires surgery, not just tweaks. An interim (artificial) deadline of this week has been established for comments on their planned amendment. A draft of this amendment has not seen the light of day yet. No one knows what it will say.

While this may sound "good", the Waxman staffers have also attempted to constrain the development of the amendment. For starters, they insist that the amendment be based on the failed Waxman amendment of last December. [Last year's try was covered in several posts in my blog from December 11-16.] They have also drawn quite a few lines in the sand, such as no change to age limits in Children's Products. They favor exemptions for individual product categories or even individual products, a Swiss Cheese approach. [I hate this approach, as does just about everyone else other than the Waxmanites.]

The Waxmanites seem interested in helping out the ATV'rs. Apparently, the legislative logic is that if the amendment caters to the ATV'rs, who have been quite noisy and enjoy wide support among members of Congress, no one will be able to vote against the amendment for political reasons. Thus, the makings of a Democrat victory and the appearance of bipartisanship. I can see it now: "The two parties worked together and fixed the parts of the law that caused unintended consequences. All is well!"

Among the "have-nots" in this approach:

• "Common Sense". This case-by-case or product-by-product approach means that the Waxmanites refuse to even consider trusting the CPSC to do its job and assess risk for itself. The only people the Waxmanites and consumer groups can trust are . . . are . . . themselves. You won't be able to draw a line between those that are "in" and those that are "out" in any rational way.
• Rhinestones. On the subject of rhinestones, my understanding is that they are so resolute on keeping these innocent stones in the bill that they would be willing to write rhinestones in explicitly. This is the opposite of case-by-case exclusion - it's a case-by-case INCLUSION.
• Educational Products. While the Waxmanites say they want to exclude educational products, they can't figure out how to do it since you might use an educational product in your home. Horrors! Again, without a simple notion of what's safe and what's not, how do you expect a sensible rule to emerge from this primordial goo?
• Bikes. They really want to figure out how to help bikes but can't seem to do it. For this reason, they are chatting about an indoor/outdoor exclusion. In other words, and I am not kidding, they have suggested a rule that if you keep something in your garage, it's "out", and if you keep it indoors, it's "in". So everybody - move all your toys, children's clothing and shoes, furniture, books, pens, appliances and so on into your garage, quick, so you can qualify for this great new exemption! [Try to resist holding a garage sale, though, because that presents special risks under the law!]

Not one to look a gift horse in the mouth, I am happy they are thinking of an amendment, but I am not happy that we still find ourselves adrift without any sense of what's safe and what's not. It is hard to foresee an amendment that does much good with this kind of inflexibility. Bipartisanship promises to be hard to obtain or a sham staged by Democrats for their own benefit.

Remarkably, a hidden issue that may weigh on these proceedings is the growing awareness of paralysis at the CPSC. The agency saw a massive increase in its budget last year, to match its massive new responsibilities, but still finds itself mired in open projects and conflicting priorities. Simple things are taking forever. Agency paralysis cannot be prevented in this environment without a significant paring of CPSIA priorities, something that the Waxmanites have a hard time conceding. And Obama won't give the agency more money, so they're stuck. And we're stuck.

That's not where you want to be.

Something to think about as we go forward:

1. Principle One: Your silence is deemed to be your approval. Silence = approval. You must swing from the rafters to get their attention, too. No, don't do that - too dangerous.
2. Principle Two: An unopposed view, particularly a document with footnotes, is considered definitive. After all, if it were wrong, why didn't anyone point it out, with footnotes? This is really how the Waxmanites think.

You need to keep these principles in mind. Your loud involvement can help a lot.

To Be Continued . . . .

CPSIA - Eroding Trust in Our Leaders

The CPSIA spectacle over the past two years of Democratic leadership in Congress has been a sign of the times, something that revealed basic problems with these new stewards of our futures. Not only have the Democrats alone stood up against altering the CPSIA, the source of well-documented misery and phantom benefits, but they have ruled with an iron fist in an attempt to suffocate opposition. Please note that for two years, Congress under the leadership of Californians Henry Waxman and Nancy Pelosi has successfully resisted having a hearing about this law with stakeholder witnesses who could shed light on the problems (rather than the joke of hearing last Fall featuring one witness, a newly-appointed Party-loyalist Chairman of the CPSC). The message control and forum management has been revolting. Despite the fact that these folks work for us, there seems to be NOTHING we can do about this sham process.

Readers of this blog are well-aware of the mounting ANGER over this astounding indifference to the facts of the awful CPSIA and to our suffering. The latest low point engineered by Democrats is the Commission's failure to approve public discussion of the recommended changes to the CPSIA, a report due next Friday. This is no small issue - read my post from yesterday for a summary of legal changes necessary to restore sanity to safety administration in children's products - yet the Dems apparently feel discussion of these issues in front of you might somehow limit their discretion. Huh? It is very tempting to believe that handlers from Congress (Guess Who) have given strict instructions to the Dem Commissioners that there will be NO public debate of these issues. And there won't.

These blows to our faith in government raise serious questions of character. Leadership is accountable to the American public. A failure to operate openly and with an open mind is intolerable. People will not forget.

I understand that bipartisan meetings between Congressional staffers and the CPSC have been cancelled or postponed until the report is issued. Furthermore, I believe that Mr. Waxman is already circulating new language for his amendment redux quietly, sans hearing or public discussion. Connect the dots - the Democrats have decided what the report will say (they have the votes to ram it through), it has been pre-approved by Guess Who (which means it will not fix the CPSIA because the Dems on the Hill don't care about our little problems) and a public discussion between Commissioners is pointless. As the self-appointed Prince of "Darkness", Bob Adler, put it, "I think the positions at this point are pretty firmly set." Right - set by Guess Who. Discussion in public will only embarrass the Dems on the Commission - they are only allowed to read from the script and will be unable to defend loopy positions without looking loopy themselves.

If all of this has not fully eroded trust in these folks, let's not forget that we are not living in a vacuum. The behavior of the Dems on other issues is part of the milieu. These same "leaders" are making other messes for us to regard, such as Harry Reid's "apology" for incredibly racist remarks about Obama's skin color and "dialect". OMG, can you believe the shamelessness? The Dems made everything nicey-nice by Obama and Al Sharpton forgiving Reid's "poor choice of words". Please, you can't say something like that without thinking it, and if you think it, you are a bigot. Plain and simple. No apology will cover up this disgusting fact. ANY person in a minority will tell you that prejudice is deeply rooted, and no apology will rid the system of that poison. Reid's apology rings rather hollow to me. And he's the voice of the Dems in the Senate.

And then there's health care. To protect you, Mr. Obama and the jackals crying out for health care reform have insisted on taxing "Cadillac" health care plans. This sounds "bad", right - like someone's getting something they don't deserve, all at your expense. More benefits for "fat cats", right? A great sound bite for the saviors to make their case . . . .

