CPSIA - House Hearings Questions about Rock Labels

Rep Butterfield questioned me about whether we REALLY needed to place labels on our rock kits indicating that our rocks might contain lead. As you may recall, I wrote about this last week and provided the clear explanation that the CPSIA bans the sale of any children's product which has components that may contain lead. That includes rocks in rock kits. Oops. I have embedded the clip of his query below, followed by a clip where Rep. Cassidy (a medical doctor) attempts to clarify the situation further.

I think it is important to note that Mr. Butterfield was making a point he believed in. He was gracious to me and my children before the hearing and I don't wish to question his intelligence here. I mean no insult or disrespect. Actually, the implication of his question is significant. He had days to study up on this question (he had a copy of my remarks in advance) and relied on Democratic counsel to the committee to analyze this legal point. He and his lawyers got it plainly wrong. As you will see below, Nancy Cowles also fumbled this same ball. The law CLEARLY requires this label of me, and it's THEIR law (the CPSIA). So what do I conclude? The Dems and the safety zealots don't understand the workings of the law they so vigorously defend. I believe this speaks directly to the challenge operating businesses face. If the authors don't get it, how are we supposed to? The answer is self-evident.

The question of WHY they continue to push so hard for a law they don't understand remains open. I don't think we can assert that they are bad people or dumb. If that's the case, and it is, what are they up to? I will chip away at this point in coming days.

Rep. Butterfield on rocks:



Rep. Cassidy on rocks:

CPSIA - A Fuller Response to Rep. Butterfield

At yesterday's hearing, Ranking Member Rep. G.K. Butterfield (D-NC) questioned our use of a strange lead label on our rock kits. We mark our rock kits with a label that says “Caution: Federal law requires us to advise that THE ROCKS in this educational product may contain lead and might be harmful if swallowed.” We also mark fossil kits with a similar label. I characterize this label as humiliating to us.

As I often say to people, these labels only tell half the story. We don't warn people to not eat our rocks for the real reason - that they are rocks. Eating rocks can break your teeth. Eating fossils destroys our fossil record, too. This is not a good idea.

Mr. Butterfield questioned whether this label was really a CPSIA issue. I can understand the confusion. As I testified, we have to work hard to master the 3,000+ pages of CPSIA rules and law that pertain to our business. We have 5.5 people in our QC department now, including me, and an outside lawyer to help us, too. After about three years of work, we think we have a pretty good idea about how the rules work. Maybe on a good day . . . .

Much of this gobbledygook makes no sense - and count this example as Exhibit A for nonsense rules. I testified that I did not want to use this label and that we had a one hour conference call with our lawyer over this one label. I was overruled - we had to use it. I was not happy and remain miffed over the label.

Why did we have to do it?

Well, we sell rock kits that are intended for kids and schools. There's no question about that. If you make a product aimed at kids, every part has to be lead-free, even if it's a rock, a fossil or something else made by G-d long before man showed up to roam the Earth. We can't "assure" ourselves that we are selling lead-free rocks because every rock is different. G-d's QC processes predate the CPSIA, you see. Anyhow, to sell rocks to kids, rather than sell them pictures of rocks in our kits, we need an "out". Otherwise, I suppose we risk jail time.

Hey, I didn't write the damn law. Don't blame me . . . .

Fortunately, there is a little crack in the veneer that allows us to keep selling rock and fossil kits. This section from the CPSC's Q&A gives us a way to keep going:

"Are chemistry sets, science education sets and other educational materials excluded from the lead limits for content and paint and surface coatings if they bear adequate labeling under 16 C.F.R. § 1500.85?

16 C.F.R. § 1500.85 provides that certain articles that are intended for children for educational purposes are exempt for classification as a banned hazardous substance under the FHSA and the lead limits under CPSIA if the functional purpose of the particular educational item requires inclusion of the hazardous substance, and it bears labeling giving adequate directions and warnings for safe use, and is intended for use by children who have attained sufficient maturity, and may reasonably be expected, to read and heed such directions and warnings. For example, an electronics kit or robotics kit would be considered educational and the inclusion of a lead-containing component would not subject the kit to the lead testing requirements because the use of lead in some components is required to make the electronic device. Similarly, the materials used for examination or experimentation for science study such as soil, rocks, chemicals, dissections, etc. would also be exempt." [Emphasis added]

In my opinion, this is shameful and wrong and misleading to consumers, but it's our only choice. The CPSIA forces us to hire lawyers to figure out how to legally bend over, pick up a rock, put it in a box and sell it.

I have boldly decided to not label the flagstones leading to my front door because they're not "Children's Products". If Trick-or-Treaters choose to lick the sidewalk on the way to our door next October, no one can blame me!

