Hope your kids don't need hats. Perhaps you are aware that absent Congressional action, the new 100 ppm lead standard will be imposed retroactively by August 14th. The five Commissioners have requested that this provision be applied prospectively (they made this request in January 2010) yet Congress has done nothing about it.
As a matter of fact, now that you mention it, they haven't done anything about any of the problems under the CPSIA. I guess as Rachel Weintraub suggests, more "discussion" is needed.
Anyhow, I received the below letter (excerpts are reproduced only) from a maker of children's hats. Anyone out there ever heard of lead poisoning from a hat? Me, either. Nevertheless this company is subject to the stupid rules of the CPSIA for reasons best explained by Henry Waxman, and are now being required to prove up the "safety" of their hats.
So how do you expect hat companies to respond to this kind of request? Do you think they can afford the tests? To employ the people to administer the tests, apply the tracking labels, maintain the records, deal with all the paper-pushing by their customers, pay for the lawyers, fill out the forms and so on? I can think of several likely replies. First, cut the product line. Don't waste money on testing so many hats. Second, simplify the product line. Remember cute hats with lots of colors? Thing of the past. Better snap 'em up while you can. Monochrome is the new rainbow. Third, make hats for kids over 12 or for adults. Then you can sprinkle your little hats with lead to your heart's content. No one will care.
Oh, I know, natural fibers and certain fabrics don't need to be tested. Yes, but my customers don't care much for these niceties. They want a piece of paper for the files. If you think we test only when we have to, you are wrong. That's the bare minimum. Most tests are repeated or substantially exceeded, even beyond the absurd levels required by law. This hat company was pretty depressed by the news delivered by Amazon. Get used to it.
Or go pick up some hats right now. If you have little kids, buy them in several sizes while you're at it. No time like the present. . . .
Amazon Letter (excerpts):
Dear Amazon Vendor:
The Federal Government enacted the Consumer Product Safety Improvement Act of 2008 (the “Act”) that, in addition to other requirements, prescribes strict limits on the content of lead and phthalates in products intended for children.
New stricter limits on lead in children’s products will go into effect on August 14, 2011. This message outlines the steps Amazon will require vendors to take to confirm that their products comply with the new stricter lead limits affecting children’s products.
Vendors are responsible for thoroughly familiarizing themselves with all the requirements of the Act and for tracking and complying with any regulations issued by Consumer Product Safety Commission (CPSC). Additional information on the Act is available on the CPSC website at www.cpsc.gov. Specific provisions of the Act discussed in this letter are for ease of reference only.
Actions Required: What you need to do
By July 31, 2011, each vendor must confirm and report to Amazon.com that all of your children’s products (i) in Amazon.com’s inventory, as reported to you in Vendor Central, and (ii) in transit or shipped to Amazon.com, will comply with applicable limits set forth in Column I.
Limit: Lead 100 ppm
Effective Date of Limit per the Act: August 14, 2011
Products shipped to Amazon must comply by: July 31, 2011
Noncompliant products are subject to return to Vendor: August 7, 2011
Step 1: Verify that your products are compliant with the lead content requirements going into effect on August 14, 2011.
Vendors are responsible for determining whether the products they sell on Amazon.com are compliant with the new lead requirements.
Showing posts with label Small Business. Show all posts
Showing posts with label Small Business. Show all posts
Tuesday, July 26, 2011
Sunday, July 24, 2011
CPSIA - Rachel Weintraub's Distortions Justify Dem Refusal to Amend the CPSIA
Democrat tool Rachel Weintraub is never at a loss for words on the topic of CPSIA and true to form, she has today published more misstatements, distortions and innuendo to bolster Dem efforts to block amendment of the CPSIA. In the space below, I rebut Ms. Weintraub's "view of the world".
It is worth noting that a much more erudite explanation of the pending CPSIA Amendment (ECADA) was published side-by-side with Weintraub's smear campaign, namely "Fix bill would make products safer, not less so" by Eric Stone. For those who don't know Eric, his credentials include more than 33 years at the CPSC, including as Legal Director in the Office of Compliance and as Acting Director of the Recalls and Compliance Division. He faced the real questions of safety at the agency and made the judgments subject to the scrutiny of the public, Congress and the legal system.