That's what Obama and the other Democratic do-gooders are all about, making things fair for "regular" Americans, isn't it? Well, Fortune Magazine has a different slant on this critical term in the Obamacare plan - namely, that the tax on so-called "Cadillac" plans will mainly punish the elderly. Why? Well, here's a shocker, more expensive health care is generally health care delivered to sicker populations, like older Americans. Here's an example of a plan that crosses the Cadillac boundary: "Now to Medicare -- no Cadillac plan -- which will spend about $510 billion this year to cover fewer than 46 million people. That's more than $11,000 a person, well over the Cadillac threshold of $9,850 for single retirees 55 and up. And that's without counting Medigap coverage (for which I have no numbers), which would send the average higher." Right - Medicare, the health plan for older Americans. While the health care proposals do not tax Medicare, the math makes it clear that care for older populations costs more and may well be subject to the new tax.

I am sick of the misleading messaging, the manipulation, the indifference, the obstruction of this crop of Democrats. I have no idea if the CPSC Democratic leadership will rise to the occasion and do the right thing or whether the House and Senator Democrats will wake up to the terrible mess they made and take the appropriate steps to fix it or whether (as seems likely) the fix is in and we are cooked, but this much I DO know - I am sick of this treatment. I cannot support this kind of leadership and cannot abide by it.

The Democrats have made this mess entirely themselves. No one forced them to be so deaf and so indifferent. No one required their arrogance, high-handedness or insensitivity to the misery that they caused. When November 2 comes around and the American people exact their revenge, the party leadership will have no one to blame but themselves.

I look forward to that day.

CPSIA - Transparency, Tenenbaum/Adler-style!

In a truly creepy decision today, the Democrat-dominated CPSC Commission today voted down Anne Northup's motion to have a public debate of the agency's recommended changes to the CPSIA. The vote was 2-2 along party lines. [Party affiliation should NEVER be predictive of positions on safety.] By this vote, the Commission ensures that there will be no public airing of views on the agency's recommendations for amending the awful CPSIA before their report to Congress is due on January 15 (see below). Apparently, the general public's interest in understanding this critical debate was deemed by the Democrats to be a low priority.

It is ironic that the Democrats would choose to spurn the Government in the Sunshine Act ("Sunshine Act") so brazenly. The decision to leave Northup's item off the upcoming meeting agenda is not technically a violation of the Sunshine Act, but then again it is certainly NOT on the list of exceptions to the public meeting rule (5 U.S.C. 552(b)(c)). In my humble opinion, it is a clear violation of the spirit of the Sunshine Act and can hardly be characterized as "transparent" government. As Ms. Northup noted, the sponsors of the Sunshine Act would be appalled. So why did the Dems do it?

Before I recap and analyze of this incredible event, I would like to quote Inez Tenenbaum on the importance of "transparency" (emphasis added):

• CPSC Press Release (July 9, 2009): "Ms. Tenenbaum identified three major areas of focus for her common sense approach to serving as Chairman. 'First, I want CPSC to be more accessible and transparent to parents and consumers. By creating an electronic database of product incident reports that consumers can search and by collaborating with state and local agencies and consumer groups, we can give the public confidence that CPSC is working openly and in their best interest,' she stated."
• APEC Conference Keynote Address (August 1, 2009): "My regulatory philosophy embraces open dialogue, information sharing with all stakeholders, and a commitment to finding mutual interests. . . . Enforcement is actually one of my three top priorities as Chairman, along with government transparency and consumer education and advocacy."
• Statement Before the Subcommittee on Commerce, Trade, and Consumer Protection (September 10, 2009): "In my first two months leading the CPSC, I have focused on three key goals: transparency and openness to those we serve . . . ."
• Keynote Address, 3rd CPSC-AQSIQ Safety Summit (October 21, 2009): "I embrace open government, information sharing with all stakeholders, and a commitment to finding mutual interests."

With Ms. Tenenbaum's apparent commitment to "transparency", it should not be surprising that she originally moved to add an agenda item to discuss this very topic (apparently for today's brief meeting), and then somehow the decision was voted down 3-1, presumably Tenenbaum, Moore and Adler voting against, Northup voting for, and Nord on leave (she's back now). [I cannot find any record of this vote on the "wonderful" CPSC website and gave up, sorry.] So at one time at least, Tenenbaum was publicly calling for a public discussion of five Commissioners on this critical subject.

One must wonder who spoke to whom to get this flip flop accomplished. Assuming Ms. Tenenbaum meant what she said publicly about the need for "transparency", someone must have really put a wet blanket on the idea of publicly discussing this subject. I wonder who might have strong views on the wisdom of an unstaged, open discussion of these issues . . . .

Consider Ms. Northup's argument: This is one of the most critical issues to come before the Commission. The CPSIA has been controversial and difficult to work with two years now. The Appropriations Committee has asked us to give recommendations on how to change to the law. [See this link, pp. 33-34 for the actual instructions.] There is no disagreement that blood lead levels need to be a top priority in children's safety but none of the CDC, NIH or EPA point to children's products as a serious lead threat. The Sunshine Act prevents the Commissioners from meeting other than one-on-one without calling a public meeting, which means we can never sit down together to discuss these issues. The issues are too important to relegate to a game of "telephone". A hearing is the only way for the five of us to discuss this issue at one time.

Tenenbaum's response was telling: The Staff has been working night and day on this and everyone has had a chance to put in their comments. Each Commissioner has had some drafting responsibility. Each Commissioner has the right to submit their own statement to Congress and likewise to request to testify to present their own personal views. Given our ability to have "extensive discussions" one-on-one, this debate is best held in private. We should NOT have a public hearing on this subject.

Okay, are you persuaded? This is coming from Ms. Transparency, to judge from her many uses of that old chestnut in various speeches and testimony.

Nancy Nord made the point that the reason to have a Commission is to meet publicly and have discussions openly and transparently. Apparently this didn't persuade the Dems. Bob Adler amplified the "argument" against trusting the American public to listen in to the debate: After conceding that he would sound like the "Prince of Darkness", he stated that an open Commission hearing should involve give-and-take but a hearing on this topic would not involve deliberation but instead speeches telling him why he's wrong and the others are right. He said he was very comfortable with the current process because he knows everyone's views quite well and besides, so does the public via blogs, tweets, statements and so on. The minority Commissioners are not being "squelched". He said that a public meeting removes the ability to think out loud. "As soon as you say it [in a public meeting], it's all over the blogosphere." [Thanks for the plug, Bob.]