Blame Congress instead.

Lenore Skenazy has a Few Things to Say about All Those CPSC Recalls

Lenore Skenazy who writes the Free Range Kids Blog, has an op-ed on Forbes.com about all those CPSC recalls (previously covered on this blog here and here).

She doesn't mince words.

Money quotes:

"And so it goes in the unbrave new world, where nothing is safe enough. It's a world brought to us by the once sane, now danger-hallucinating Consumer Product Safety Commission."

and

"[CPSC] actively engages in fear mongering, perhaps to give it something to do. After it rid the world of leaping lawnmowers and exploding frying pans, it turned its sights on the also-rans of corporate reprehensibility. The tricycle with a protruding screw. The stuffed animal whose button eyeball contains lead paint. And to remain relevant, it acts as if there is really no distinction between a bucking chain saw and a Little Tykes "choking hazard" the size of a salt shaker. And it just keeps getting more irrational."

Read the entire op-ed: "Students Aren't Allowed to Touch Real Rocks."

Posted by the Staff of the Alliance for Children's Product Safety

CPSIA - Casualty of the Week for June 1

The Alliance for Children's Product Safety's "CPSIA Casualty of the Week" highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.


CPSIA Casualty of the Week for June 1, 2010:

CPSIA RULES! (THOUSANDS OF PAGES OF THEM)

Educational Products Market Overwhelmed by CPSIA-Mandated Testing and Paperwork

American Educational Products LLC (AMEP) is a Fort Collins, Colorado-based company selling classroom teaching aids like flash cards, animal models, globes and relief maps that educators rely on to teach their students. Despite a sterling safety record, AMEP President Michael Warring is worried that the ever-increasing amount of time that his company is spending on compliance with the CPSIA threatens the future of his company.

Warring explained, "We sold 5,600 different SKU's in 2009 to 2,600 different customers. Approximately 2,000 of these SKUs might be considered 'children's products', meaning that they must be tested by a third party for lead. My 64 employees and I are finding it virtually impossible to manage the scale of this CPSIA-mandated testing. Each SKU takes approximately eight hours a year in compliance and testing administration. This means that 24 of my 64 employees would need to work full-time, year-round just to ensure compliance with CPSIA – even though our supply chain controls effectively manage the risk of lead violations. I cannot afford a 37% increase in employees nor can I force 40 employees to do the work of 64. Neither alternative can be achieved."

Warring also said his company has lost business due to CPSIA.

"One customer cancelled a $5,000 custom rock order after deciding that rocks were too ‘dangerous’ for a geology lesson because of the CPSIA lead rules and elected to use posters instead," said Warring. "What caliber of young scientists are we nurturing in our country when we won’t let students touch and feel the textures, densities and hues of naturally-occurring rocks in a classroom? After all, kids pick up rocks outside the classroom every day. Our laws are scaring schools away from common sense choices about how our kids are educated."

He continued, "Another customer insisted that we use XRF scanning for lead-in-paint, a procedure not approved by the CPSC for compliance testing because XRF tests may produce erroneous results. We showed him independent test results that confirmed that our products were well within the CPSIA lead limits, but our inability to provide XRF testing resulted in the customer canceling orders worth about $35,000 to our company. Confusion reigns supreme – two years after passage of the CPSIA"

Warring fears that the CPSIA's senseless testing requirements and voluminous paperwork will mean that many of the 5,600 educational products that AMEP produces will disappear from the marketplace.

"As we offer fewer choices to the distributors we serve, our position as a vendor will deteriorate and our very viability in the marketplace could be at risk," said Warring.

Warring concluded, "I'm not sure how children's safety and well being is being addressed when their parents' livelihoods disappear and when their education is being limited to material in printed form. These are two of the many real consequences, intended or otherwise, that CPSIA has imposed on my company, my employees, the vendors we support, our customers, and the children we help to educate."

For additional information on the Alliance for Children's Product Safety and CPSIA, and to view previous "Casualties of the Week, visit http://www.AmendTheCPSIA.com.

CPSIA - CPSIA Casualty of the Week for April 9

The Alliance for Children's Product Safety's "CPSIA Casualty of the Week" highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.

CPSIA Casualty of the Week for April 9, 2010

CPSIA EXPELS EDUCATIONAL PRODUCTS FROM SCHOOL

The approximately 1,500 businesses that comprise the National School Supply and Equipment Association (NSSEA) are dedicated to providing educational supplies, equipment and instructional materials to schools, parents, and teachers. This small industry serves a vitally important market – American schools – providing specialized products that form the backbone of the American educational system. Without the support of this small business-dominated industry, the needs of many American children would be left unmet, including children with disabilities and special learning needs.