As Eric Stone notes, "In crafting its new safety bill, Congress proved that moral outrage and good intentions do not necessarily result in good law." Amen.
My responses to Ms. Weintraub are in blue and red.
Don't set safety clock backwards for kids products
By Rachel Weintraub
Florida Sun-Sentinel
July 24, 2011
The House Energy and Commerce Committee will soon vote on HR 1939, the "Enhancing CPSC Authority and Discretion Act of 2011," or ECADA, a bill that guts the Consumer Product Safety Improvement Act, a vital law that keeps unsafe toys and other dangerous products off the shelves.
RW - It is a typical ploy of the Lefties opposing amendment of the CPSIA to frame everything in terms of toys. Toys are but one category affected by this awful law, but by using it as the CPSIA poster child, Weintraub puts you where she wants you - afraid of ECADA's potential effects on innocents by "evil toymakers". Aside from the fact that "evil toymakers" are no more or less prevalent in our society than any other category of "evil" something-or-anothers, Weintraub's characterization greatly distorts what CPSIA really is. CPSIA applies to ANYTHING that is intended to be sold to children. The list is well-known but, as a reminder, it includes t-shirts and shoes, carpets, pens, ATVs, bikes, books, science kits, DVDs and CDs, furniture, brass musical instruments, rhinestones and so on. Focusing on toys is just to get you going.
Congress passed CPSIA by an overwhelming, bipartisan vote in 2008, and President Bush signed the bill into law that year. After a year of careful deliberations, CPSIA's passage followed a record number of recalls of children's products that injured and killed children. The measure gave new life to the U.S. Consumer Product Safety Commission, a weakened federal oversight agency that had failed in its meager efforts to protect the public's safety. The law represents a giant step forward in protecting America's children.
RW - Another defensive ploy of the CPSIA defenders is the "infallibility of Congress" argument, namely that everyone voted for it so why is anyone against it now. This argument only makes sense if you don't think about it too much. For one thing, the CPSIA was passed in anger. Have you ever said or done anything in anger that you later regretted? That point aside, it is important to consider that this law was devised by a Dem-controlled Congress dominated by the strong-willed Left Winger Nancy Pelosi of San Francisco. Pelosi takes no prisoners and tolerates no dissent among her Dem followers. The law was dictated by Dems to the Republicans, as insiders acknowledge, and was passed just ahead of the Obama wave in the Presidential election cycle. The votes of Republicans for such an extreme law cannot properly be deemed "voluntary" in any conventional sense. Everyone knew this law was a great chess move by the Dems, forcing Republicans to go along, and even President Bush got into the act by agreeing to sign to protect his party. Weintraub's distorted rewrite of history is a good illustration of the rule that history is written by the victors. Consider the source . . . .
CPSIA currently requires that children's products be tested for safety before they arrive on store shelves — something that many consumers already assumed was happening.
RW - Another oft-repeated consumer group assertion, never proven. It has always struck me that this argument is just transference. I have no doubt that folks like Weintraub always wanted this, and simply assume that everyone shares their "common sense" desires and fears.
It sets limits on lead in children's products, sets infant product and toy safety standards, and bans certain phthalates, which are chemicals linked to a variety of health risks. The law also creates a much-needed public database where consumers can easily report and research product safety problems.
We have already seen the successful results of CPSIA. Most recently, on June 28, 2011, new crib standards went into effect, which means that cribs sold in stores must meet the most protective safety standards in the world. This will give parents and caregivers the long-overdue peace of mind that when they purchase a new crib, it will be a truly safe place for their baby.
Some small toy manufacturers have raised concerns about the costs of testing their products to the new safety standards. These concerns, and narrowly tailored ways to reduce the costs for very small children's product manufacturers, are useful to discuss.
RW - The nauseating cynicism of this remark cannot go unaddressed. Ms. Weintraub argued for two years that the agency "needed time" to implement the law and to work out the kinks. At that time, she and the other Dems argued that there was "nothing wrong" with the CPSIA that the CPSC couldn't fix in its implementation and that consideration of legislative fixes was not merited until that process was complete. Three years later we are still subject to this on-going implementation . . . that is, those of us who haven't gone belly up. Weintraub expressed little interest in "discussing" these issues way back then.