So what does this MEAN? A few thoughts:

- The Dems don't want to allow an unruly public debate of the issues - why? There are several possible reasons - (a) they have been told a public debate is "not a good idea" by Congressional Dems who have consistently refused to hold public hearings, (b) they have been told that many/most changes are "non-starters" by Guess Who so don't even think about suggesting them, or (c) they don't want to defend their views publicly because . . . there is no way to put a good face on their views.

- The Dems were outfoxed today. By putting up the request to discuss this subject publicly, the Republicans forced their fellow Democratic Commissions to stand up publicly - before you, the general public - and try to defend "smoke filled room" politics. Now that's "Change We Can Believe In!" In other words, they were caught between a rock and a hard place - their Congressional handlers said "no way" and to get this result, they had to publicly wave their arms and try to convince us that secrecy is somehow openness. The Dems can NEVER again say they are all about transparency. If they do, they will expose themselves as being all about . . . something else.

- The "commitment" of the Commission to find middle ground and vote more cohesively as a group, which they achieved after considerable effort on the recent Stay decision (lead testing and certification), is apparently paper-thin. Ms. Tenenbaum obviously knew of Ms. Northup's motion ahead of the meeting today (she had her response drafted in advance). [Did anyone else catch the chill in the air during the meeting?] So, if they all knew this was coming, where was that commitment to work together? To consider everyone's views? Forget it. It's also hardly an advertisement for the ability of the Chairman to steer this group.

- The illusion that this government cares about the mess it made or is making any reasonable effort to fix it has been blown up. The game is fixed and has been fixed from the get-go. You need only read the Appropriations conferee report (link above). The Democrats control both Houses of Congress - so this statement was written by Democrats: "The CPSIA was signed into law on August 14,2008 and is considered to be the most significant piece of consumer protection legislation enacted since the CPSC was established in the early 1970s. The legislation received nearly unanimous bipartisan support in Congress. Congress passed this legislation in the wake of a massive number of consumer product recalls in 2007 and 2008--more than 20 million-many of which involved toys manufactured in China. The conferees strongly support this legislation but are aware of concerns surrounding implementation of certain aspects of the law." Of course, I have already documented that 43 Senators and 96 Members of the House have either sponsored or voted for CPSIA amendment legislation. It's a complete mischaracterization of the current reality - but when read by Ms. Tenenbaum into the record during the meeting today, it almost sounded true . . . .

This process is some sort of Kabuki Theater for your amusement. Having fun yet?

Today's decision is par for the course in a twisted, bass-ackwards debate over safety characterized by ideologues out to steal our legal system, bureaucrats devastating markets that they simply do not understand, regulators witnessing the destruction of their agency to serve a small number of Congressional "masters" with a broad, world-changing agenda. To propel it along, the Dems now propose to shield their work under the cloak of darkness. Does it really matter? Well, Bob Adler already knows what everyone thinks and doesn't care to be told he is wrong (and others are right). So I guess it really doesn't matter. His mind is made up, Waxman's mind is made up - and no one cares what you think.

So, when you have to let a few more people go to cover ridiculous testing costs or to pay your lawyer extortionate fees to keep you on the straight and narrow, or when you cut your product line or drop some customers to find profit elsewhere, just remember: the Democrats on the Commission thought it would be best to have the debate on the CPSIA one-on-one in private, rather than let you understand their views or participate in an open hearing.

Just remember that . . . on November 2, 2010.

CPSIA - It's 2010, Our Fourth Year of Travails

I can't believe it's 2010. We are now entering the fourth year of the CPSIA mess. The children's product safety fiasco began in 2007 with large scale lead-in-paint recalls by a limited number of companies. The perceived betrayal of trust was enough to set off an unstoppable legislative tsunami, giving birth to the noxious CPSIA. Today, years later, we find ourselves beleaguered by

1. An inflexible law which is especially penal to small business,
2. A deaf Congress, resolute in its refusal to hold a real, open hearing or to foster debate,
3. A paralyzed CPSC so hobbled by the problems and tasks of the new law that it cannot even meet deadlines with 15 months lead time, and
4. A demoralized manufacturer community, numbed and confused by the process.

On the bright side, Henry Waxman floated a CPSIA amendment last month, apparently publicly conceding that the law needs to be changed and that the CPSC cannot fix the problems by themselves. In addition, the CPSC will be filing its own requests and recommendations on January 15 to satisfy a requirement in its appropriations grant.

Our struggle to foster change is producing results but we are not done. This terrible, distracting journey is not at an end, and we must steel ourselves for more fighting if we want to be governed again with common sense and rationality. So with a hearty Happy New Year, I wish you strength of character and a head of steam for the fight that lays ahead.

I will close this post with a poem by Paul Eldridge published in 1945 entitled "I Bring a Sword":

To the beasts preying upon my people
To the hyenas mocking their grief
To the hounds barring their gates
To the ostriches burying their heads
To the crocodiles shedding tears
To the snakes hissing malignities
To the monkeys chattering diplomacies
To the asses braying profundities
To the cocks crowing prophecies
To the owls hooting defeat -
I BRING A SWORD!

Let that be our motto for 2010!

CPSIA - Waxman Language Dropped from Defense Bill

In a triumph for rationality (?), the Waxman CPSIA amendment has been DROPPED as an attachment to the Defense Appropriations Bill. It is dead and will not become law (the bill is posted on the House Rules Committee page and does not include this amendment). The people have spoken! Apparently, no one particularly liked the process dreamt up by the Waxmanites, and with full rebellion by various industry groups, certain CPSC Commissioners, other House Democrats, the Senate and of course, the slighted Republicans, the language was killed.

Notably, the very fact that Waxman himself proposed this amendment is a strong concession that something needs to be done legislatively to fix the law. This is also an acknowledgement from the top that the CPSIA can't be fixed by the CPSC alone. Furthermore, it is clear that the language didn't go nearly far enough to address the many well-known issues or put the CPSC in a position to take sensible steps to fix the mess. Finally, I sense a growing desire among legislators to work cooperatively and in a bipartisan way to fix the law. Perhaps more than a year of vicious fighting is wearing everyone down. Let's not forget that the CPSIA was originally the product of bipartisanship. The withdrawal of the Waxman amendment is a strong vote AGAINST poisonous relations across the aisle, at least as it relates to safety.

Because of its evident flaws, the demise of the Waxman amendment is a very positive development, although I would (of course) prefer to see the law fixed. But fixing the law needs to be done the right way. It's time to move beyond message control and the false notion that any amount of lead is dangerous somehow like uranium. We are all adults here, and know that something less than an outright ban of trace levels of lead would work just fine to protect consumers. There may be legitimate consumer concerns over toy safety and the safety of other children's products, but the CPSIA (a law borne in anger) is misconceived as a solution.