The Consumer Product Safety Improvement Act (CPSIA) has had a negative effect on nearly every NSSEA member company, says a recent NSSEA survey of manufacturers/suppliers and dealers.

According to the findings, 64% of surveyed NSSEA suppliers, and almost half of the dealers (46%), have been negatively affected by CPSIA regulations. About 47% of dealers surveyed have removed items from inventory, and 40% of manufacturers have either removed items or discontinued production. Almost 80% have incurred additional testing costs. Unfortunately, all this expense and disruption has served no purpose - the CPSIA has imposed economic turmoil on an industry that has a great safety record. Recalled educational products have been responsible for a total of three reported injuries in the last ten years, one from an overheating battery compartment and two relating to a defective hinge on a changing table.

A NSSEA manufacturer wrote, "We have been forced to discontinue safe products because the testing costs have not justified keeping them in the line. This has had a very negative impact on our bottom line by destroying very good and safe product. Teachers who have been using these products for decades will not have access to them anymore. Going forward, we will not be able to develop niche products that are specific to education because the testing costs will not justify anything with low sales."

"From delayed orders to confusion regarding the requirements, members have been left with eroding margin, increased labeling and testing expenses, and a decrease of education products available to the marketplace," wrote NSSEA Vice President Adrienne Dayton in a recent association newsletter.

CPSIA - More Victims (Am I Boring You Yet?)

I received a phone call on Friday from a reader of this blog who, among things, wanted to report to me that she is losing suppliers at a rapid clip. Why? She makes hair bows and barrettes for kids. [She recently branched into dog hair bows because it is outside the CPSIA reach and might be a viable business after the rest of her business craters thanks to Mr. Waxman. Where have we heard this strategy before, namely leaving the children's product market to escape the penal reach of the CPSIA?] She decorates her bows and barrettes with various doodads like buttons and other shiny bling. It turns out that her suppliers of buttons and so on have no interest in paying for testing for or compliance with the CPSIA. They tell her, "Listen, these things aren't intended for kids. We are not subject to that law and refuse to test. If you don't like it, buy someone else's buttons (etc.)." That rules them out as suppliers because she can't afford to test. Each such answer creates yet another off-limits supplier and supply item.

I wish I could say any of this is surprising to me. In fact, it is not. I spoke about this particular subject ONE YEAR AGO at the CPSC on November 6, 2008. Here's the video that segment of the speech:



[The first and third parts of this old speech are also worth watching. Old but good. I stand by the speech, although some minor things have changed since then.]

This subject is rather relevant right now. Hey, CPSC, are you actually considering market feedback on your component testing concept? I have made numerous points about component testing and hope you are listening. Here's another one (it's a repeat but please think about it anyway): IF you give us "relief" by allowing us to use the tests provided by our suppliers, what are you going to do to force suppliers from outside the market to provide test reports? How will your rule provide relief to Ms. Barrette above? This problem is EXACTLY what I highlighted last November. If component testing won't solve her supply problem for her, it won't work for me. And, PLEASE, watch my video above and take note of the various other testing fantasies that component testing WON'T resolve. As I have said innumerable times, test reports do not equal safety. Supply chain management and risk assessment does. In this case, your wonderful CPSIA has gaps in it that make full and compulsive compliance impossible. The casualties are mounting.

As noted by others, we need the CPSC to stand for safety, not for the CPSIA. There is a consequence for the passage of time. Please do not assume that your efforts to clarify the law over a yawning 18-month period won't have a very real cost to those of us left in the children's market. And you are responsible for that cost.

It's time to tell Mr. Waxman and his buddies over in Congress what's wrong. Please don't kill us while you work up the nerve.

CPSIA - Riffing on Rocks

Now that rocks must be tested (by us humans, not by their manufacturer, the Almighty) for compliance with lead standards, it's also necessary to make sure they comply with ASTM F963. In another magnificent gift to mankind, Congress elected to convert ASTM F963, a perfectly good and workable voluntary safety standard into law as part of the CPSIA. This wasn't necessary. As Chairman Tenenbaum noted in her recent APEC speech: "The U.S. experience with safety standards has been that you get a great deal of product safety by relying on voluntary consensus standards coupled with regulatory authority to intervene quickly. In fact, my agency's statutes set a preference for voluntary standards over mandatory regulations. This places a lot of responsibility on industry." Imagine, another sign of excess in Congress' handiwork . . . .