Later, Ms. Weintraub tried to justify Henry Waxman's lame-o effort at a cursory amendment of the CPSIA that offers negligible relief. Here is an excerpt from her House testimony dated April 28, 2010 (15 months ago) on this topic:
"Special provisions for small businesses includes allowing certain businesses to be exempt from third party testing when the Commission finds that reasonable testing methods assure compliance with relevant consumer product safety standards. We believe, however, that the term "small batch manufacturer" is defined too broadly. We commend the fact that the language does not allow small batch manufacturers to obtain exceptions for durable infant or toddler products or lead paint, cribs, pacifiers, small parts, children’s metal jewelry, baby bouncers, walkers and jumpers. Because of the fatal nature of the defects in many of these types of products, as demonstrated by recalls in the past, all manufacturers should be required to meet the same safety and testing requirements. We could not accept a broadening of either the definition of small batch manufacturer or a limitation of those products not covered by this provision." [Emphasis added]
The CPSC never did identify any such "reasonable testing methods" even though the "hunt" has gone on for three years now. Even Ms. Weintraub must blush when she tells you that such issues deserve "discussion".
Unfortunately, instead of fixing concerns of the truly small manufacturers, HR 1939 goes too far and rolls back important consumer protections created by CPSIA in a number of ways.
HR 1939 reduces safety testing for children's products by undermining independent safety testing requirements for most children's products. This would place us in the same dangerous situation we were in 2007 and 2008, when millions of beloved toys were recalled because of excessive lead paint, strong magnets that when swallowed in multiples could rip apart a child's intestines and chemicals that turned into the date-rape drug when swallowed.
RW - The issue in 2007 and 2008 was NOT that the law did not protect consumers. In fact, if anything, the issue was that the agency did not (adequately) protect consumers. The bad behavior that prompted the CPSIA was clearly illegal, as the agency could act to enforce if it so chose. After all, they issued hundreds of recalls under prior law. Please pause and give that a little thought. Weintraub's argument is pure urban legend, but helpful urban legend for the tall tale she is trying to sell.
It is also worth noting that Gib Mullan, the then head of Compliance at the CPSC admitted during the second session question-and-answer session at the CPSC Tracking Labels hearing on May 12, 2009 that the agency had never seen the strong magnet hazard evidenced by Magnetix previously and at first mistook it as a "small parts" issue. No law can prevent the unknown and the not previously experienced from happening. That is a safety fantasy. In addition, the "date-rape drug" incident involved an unapproved change in materials by a factory which no testing regime would have caught (CPSIA or not). The safety issue was completely unprecedented and the product was immediately recalled without argument by a very safety conscious toymaker. Only in Weintraub's self-serving world is this incident useful . . . to terrorize. Under most circumstances, it should be held up as a great public-private partnership and a sign that there are good people in the industry.
Under this bill, virtually all toys would no longer have to be tested for safety before they come into our homes — these products would be safety-tested only if and when CPSC undertook a laborious and complicated series of steps, including a cost-benefit analysis that emphasizes testing costs over health and safety benefits.
RW - Weintraub here spurns the President's Executive Order which MANDATES cost-benefit analysis by the CPSC. This arch position conforms to the surprising world view of Bob "Over My Dead Body" Adler and Inez Tenenbaum and certainly suits their Dem agenda. It is, unfortunately, an affront to the President's order. It is also economic nonsense. The OPPOSITE is correct, at least according to the Nobel Prize committee which awarded the 1991 Economics Prize to Ronald Coase for his work proving the need for regulatory cost-benefit analysis. Mr. Coase proved that ignoring cost-benefit analysis exposes all of us to the risk of being impoverished by government regulation. Thanks, Rachel, for the great idea!
It is unclear if CPSC would ever have the resources, time or information to complete what this bill demands of them, and it is therefore unclear if toys would ever be subject to independent testing. Independent testing not only prevents unnecessary injuries to children, but it can also prevent costly recalls for the manufacturer — a benefit to consumers as well as manufacturers.