Perhaps this crash-and-burn will bring about real change. The best outcome would be an overall change in atmosphere. There is NO REASON that all the stakeholders must continually fight like cats and dogs. When it comes to safety, this is a particularly ridiculous situation. The common interest of all adults is to protect children - NO ONE opposes safety. However, the issues in safety are procedural and economic in nature, which must be acknowledged, and the solution is more complex than may be apparent. It is my belief that a reconsideration of the CPSC's relationship with the market may provide the best "pop" for safety. A reinvigorated CPSC committed to industry outreach and partnership would work wonders. Rebuilding a genuine sense of mutual trust, rather than a mutual sense of fear and loathing, will provide the best long term protection of consumer interests.

This is NOT a pipe dream! In the wake of the demise of the Waxman amendment , we need to move forward TOGETHER to recast the law to facilitate the strength of the U.S. marketplace while protecting the legitimate interests and rights of consumers. No one needs to lose in this process. And a lot of jobs can be saved - if we act promptly and with insight.

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 - Brass Bushings Petition Rejected - Now What?

Disclaimer: I am in a bit of a rush today, but wanted to get this out to you. I normally give you quotes and citations, but today am working on a deadline. If I get a small detail wrong, my apologies - please correct me. I will try not to put the wrong words in people's mouths . . . .

PLEASE NOTE THAT I HAVE ADDED A POSTSCRIPT TO THIS ESSAY (11-5-09).
______________________________


As expected today, the CPSC Commission rejected the petition of Learning Curve to exempt brass bushings in the wheel assemblies of its toy cars. I have written about this several times in recent weeks, most recently issuing my own "ruling". This innocent request was a loser from the start, not because of any safety issue but because of a very rigid and technical law that caught up brass bushings in its terrible web.

Some quick comments and tidbits:

a. Anne Northup emerged as the beacon of rationality in this debate, constructively offering a lawyer's argument that the word "any" means de minimus amounts of lead, not none. She pointed out that Congress okayed 300 ppm lead content in substrate suggesting that it considered some amount of lead to be tolerable. Adler called this analysis "brilliant" but disagreed with it, contending that the clear meaning of the word "any" is . . . "any". [The word "any" is critical to derive meaning from Section 101(b), the lead exemption section of the CPSIA. He also pointed out that the precedent in prior Commission decisions is that "any" means "any". [Who knew they'd read all those old decisions anyhow?!] Mr. Adler dipped into the consumer group handbook and stressed the health dangers of lead and repeated the "no safe level of lead" mantra. [It is hard to defend lead, and I have no intention of doing so, but as a matter of science, I think this is flat out wrong. Aside from the fact that we all consume lead by breathing, eating and drinking every day and must therefore being slowly poisoned with the government's apparent permission, toxicologists will tell you that the dose makes the poison. Thus, there are in fact safe levels for lead, notwithstanding that lead is a known neurotoxin.]

I agree with Adler's legal analysis and support reading the law using the plain English meaning of the words. I prefer the OUTCOME offered by Northup, but a rational set of laws depends on use of the plain meaning of the words. I am also supportive of respecting precedent if we want to maintain a sense of the Rule of Law. So . . . this means we are stuck with this awful law and its awful strictures until it is amended.

b. I wasn't the only one who realized that Congress needs to get engaged for the Commission to emerge from this corner. The debate on this topic was vigorous and fascinating. I recommend that you check out the video at your convenience. Adler pointed out that the language of the law is stringent ("rarely seen anything this emphatic"), intentionally so. Nord expressed severe reservations over this removal of discretion, noting that the CPSC is "the expert agency".

Nord and Northup wanted the vote on the LCI petition delayed or enforcement stayed until the CPSC could seek guidance from Congress or feedback from OMB. Adler would have none of it. He cited the super-majority that voted for the law and expressed the view that Congress didn't need to hear from the CPSC on this subject because of its decisive action. There were echoes in Adler's argument of assertions by House staffers that the CPSIA didn't need amendment because of its "perfect legislative process", implying an all-knowing, never incorrect or regretful Congress. He said Congress "shot real bullets" and went so far as to state that not only would Congress refuse to act if CPSC approached it, but that it might actually harden its stance ESPECIALLY if the CPSC reached out. In other words, according to Adler, going to the Hill to get relief or guidance might not make things better, it might antagonize them and make things worse. Believe it or not.

c. Northup noted that she was the only Commissioner who has served in Congress and confirmed . . . (are you sitting down?) that some members of Congress do not master every nuance of every bill. Some might not read the bills at all. OMG! Anyhow, she says that the exemption section was likely considered by members of Congress voting for the CPSIA to be a real, if stringent, exemption process, not the inert and impotent process that it has become. This argument did not seem to persuade Adler or Tenenbaum. Adler said he had seen no indication yet that Congress was interested in changes to the law. This got a hot reply from Nord who offered him her file of letters from members of Congress asking for change in the law (including a letter from Senator Klobuchar (MN) specifically on the point of the meaning of "any").

The meeting veered off in a schizophrenic direction at the end when Northup and Nord asked for a public debate to be scheduled on the meaning of this precedent and its far reaching implications. Adler replied that he wanted to see their "letter" because he said he might be "very sympathetic".

I found this last exchange extremely confusing. Adler gave me the impression of speaking out of both sides of his mouth. Tenenbaum remained basically silent, which was disappointing, given the importance of this decision and of her leadership role on the Commission. She can provide more leadership to this group than by simply presiding over the meeting. A lack of coordination among the Commissioners or perhaps off-line dialogue seems to be missing. In any event, I may be some kind of political idiot but the Commission's strategy or even the thinking about how to resolve this terrible impasse is not apparent to me. For them to reject the LCI petition (voted down 3-2, with the deciding vote cast by a MIA Thomas Moore), refuse the opportunity to kick the can down the road by asking Congress for guidance and then to seem interested in reaching out in some way anyhow, left me utterly confused. Should we trust them to guide us home, or are they lost, too? What's the path forward, and why won't they 'fess up to both their problems and their strategy? What happens next and who will protect us? These are troubling questions.

The business community will be understandably horrified and demoralized by this decision. The strict interpretation of the CPSIA has now been blessed by a full Commission. They have hardened on the plain meaning of the law. While the Rule of Law has been upheld, and that's a good thing, it also means that the worst parts of the law will be respected, too. Thus, the economic destruction that we have been predicting based on the plain meaning of the law was given a boost today by the Commission. If you want to see the future, read the law. It's all in there. Until proven otherwise, this Commission has yet to signal an interest in going across town to talk to Mr. Waxman and his lot.