Congress' grand gesture also wasn't helpful. Violations of the formerly voluntary standard now require an urgent report to be filed within 24 hours under Section 15(b). Let's be clear, ANY violation of ANY provision of just about ANY product safety law requires the emergency filing of a report to the CPSC as though the world is coming to an end. There is no materiality standard. In my next lifetime, please do not assign me to the department responsible for processing Section 15(b) filings at the CPSC.

Rocks, you may realize, are included in school science kits and also in toys. Once upon a time, we used rocks to learn about the environment and nature. Rocks happen to be present in our environment, no fault of ours but perhaps the Almighty had some purpose in mind. I imagine He thought rocks would inspire some kind of really cool law. And it did! In this case, if foolish educational companies want to sell rocks to schools or for inclusion in educational kits sold in toy stores, they must now test the rocks not only for lead but also for sharp points. Yes, rocks with sharp points need to be restricted under ASTM F963 for children aged eight years old or younger. The CPSC has yet to issue guidance to millions of curious Americans on how to manage this exposure when walking to the park or playing catch with the dog in the backyard.

Think of rocks you have seen. There are skipping rocks, those don't have sharp points. Those are kosher, presumably, if they pass the lead test. Other rocks, like shale, mica, magnetite, etc., are a bit more ragged in appearance, not to mention being dicey legally. They will probably fail the "sharp points" test under F963. Not only does that make them illegal, but it also could potentially trigger a Section 15(b) report and thereby a recall of the rocks. If you sell rocks for a living or as part of an educational business, how do you react to this kind of rule? Some options: (a) retool your kit around smooth stones (forget the educational value), (b) hand pick "good" rocks for each kit or sand the rocks down, (c) sell posters or picture cards of rocks, or (d) I have no idea what.

Rock suppliers cannot guarantee that rocks won't have sharp edges. They are rocks, after all. Suppliers will also swallow hard before testing rocks in a laboratory. It will be hard for them to deal with snickering employees of testing labs quoting on the latest load of rock tests, not to mention paying the bill. Many will just skip the tests and possibly the entire market. Posters will be our means of teaching Earth Science. I am sure the Chinese, Japanese and Germans are having a good laugh about the self-destruction we are merrily implementing to their benefit.

And if you have a problem, what are you supposed to do with all the deadly rocks? It would certainly not be very public-spirited to put such dangerous items in the city dump. Perhaps we should send them to Congress?

Is there a testing standard for rocks in the head? Is the concern lead, sharp points or that irritating rattling noise? I certainly hope there are vigorous use and abuse tests for rocks in the head - perhaps all the shaking might make somebody wake up.

CPSIA - Dents in the Education Market

The impact of the CPSIA on the educational market is getting more and more worrisome. Two recent events shocked me for their implications. First, Michael Warring of American Educational Products reports that a school opted to stop using AmEP's rocks to teach Earth Science and will instead rely on a POSTER. Not quite the same educational experience . . . . Yes, the school has become convinced that rocks are too dangerous for kids to touch. Before you laugh too hard, just remember it might be your school district that made this choice. In a "fear of everything" world, this kind of ridiculous decision-making will be more and more common. The continued ragging of consumer groups about "toxic toys" sullies the reputation of all good companies and their good products. In this case, rocks take on the "toxic" tag because they contain uncontrollable amounts of base elements found in nature. If only we could create laws to restrain Mother Nature!

I wish teaching Earth Science by way of a poster was my biggest concern. I have been on record for a long time worrying about how Science would be treated under this terrible law. For many reasons, science items are particularly exposed. That does not mean they are dangerous - their record for safe use is sterling - but under the rigid and unthinking arbitrary standards of the CPSIA, they are verboten, whether it makes sense or not. Up to now, perhaps you thought this issue was simply a product of my feverish imagination. Then comes along the Potato Clock. This clever product can be purchased from more than one source, and is also a DIY home science project, perfect for Science Fairs. Please note that the homemade Potato Clock utilizes "dangerous" items like nails, clips, wire, batteries, etc. Welcome to science education . . . .

Anyhow, recently a manufacturer of the Potato Clock decided to test its version for compliance with the newfangled CPSIA. In their eager beaver-ness, they shot themselves in the foot, discovering (horrors) that the insulation on the product's potato wires contain trace amounts of lead over the arbitrary limits of CPSIA. Not that anyone has ever been hurt from wire insulation (at least not from nibbling on it). Unfortunately, safety is the least of anyone's concerns under the CPSIA.

The actual knowledge of the product's testing failure precipitated the kind of CPSIA horror story that has been interfering with my sleep for months. First, the company decided that since it now knew of the test failure, it had an immediate reporting obligation under CPSIA Section 15(b). In addition, they concluded they had an obligation to immediately stop sale, since continuing to sell would be another "knowing" violation - yes, kids, that's a felony with possible penalties of jail time and asset forfeiture (goodbye house and car!).