RW - Here Rachel spins an even bigger tall tale, that preserving mandatory testing is in manufacturers' best interests. Apparently she is the only one who knows this. The people who actually work for companies affected by this rule have been howling for three years-plus. Here Rachel sets us all straight - the problem is we're wrong and she's right. Oh, now I see it! Her reasoning relies on the urban legend that in the absence of mandated testing, testing will cease. That's nonsense and is not supported by data. We have been testing since I got to Learning Resources, more than 20 years ago. So, if mandated testing is necessary to force testing, why were we testing way back then? Simple - we wanted to know we were complying with the standards. Standards drive testing, and enforcement can make testing prevalent, even universal. Mandated testing just raises costs, unfortunately. I have previously addressed this issue in a blogpost.
HR 1939 increases the amount of lead that would be permitted in children's products. CPSIA currently requires that all parts of children's products comply with a single, unambiguous standard for lead content. The proposed legislation would replace that clarity with a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts and other factors. As a result, parents and other consumers will no longer have the confidence that all parts of all children's products are safe for their children. Lead is a known toxin where even small amounts can be harmful by decreasing a child's IQ. There is no reason why there shouldn't be a single, strong standard that simply keeps lead out of children's products.
RW - No reason, huh? Space does not permit me to reduce this absurd statement to rubble. I have been writing about the many common sense reasons to modify standards for three years now. ECADA as a matter of fact does very little to change standards except to codify some sensible concessions already made by the CPSC in stays applying to metals. If you are terrorized by the prospect of bicycle licking or the horrors of playing brass instruments in the school band, ECADA's changes will no doubt keep you up at night. Your fears are nothing that our proposed National Xanax Fund can't address.
The idea that different standards for different products aimed at different ages of children are somehow "defective" flies in the face not only of common sense but also the regulatory tradition at the CPSC. Before whackjobs began to dominate the safety discussion, and before the agency had its brain removed by Congress, the regulators were able to see the sense of crafting different rules for two year olds, six year olds and twelve year olds. And nobody thought the same rules should apply to rhinestones, pens, ATVs and books. If you are an experienced parent, you might know something about the need to modify rules for different ages of children. I have tried to regulate teenagers with the same rules as toddlers and received some "pushback". And when I try to keep toddlers safe by applying sensible rules designed for teenagers, that doesn't seem to work either.
HR 1939 undermines the effectiveness of the new crib safety standard. The bill would carve out a large exception to the bipartisan standard for cribs in child-care facilities. Under the bill, some child-care facilities would not have to replace existing fixed-side cribs even if the cribs violate the most basic crib safety standards — slats too far apart, non-compliant corner posts and failing mattress supports. Parents should be assured that the cribs their babies sleep in meet the strongest crib standards — both at home and in child-care facilities. The new, robust crib standards just went into effect for new cribs consumers can buy in stores and will apply to hotels, motels and child-care facilities in 18 months. Carving out child-care center cribs from this important protection moves the safety bar backwards.
RW - I have tried to avoid biting on the bait of the consumer group attacks on ECADA for the innocuous and sensible crib rule changes. It is in Ms. Weintraub's interest to make you feel that there is some sort of evil cabal dominating the Republican Party which somehow induces them to play roulette with your babies' lives. Anyhow, it's all a fiction but a helpful fiction to Ms. Weintraub's purpose, namely to subvert efforts to amend the CPSIA. Here is the "deadly" language that Ms. Weintraub protests so intensely:
"(B) SPECIAL RULE FOR FIXED-SIDE CRIBS SUBJECT TO CERTAIN STATE OR LOCAL LAW REQUIREMENTS- Paragraph (1) shall not apply to a fixed-side crib that has not been recalled and that is offered or provided for use in a licensed child care facility (other than a family child care home) that is subject to the following requirements under the law of a State or a political subdivision of a State: (i) The facility may not allow a child to remain in a crib for any significant amount of time while the child is awake, (ii) The facility may not place in a crib a child over the age of 16 months, (iii) An adult must be present whenever a child is in a crib."
Ms. Weintraub fails to deliver evidence that this exceedingly modest change could harm children based on actual injury data. She just wants you to push the panic button. ECADA only permits certain legacy FIXED SIDE cribs to remain in service. I thought fixed side cribs were the "answer". Not if their inclusion in ECADA might help get it passed, apparently.