Interesting Side bar: Learning Curve apparently brazenly and openly continued to sell these items during the pendency of this petition. That risky strategy involved knowingly selling a product that they believed was illegal (that's why they asked for an exemption). That's a no-no, although it had no safety consequences for anyone (as acknowledged by CPSC Staff and certain Commissioners in today's debate). Notably, Mr. Adler asserted that the CPSC Staff would let their own kids play with these cars even if the kids' blood lead levels were right at some sort of hypothetical lead "tipping point" - in other words, the cars are perfectly safe, no point denying it. Nevertheless, Mr. Adler upbraided LCI for this procedural faux pas. He cited them for bad "optics".

Bad optics - after today's decision, I think that's something for the Commission to think about.

POSTSCRIPT - Mr. Adler retracted his accusation of LCI above. Please see this blogpost for details.

CPSIA - Washington Times Bashes Waxman CPSIA Hearings

THE WASHINGTON TIMES
(Sept, 10, 2009)

EDITORIAL: Waxman stifles dissent

The House Committee on Energy and Commerce will hold a sham of a hearing today on the deleterious effects of the misguided Consumer Product Safety Improvement Act of 2008 (CPSIA). The hearing is a sham because Chairman Henry A. Waxman, California Democrat, has refused multiple requests for testimony from small-business owners, consumers or anybody other than government officials. Instead, the sole witness will be new Consumer Product Safety Commission Chairman Inez Moore Tenenbaum, who started her job less than three months ago.

When the legislation at issue is creating havoc among those being regulated, it's hardly constructive to hear only from the regulator. And when the regulator barely has had time to find her bearings, the value of her testimony, unleavened by any other viewpoints, is diminished even further.

The Consumer Product Safety Improvement Act sets extremely low limits on the lead content of any component of any product sold primarily for use by children, bans a common ingredient used to soften certain plastics even though multiple independent tests have concluded that the chemical is harmless, and makes it a criminal violation even for charities or garage-sale participants to resell any product ever recalled by its manufacturer. It has cost charities such as the Salvation Army dearly and has caused bookstores and libraries to pull treasured children's classics off their shelves.

As far back as March, staffers of the commission itself wrote to Rep. John D. Dingell, Michigan Democrat, urging multiple changes to the new law. Among the many changes they suggested are: first, to make the law not retroactive to products manufactured before the law was passed and, second, to allow the commission to issue common-sense exceptions to the law for certain products (mini all-terrain vehicles, for instance) clearly not likely to cause lead ingestion.

The Handmade Toy Alliance wrote to Mr. Waxman on Sept. 4 asking for a broader hearing, saying its members "do not believe [Mrs. Tenenbaum] can represent the full scope of CPSIA's impact on responsible American small business." As far back as March 6, the two Republican leaders on the full committee and relevant subcommittee -- Rep. Joe L. Barton of Texas and Rep. George Radanovich of California, respectively -- wrote to Mr. Waxman asking for a meeting so the "committee can spend a morning listening for the first time to honest people who don't belong to influential organizations and who can't afford to hire lobbyists, experts or spokespeople."

On Sept. 8, the two congressmen wrote to the chairman again: "We are concerned, however, that a hearing presenting only the opinions of Chairman Tenenbaum, without a second panel of witnesses representing family-owned retailers, tribal stores, toymakers and other affected parties, is very unlikely to cover the surprising and distressing practical problems that have arisen in connection with the implementation of the new law."

Mr. Waxman never responded to that letter. "The Energy and Commerce Committee is aware of the letter and is taking the request under consideration," a committee spokesman e-mailed The Washington Times yesterday.

Somehow, we doubt an invitation to outside parties will be issued by the meeting's 10 a.m. start. A follow-up hearing is warranted. As the old expression goes, the committee ought to "get the lead out" by holding that hearing soon.

CPSIA - Is Congress United Against Amending the CPSIA?

The CPSIA was passed in August 2008 by an overwhelming majority in both the House (424-1) and the Senate (89-3). Supporters and zealots behind the law, after clucking over the perfect legislative process used to create the CPSIA, assert that the vote totals express the Will of the Nation behind this "wonderful" law. That kind of reasoning seems full of holes (such as, for example, the timing of the 2008 election cycle), but for awhile, many people fell for it.

I have attached an update on where Members of Congress stand on the CPSIA today. It's not quite so lopsided anymore. There are now 43 Senators and 96 Representatives who have either sponsored or voted for CPSIA amendment legislation. Perhaps someone is listening! This group of concerned legislators includes Democrats as well as Republicans. Let's recap - there were FOUR Members of Congress who voted against the CPSIA, and NOW there are 139 Members of Congress who have taken positive and public action to amend it. Hmmm, what was that about the Will of the Nation?

Amending the CPSIA has yet to leave the starting gate, courtesy of Senate and House Democratic leadership who for their own mysterious reasons refuse to acknowledge that this law has ANY flaws whatsoever. It's very sad that certain people have hijacked children's product safety and turned it into some sort of political plaything. We will continue to work to make it clear to the American public where the legislative breakdown is. For the moment, however, I wanted you to know that there is considerable support for changing this law. It's not just us wacky "bloggers" who want this law changed. Members of Congress do, too.

Now let's just do it!

CPSIA - Do-Gooders Playing a Role in Train Crashes?

Consumer Groups, media and panicky politicians led a feeding frenzy last year over toy recalls that resulted in remarkably broad legislation restricting the presence of lead in children's products, yes our old friend the CPSIA. Of course, the determined "do-gooders" in the consumer group corner have asserted that there is "no safe level" for lead and thus, it makes "sense" to eliminate it totally from children's products (and the world at large, if possible). Remember, you can't be too safe . . . . A leader of this charge was a staff person at the American Academy of Pediatrics who presented unchallenged statistics in September 2007 to a House Subcommittee. With the lilly-white AAP backing of this notion, Congress swung into action and outlawed lead effectively from all children's products. Sounds good, right? Well, as with most manias, the "unintended consequences" have been terrible. This has been well-documented in this space.

Interestingly, I found an article recently that suggested that elimination of lead from circuitry (solder), courtesy of our friends in EU bureaucracy, may have played a role in the recent terrible Washington, D.C. Metro train crash. [Lest we forget, it is worth noting that the motivation behind the EU's elimination of lead from solder was protection of the environment, not a fear over direct human poisoning, the basis of the current U.S. mania.] This article points out something that the amateur scientist fear mongers may not have known, which is that lead plays a useful role in solder, and in its absence . . . more "unintended consequences". In this case, the consequence is something called "tin whiskers", a phenomenon created by "untamed" tin in solder. Tin behaves differently in the absence of lead, and will grow "whiskers" that create electrical shorts. The article suggests that this explains the intermittent electrical failures of the crash detection system on the Washington Metro. Other deadly accidents have been linked to tin whiskers. Precautionary, indeed.