Presumably, the executives at this company could not imagine going to jail for selling Potato Clocks as they had for years, but heck, Congress writes the rules. The CPSC, apparently, upon receiving this (unwanted) 15(b) report concurred - yep, the wire insulation exceeds the standard, and yep, you have to stop sale. No recall was required by the CPSC BUT the company appears to have decided almost immediately that an informal recall was mandated. Why might they have decided such a thing? Well, perhaps they had a generalized fear of liability from dealers who might be sued for selling this "dangerous" device if it ever came to light that the product had impermissible lead in the wire insulation. That seemingly uncontrollable situation forced the company's hand and despite the fact that the CPSC had no interest in a recall, the company sent out letters demanding that dealers immediately stop sale and return the devices to the company.

Okay, what's the problem? Aren't we all "safer" now that this "scourge" has been removed from store shelves? Well, hold on a moment. First of all, the product is not even theoretically considered "dangerous". This is a classic example of a hyper-technical violation of the CPSIA that entraps innocent and useful products. It's not a question of safety for anyone, including the CPSC, the company - and you. Stopping sale of this item made NO ONE SAFER - it only made the company poorer and left schools with less equipment to teach science.

There are some huge problems here. First, please note that this series of unfortunate events was driven by a well-intentioned company trying to comply with the law. Their reward - losses in the tens of thousands of dollars. Second, after learning that no good deed goes unpunished, the company began to think in terms of possible liabilities. With "actual knowledge" being irrefutable, the liability exposure under the law by acting sensibly skyrocketed, compelling the company to act self-destructively. Thus, the company imposed a recall on itself for a product everyone acknowledges is safe, removing it from schools and homes. Third, the company went further than the regulators demanded, all to minimize its exposure to lawsuits and possible criminal charges - for selling a Potato Clock. There is no way to stop this chain of events under this draconian law - ask yourself what you would have done. This story is going to be EVERYONE'S story soon. Get used to the idea.

But the WORST part of this story, the most chilling, is the part about the wire insulation. The Potato Clock was recalled for having too much lead in the wire insulation. Why did it have lead in it at all? Wire insulation contains lead because it is recycled vinyl, probably recovered principally from scrap of other wire. Remember, recycling is good for our planet, and responsible companies try to use recycled materials whenever possible. Only virgin vinyl can be certified lead-free. A switchover to virgin vinyl insulation would be very costly and would means that the old vinyl wouldn't be recycled anymore. That won't happen.

The real problem comes from the fact that the Potato Clock utilizes "ordinary" wire. Everyone and everything utilizes "ordinary" wire. No specially-coated wire is used in children's products and even if it were available, it would be too expensive for this kind of application. Potato Clocks should use "ordinary" wire. If ordinary wire will always fail the CPSIA standards because of its insulation, then everything using wire in schools can't be sold for use by children under 13 years of age. This means, among other things, no electricity education before the 7th grade in this country (and only for the 13 year olds in the room - the 12 year olds will have to leave the room until their birthday). Call me crazy, but I think that's bad public policy. I am not aware that teaching basic science is illegal in China, India, Germany, Australia, Canada, etc. Only in the land of idiots is a rule like this possible.

This will not be the end of the devastation of science education in this country. I have previously noted that microscope light bulbs have a little dot of solder on their base that will fail the lead tests. That means no more light for our school microscopes. Oh well. Other items commonly used for science education include fasteners (nails, screws and bobby pins), wire, magnets, rocks, glass and crystals, metal cups, aluminum foil, steel wool, switches, solar panels, lab equipment like thermometers, scales and ceramic ware, motors, aquariums - the list goes on and on. These items won't make it under the CPSIA for many reasons, some economic and some physical. NONE of them will fail because they are unsafe or because they have poisoned children in schools. Still, American elementary science education will be severely damaged thanks to your friends in Congress.

Given the light and uneven resistance to this law by the general public, I wonder at what point people will start to doubt the "wisdom" of their Congressional leaders on their fancy new safety scheme. I have spoken to members of the press who became interested in the CPSIA issue when their school book fair outlawed the sale of used books (no doubt in homage to Thomas Moore's advice to sequester old books until they are proven "safe"). What about everyone else? Perhaps when people realize their kids are learning about rocks from pictures (to keep them safe!) and are not allowed to have direct, hands-on science experiences until Congress deems it safe (in the 7th or 8th grade, depending on the date of your child's birth), they might start asking a few probing questions. It's about time.

There's no excuse for this. Rise up, America, before Congress allows this law to rot out your educational system!