HR 1939 allows the use of dangerous phthalates, which are hormone-disrupting chemicals that have been added to child-care articles like teething rings. This proposed bill would undermine CPSIA's landmark protections against phthalates by allowing large, undefined exemptions to both the prohibition and interim bans on phthalates in toys and child-care articles.
RW - Rachel again ventures into Whopperville to scare you about phthalates. Let's start by deciding how "dangerous" phthalates are. Ms. Weintraub reasons that if (the infallible) Congress banned them, the chemicals are ergo dangerous. The law, in fact, only bans three chemicals permanently and has directed the agency to investigate another three. On two previous occasions the agency has done just that . . . and concluded that phthalates don't present a risk to children. Ms. Weintraub omits to let you know that this provision was added to CPSIA at the last moment, without hearings or investigation, by California Senator Diane Feinstein of San Francisco and mentor to Nancy Pelosi. Aha. The science on phthalates is hardly an open-and-shut case - just watch 60 Minutes for perspective.
Ultimately, the greatest disservice to truth performed by Ms. Weintraub here is to distort what measly relief is being offered. ECADA only allows us to stop testing components that cannot be touched or licked by kids. That's it. The actual words: "ACCESSIBLE COMPONENT PARTS- Effective on the date of enactment of this Act, subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3) shall apply to any accessible, plasticized component part of a children’s toy or child care article."
HR 1939 undermines the new CSPC product safety database. This new database allows public access to consumer complaints about product safety problems while giving the industry ample opportunity to view and comment upon such safety-related reports before they are posted. The database, available at http://www.saferproducts.gov, just went live in March. It will help consumers research products, help CPSC identify emerging hazard trends and help prevent unnecessary deaths and injuries. HR 1939 would place onerous hurdles on those seeking to report a safety problem, thereby discouraging the sharing of potentially lifesaving information with other consumers, companies and the government.
RW - Oy vey. There has been so much written on this subject that I can't bear to write it again. Ms. Weintraub intentionally ignores any point inconsistent with her political agenda. I will leave it at that, but feel free to pour over my prior writings on the database (tagged on the side of the blog) for further details.
Consumers demanded and received strong product safety reform from Congress in 2008. Undermining these important product safety improvements puts all of our children at risk. HR 1939 will not protect our children from product safety hazards. Rather, HR 1939 rolls the safety clock backwards and creates huge and unnecessary loopholes in our nation's safety net.
RW - One last point, to quote Eric Stone: "ECADA gives CPSC broader subpoena and investigational authority. Not surprisingly, opponents do not mention such provisions since they do not fit the 'Republican-industry conspiracy' narrative." I love the "Republican-industry conspiracy narrative" part. You can see how that might work well for Rachel.
Rachel Weintraub is director of product safety and senior counsel at the Consumer Federation of America in Washington, D.C.
It is worth noting that a much more erudite explanation of the pending CPSIA Amendment (ECADA) was published side-by-side with Weintraub's smear campaign, namely "Fix bill would make products safer, not less so" by Eric Stone. For those who don't know Eric, his credentials include more than 33 years at the CPSC, including as Legal Director in the Office of Compliance and as Acting Director of the Recalls and Compliance Division. He faced the real questions of safety at the agency and made the judgments subject to the scrutiny of the public, Congress and the legal system.
As Eric Stone notes, "In crafting its new safety bill, Congress proved that moral outrage and good intentions do not necessarily result in good law." Amen.
My responses to Ms. Weintraub are in blue and red.
Don't set safety clock backwards for kids products
By Rachel Weintraub
Florida Sun-Sentinel
July 24, 2011
The House Energy and Commerce Committee will soon vote on HR 1939, the "Enhancing CPSC Authority and Discretion Act of 2011," or ECADA, a bill that guts the Consumer Product Safety Improvement Act, a vital law that keeps unsafe toys and other dangerous products off the shelves.