Among the many things that disgust me about the lead mania is the illusion (delusion) that controlling lead-in-substrate in children's products will have any material impact on exposure to lead. In fact, it's just a way to put blinders on. By publicly and notoriously addressing the "lead problem" - problem solved!! This is absurd, of course, but has only encouraged the maniacs. Take, for example, the recent hubbub over the Obama's "lead-contaminated" vegetable garden. Incredibly, the lead levels detected in the White House garden (presumably by people with too much time on their hands) was 93 ppm. Our dear friends at the AAP assert that background lead levels in dirt is 40 ppm. This was the rationale behind the recent Illinois lead labeling legislation profiled in this space. As the Obama article makes clear, the controversy over lead in dirt is just politics, not science, and is WAY out of proportion to both the health threat and the presence of lead all around us. Dr. Kimberly Gray, Director of the Environmental Sciences Program at Northwestern University comments: "It’s inflammatory. 93 ppm is well below background lead for an urban environment. It’s what you’d expect just from atmospheric deposition." The article continues: "Atmospheric deposition is lead particles that fall out of the sky, from things like auto emissions." You mean there's lead in the air, too - oh, no!

The do-gooders have infinite justifications for their bans of lead in children's products, their current obsession, but (other than economic devastation) what has actually been accomplished for the American public by their handiwork? Only the illusion of "better safety". The legislation markets the idea that elimination of insoluble lead from substrate makes a marginal, incremental difference to health, as though it were the only (or principal) source of lead in our bodies. This flawed logic also underlies the dangerous Proposition 65 in California. The labels required by Proposition 65 sounds sensible, intended to advise consumers of the presence of "toxins" in their products (even if legally there) so they can decide whether to expose themselves or their families to the "deadly" substances. Who could object to that? Well . . . the selective presence of these labels gives false comfort to consumers who may believe that the labels highlight the ONLY places where the noted risk occurs. The implicit reasoning goes like this . . . why would the government require lead labels on lip gloss if the government knows that this risk is miniscule compared to MANY other sources of lead in daily life? Aren't they requiring labels on EVERYTHING with lead? And, if so (the government wouldn't let us down!), isn't this buying decision critical, a highlighted choice that might make the difference between good health and some form of miserable, painful, lingering death?! That's the implication, however erroneous.

I do not accept that this is the only way to run a sensible society. Canada has attempted to truncate our fancy new safety system, by tailoring it to a narrow and specific class of products or situations. That seems like a good place to start. It's time for all concerned to acknowledge that the "perfect legislative process" had a faulty outcome. Real leaders are prepared to admit error and to do the right thing for their troops. Congress???

CPSIA - The Delusion of a "Perfect" Process

In early January, I had a conversation with Robin Appleberry (of Henry Waxman's office) and Christian Fjeld (of Bobby Rush's office), two of the principal architects of the CPSIA train wreck. When I asked about how to move forward with modifying the law to fix its (many) flaws, I was told in no uncertain terms that the law would not be reopened. Why? I was assured that the law was designed (carefully) to give the CPSC the power to fix all the problems itself. As I have documented time and again, this is simply not true. In the "Just Say No" defense of the CPSIA advocates, repetition of this "big lie" mantra is part of a strategy to turn fiction into "fact".

In any event, I was told that a principal reason to NOT revisit the law is that it had been "litigated" (their word for the process) so thoroughly. In other words, as a consequence of its "perfect" process (a series of public hearings, deliberations, conference negotiations, Congressional votes, Presidential signature), Congress had ergo delivered the "perfect" law. Perfect laws don't need to be revisited. Uh-huh. I had occasion for this trip down Memory Lane because I recently heard that Ms. Appleberry was trotting out this old chestnut again in recent meetings.

Please don't misunderstand me - it was a nifty process. They called the witnesses they wanted to hear from (namely those whose testimony supported the conclusion they had reached before the hearings), asked the questions whose answers were predetermined, and then conducted "due diligence" by asking a limited number of representatives of industry a limited number of questions behind closed doors. This undocumented "due diligence" was taken at face value and applied as fact to justify the "reasonableness" of the details of the new law. The data they gathered was overwhelming, completely flawed but unopposed.

I remember those days of the "perfect" process when any attempt to reach the players and to contribute to this process was rebuffed. We "evil" businessmen (in my case, a toymaker, horrors!) were not trustworthy and our opinions of the proposed legislative schemes were apparently perceived as self-interested and designed to permit "unsafe" products to be sold. We were labelled implicitly as moneygrubbers and were excluded from their "perfect" process. Naturally, this helped with message control by marginalizing anyone who might disagree with the design of the CPSIA.

The science justifying this law was never properly tested. As my recent blogpost indicates, the data provided by the American Academy of Pediatrics almost singlehandedly proves how absurd the contention is that many of the products regulated by the CPSIA present any detectible health risk to anyone. When presented with this data, I am told the CPSIA honchos are again saying that the science would not be revisited. What a "perfect" process!

In Illinois, we have learned a few things about "perfect" legal processes, notably death sentences. Death sentences are not handed out lightly in Illinois (or anywhere) - there are many legal hurdles to jump over, with detailed findings of fact and other protections of individual rights. Yet, in January 2003, Governor George Ryan made history when he commuted the sentences of all inmates sentenced to death in Illinois because of his concerns over the flaws in the conviction and sentencing process. Ryan was a "perfect" process skeptic.

George Ryan's concern over the "perfect" Illinois process used to hand out death sentences derived from the famous Rolando Cruz case. In 1985, a man named Rolando Cruz was convicted of the notorious rape and murder of 10 year old Jeanine Nicarico and sentenced to death. In a series of legal challenges over many years (ultimately opposed by then State Attorney General, now Senator, Roland Burris), Mr. Cruz's conviction was overturned after a sheriff's lieutenant admitted he had lied under oath and DNA evidence exonerated Cruz. In the wake of this terrible injustice, Governor Ryan initiated a moratorium on death sentences and ultimately issued a mass commutation of all Illinois death sentences. Mr. Ryan's doubts were well-founded.

Had the architects of the CPSIA been our Illinois Governor, the death row would still be stocked with inmates. In their world view, a "thorough" process, well "litigated", need never be revisited, like the one that almost killed Rolando Cruz for a crime he never committed or the case of Anthony Porter whose execution was stayed with two days to go - only to be found innocent later with evidence provided by Northwestern University undergraduate journalism students. George Ryan's stand on death sentences made me proud as an Illinoisan and as an American. Beware of anyone who defends a result by pointing to their process - sometimes it pays to check your work.

I love a perfect process, I really do. But this law is not perfect. The evidence is overwhelming. It's time that the politicians propping up this defective law - and encouraging the CPSC to break the new law to appease vocal constituents - admit their error and do the right thing by amending the law. It's their duty, what they were elected to do. Come on, guys - do your job.

CPSIA – Calling All “Mommies”

The two days I spent at the ICPHSO meeting (see http://www.icphso.org/ for background on this safety issues forum) drove home many messages about the CPSIA, most of them unpleasant. You will be seeing more on this topic in this space in coming days. There’s a lot to discuss. For the moment, however, I would like to comment on how we are being portrayed by the Powers That Be. I can confirm that you (and I, apparently) are “Mommy Bloggers” in the parlance of the PTBs and that we are “misleading” the public in our writings in our blogs. Yes, you are just “Mommies”, not serious people, intelligent people, business people. We are (apparently) a marginal group of trivial people, not quite smart enough to handle a law as brilliant as the CPSIA and certainly no match for the Brains at the consumer groups or in Congress. We’re just a bunch of Mommies, whiling away the hours with newfangled blogs, unable to control ourselves at the keyboard. And, boy, do we love to talk online. You get the picture. [Btw, no insult meant to Moms on my part, I should note. If you knew my Mom, you would know just how ridiculous it is to insult the intelligence or insight of Moms. Actually, anyone with a Mom probably can tell you that.]

Compounding the problem in the view of the PTBs, we are apparently guilty of “misleading” our readers. I get the impression that it is because we all appear to be “hysterical” and “panicked”. [The proffered solution to our “emotional moments” is just to TRUST the CPSC and Congress. They know what’s best for us,, don't worry. I guess they must be the “Dads”. There, there, Mommies., Congress will protect you!] The beautiful part of this slam on our intelligence and integrity is that the accusation comes from Congress and from the consumer groups. Regarding Congress, I would simply note that Mr. Waxman has caused me to be uninvited to testify on the record THREE TIMES NOW. Aha, there’s a guy who’s out to set the record straight with open debate and dialogue. I guess I must have a “bad motive” in my opposition to his perfect law. Could there really be ANY other explanation?! Can't let the riffraff pollute the discussion, now can we?

In the case of the consumer groups, it is clear that they are making considerable errors themselves (misleading accusations of travel abuse by Nancy Nord, distortions of actual testing costs, mischaracterization of the actual workings of the law and so on) but, hey, let’s not be too picky here because, DARNIT, they’re just looking after our own best interests!. Of course, Consumers Union say they fact check their blogs, which makes those blogs demonstrably better than anyone else's, especially a bunch of Mommies. No, we should all rely on those lily white and pure architects of society and while we're all it, the traditional media, well-known for being faultless. Ironically, in all the bashing, there are no actual examples of abuse or serious and misleading error, just a lot of hot air assertions. It must be nice to be able to just swing away with no accountability. I guess one doesn't have to fact check an accusation. . . .

I will put my blog upside anyone else’s blog for accuracy. Please find my errors and send them to me, consumer group factcheckers. I stand ready to correct my many misleading errors.

The tactic of marginalizing an unpopular or inconvenient message by attacking the messenger is an old trick. The way to beat this tactic is to expose it. Hey, supporters of the CPSIA, instead of maligning us, why not take us seriously and ANSWER US? If you're right, we'll be the first to admit it. Show some respect, however, and respond!

Rick

CPSIA - Who is Defying Whom?

As we march resolutely forward against an immovable Congress, I ask "who is defying whom?" I have been writing Congress about this bill since July. We know that my original letters went unread by the principals - they EACH admitted that fact to me freely in November, and nary ONE of my many subsequent emails on the CPSIA have been answered. Those of us who oppose this law hold views which are unwelcome in certain quarters of Congress. We stand in opposition to the self-righteous consumer "advocates" who promote a rigid and unthinking "take no chances" approach to safety and who openly state that the bill cannot be reopened, as though they are now the Moms of the nation ("no more cookies for you, Young Man!"). The more we are disdained, the more I feel ostracized and excluded from a critical national debate and function. So I ask - are we defying them, or are they defying us?

I used to think this was our government. I used to think government officials collected paychecks which we paid with our tax dollars, that they work on our behalf. Yet, when their handiwork is criticized, they tell us to go away. They act as though they are an entity unto themselves, rather than an organ of OUR government. Rachel Weintraub, senior counsel for the Consumer Federation of America and a leading adviser to the bill's authors, instructs in a recent Bloomberg.com article that ‘[t]he answer is not to reopen the bill.” I see. They know what's best for us; by opposing their law, we are defying them.

But . . .

a. Sales are down sharply at a wide range of companies selling children's products. I have heard from many of you about disorder in your markets. I know from my customers that fear, distrust and uncertainty is running rampant. The government (and Rachel Weintraub) is telling us we can't trust anyone - so we don't.

b. Companies are now starting to informally remove product from the market - not because they are certain that these products create a health hazard or because they know they violate law. In fact, that's not possible since the law is not settled - there are no implementing rules or testing standards for "total lead". Actually, "total lead" is not well-defined at all. So why are these pseudo-recalls occurring and why should we care? They are occurring because companies are running scared and feel they can reduce prospective costs by "taking no chances" now. Why should we care? This activity not only wastes vast amounts of money and resources, but also scares the willies out of the market. It suggests that we ACTUALLY HAVE SOMETHING TO FEAR. Is Rachel Weintraub right? Heavens no, not even close, but these recalls make her look "right". This is catastrophic on many levels.

c. Many companies are jumping to the 300 ppm total lead standard now, in anticipation of the August standard. This is virtually required by the September 12 retroactivity opinion of Cheryl Falvey, and totally eliminates the Congressionally-granted sell-off time between February 10 and August 9. This further confuses and alarms the marketplace. Should everyone be scared? It looks like it. Thanks, Congress!

d. The Waxman and Rush House Committees have refused to call hearings on the CPSIA. Their proposed hearings in December were suddenly cancelled and no further hearings have been scheduled, despite the calls of Reps. Barton and Radanovich, the ranking Republican members of those committees. One reason to not have hearings is to keep me, and to keep you, off the record. If there are hearings, they will be taped and put up on the web for all to see. Snippets can go up on YouTube. That might be . . . embarrassing for some people associated with the law. People who testify can put written testimony in the public record without their having any ability to review it or change it. Remember that little thing called Freedom of Speech? The written testimony, which the committee must post online, will be an invitation for a suddenly interested Media to ask questions. No one wants that! The only way to keep the mischief makers out of the record is to have no record at all.

No, we are not defying them - they are defying us, and in so doing, are defaulting on their responsibilities as Congressional committees. If their policy is so strong and so protective of our interests as members of our community, why not respond to the critics? Why not hold hearings? Is the right way to respond to rational criticism to say that the bill will never be reopened, and we should all clasp hands and blame the CPSC instead? I think not.

Write your Congressman and DEMAND that they reach out IN WRITING to Reps. Waxman and Rush, and Senators Pryor and Rockefeller, with cc's to Reps. Barton, Radanovich and Senator Kay Bailey Hutchison, to request urgent hearings on the serious issues raised about the CPSIA and further, to implement an immediate stay of enforcement of the law for at least six months after final implementing rules are promulgated by the CPSC. By hitting the "pause button", Congress will allow for an orderly process to consider the issues on the bill and to define the appropriate corrective action after due public debate. They need to hear from you - on the record.

Rick

CPSIA - Smoot-Hawley Redux

From: Rick Woldenberg
Sent: Mon 1/26/2009 1:44 AM
To: 'Christian.Fjeld@mail.house.gov'; 'robin.appleberry@mail.house.gov'; andrew_grobmyer@pryor.senate.gov; james_reid@rockefeller.senate.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'; '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; richard.goldberg@mail.house.gov; matthew.abbott@mail.house.gov; 'Brian_hendricks@hutchison.senate.gov'; 'david@commerce.senate.gov'; 'Cathy.hurwit@mail.house.gov'; pweller@cpsc.gov; mgougisha@cpsc.gov; bridget_petruczok@boxer.senate.gov; michael_daum@cantwell.senate.gov; bill_ghent@carper.senate.gov; hap_rigby@demint.senate.gov; frannie_wellings@dorgan.senate.gov; david_quinalty@ensign.senate.gov; james_chang@inouye.senate.gov; jonathan_becker@klobuchar.senate.gov; michelle_schwartz@lautenberg.senate.gov; lee_dunn@mccain.senate.gov; sonya_wendell@mccaskill.senate.gov; matthew_hussey@snowe.senate.gov; brendan_plack@thune.senate.gov; hugh_carroll@wicker.senate.gov; elissa.levin@mail.house.gov; christopher.schepis@mail.house.gov; theresa.lavery@mail.house.gov; greg.louer@mail.house.gov; brian.diffell@mail.house.gov; amy.ingham@mail.house.gov; laura.vaught@mail.house.gov; matt.johnson@mail.house.gov; saul.hernandez@mail.house.gov; aaron.shapiro@mail.house.gov; rick.axthelm@mail.house.gov; steve.plevniak@mail.house.gov; scott.cleveland@mail.house.gov; jonathan.smith@mail.house.gov; pat.cavanagh@mail.house.gov; rachelle.wood@mail.house.gov; michael.gaffin@mail.house.gov; angela.manso@mail.house.gov; dana.lichtenberg@mail.house.gov; derrick.ramos@mail.house.gov; elizabeth.stack@mail.house.gov; lori.pepper@mail.house.gov; josh.connolly@mail.house.gov; david.bahar@mail.house.gov; mark.bayer@mail.house.gov; Neeta.Bidwai@mail.house.gov; kyle.victor@mail.house.gov; chris.debosier@mail.house.gov; morgan.jones@mail.house.gov; matthew.dockham@mail.house.gov; tuley.wright@mail.house.gov; cade.king@mail.house.gov; betsy.christian@mail.house.gov; chris.herndon@mail.house.gov; Mike.Ward@mail.house.gov; laura.abshire@mail.house.gov; randi.meyers@mail.house.gov; Greta.Hanson@mail.house.gov; liz.muro@mail.house.gov; jamie.euken@mail.house.gov; jon.oehmen@mail.house.gov; brad.schweer@mail.house.gov; dana.grayson@mail.house.gov; michael.beckerman@mail.house.gov; valerie.henry@mail.house.gov; Becky.Claster@mail.house.gov; tiffany.guarascio@mail.house.gov; jeff.mortier@mail.house.gov; Christopher_day@billnelson.senate.gov; john_phillips@kerry.senate.gov; Kerrie Campbell (kcampbell@manatt.com)
Subject: CPSIA - Smoot-Hawley Redux

In 1930, two well-intentioned U.S. Senators led a movement to solve overcapacity in the U.S. economy in the severe recession of 1929/30. This bill, the Smoot-Hawley Tariff Act of 1930, imposed sweeping tariffs on a broad range of goods and was signed into law by President Hoover on June 17, 1930. Smoot-Hawley will live in infamy as one of the worst misjudgments by Congress in history, as it is today considered a precipitating event for the Great Depression. Under Smoot-Hawley, international trade went into an abrupt tailspin, with U.S. imports falling by 71% within two years, and U.S. exports falling 67% in the same period. Of course, it is also well-known that unemployment in the Great Depression shot up to almost 25% in 1933 as international trade faded quickly away. Shamefully, Congress held to its position on tariffs despite the petition of 1,028 economists and the despondent pleas of businessmen including Thomas Lamont, CEO of J.P. Morgan, who reportedly “almost went down on [his] knees to beg Herbert Hoover to veto the asinine Smoot-Hawley tariff.”

Congress has ignored dire warnings and turned a deaf ear to rational criticisms of its work in the past – and today repeats these errors in its resolute defense of the indefensible CPSIA. And, as time goes by, it becomes clear that the CPSIA is doing the work of a modern-day equivalent of Smoot-Hawley, rapidly creating a depression on the children’s product industry and laying waste to economic activity and jobs throughout the country with its sudden imposition of incentive-distorting costs.

No doubt, the proponents of the CPSIA have their reasons for defending the structure of the law, but fail to take into account the economic impact of the rules they so strongly support. Every rule represents choices; in this case, any notions of “improved safety” will come at a high cost. Are these costs worth their consequences? Congress opted to legislate the “bubble-wrap” childhood where no risk can be tolerated regardless of cost or the nature of the safety threat. This approach is endorsed by consumer advocates without responding to the substance of objections to the CPSIA: “’This law passed because our product safety net was broken,’ said Rachel Weintraub, senior counsel for the Consumer Federation of America, a nonprofit organization based in Washington. ‘The answer is not to reopen the bill.’” http://www.bloomberg.com/apps/news?pid=20601087&sid=aDLzWS6FBwRo&refer=home. Under this world view, no criticism of the CPSIA can justify its reconsideration – the end justifies the means regardless of what the consequence of those means might be.

As we in the Children’s Products industry suffer severe economic hardship and face the prospect of a law that cannot be complied with, we beg Congress “almost on [our] knees” for revised, rational rules focused on real safety issues. A laundry list of imaginary safety issues, like dangerous cotton t-shirts, edible library books or lead-infused shoe soles, are just too expensive to eliminate in a pinched economy. We are good citizens, the same as the consumer advocates, and are just as committed to safety. However, the economic policy advocated by the consumer groups as embodied in the CPSIA will not work – and if not arrested quickly, will do lasting damage that will not be easily repaired.

Sincerely,

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