RW - It is a typical ploy of the Lefties opposing amendment of the CPSIA to frame everything in terms of toys. Toys are but one category affected by this awful law, but by using it as the CPSIA poster child, Weintraub puts you where she wants you - afraid of ECADA's potential effects on innocents by "evil toymakers". Aside from the fact that "evil toymakers" are no more or less prevalent in our society than any other category of "evil" something-or-anothers, Weintraub's characterization greatly distorts what CPSIA really is. CPSIA applies to ANYTHING that is intended to be sold to children. The list is well-known but, as a reminder, it includes t-shirts and shoes, carpets, pens, ATVs, bikes, books, science kits, DVDs and CDs, furniture, brass musical instruments, rhinestones and so on. Focusing on toys is just to get you going.
Congress passed CPSIA by an overwhelming, bipartisan vote in 2008, and President Bush signed the bill into law that year. After a year of careful deliberations, CPSIA's passage followed a record number of recalls of children's products that injured and killed children. The measure gave new life to the U.S. Consumer Product Safety Commission, a weakened federal oversight agency that had failed in its meager efforts to protect the public's safety. The law represents a giant step forward in protecting America's children.
RW - Another defensive ploy of the CPSIA defenders is the "infallibility of Congress" argument, namely that everyone voted for it so why is anyone against it now. This argument only makes sense if you don't think about it too much. For one thing, the CPSIA was passed in anger. Have you ever said or done anything in anger that you later regretted? That point aside, it is important to consider that this law was devised by a Dem-controlled Congress dominated by the strong-willed Left Winger Nancy Pelosi of San Francisco. Pelosi takes no prisoners and tolerates no dissent among her Dem followers. The law was dictated by Dems to the Republicans, as insiders acknowledge, and was passed just ahead of the Obama wave in the Presidential election cycle. The votes of Republicans for such an extreme law cannot properly be deemed "voluntary" in any conventional sense. Everyone knew this law was a great chess move by the Dems, forcing Republicans to go along, and even President Bush got into the act by agreeing to sign to protect his party. Weintraub's distorted rewrite of history is a good illustration of the rule that history is written by the victors. Consider the source . . . .
CPSIA currently requires that children's products be tested for safety before they arrive on store shelves — something that many consumers already assumed was happening.
RW - Another oft-repeated consumer group assertion, never proven. It has always struck me that this argument is just transference. I have no doubt that folks like Weintraub always wanted this, and simply assume that everyone shares their "common sense" desires and fears.
It sets limits on lead in children's products, sets infant product and toy safety standards, and bans certain phthalates, which are chemicals linked to a variety of health risks. The law also creates a much-needed public database where consumers can easily report and research product safety problems.
We have already seen the successful results of CPSIA. Most recently, on June 28, 2011, new crib standards went into effect, which means that cribs sold in stores must meet the most protective safety standards in the world. This will give parents and caregivers the long-overdue peace of mind that when they purchase a new crib, it will be a truly safe place for their baby.
Some small toy manufacturers have raised concerns about the costs of testing their products to the new safety standards. These concerns, and narrowly tailored ways to reduce the costs for very small children's product manufacturers, are useful to discuss.
RW - The nauseating cynicism of this remark cannot go unaddressed. Ms. Weintraub argued for two years that the agency "needed time" to implement the law and to work out the kinks. At that time, she and the other Dems argued that there was "nothing wrong" with the CPSIA that the CPSC couldn't fix in its implementation and that consideration of legislative fixes was not merited until that process was complete. Three years later we are still subject to this on-going implementation . . . that is, those of us who haven't gone belly up. Weintraub expressed little interest in "discussing" these issues way back then.
Later, Ms. Weintraub tried to justify Henry Waxman's lame-o effort at a cursory amendment of the CPSIA that offers negligible relief. Here is an excerpt from her House testimony dated April 28, 2010 (15 months ago) on this topic:
"Special provisions for small businesses includes allowing certain businesses to be exempt from third party testing when the Commission finds that reasonable testing methods assure compliance with relevant consumer product safety standards. We believe, however, that the term "small batch manufacturer" is defined too broadly. We commend the fact that the language does not allow small batch manufacturers to obtain exceptions for durable infant or toddler products or lead paint, cribs, pacifiers, small parts, children’s metal jewelry, baby bouncers, walkers and jumpers. Because of the fatal nature of the defects in many of these types of products, as demonstrated by recalls in the past, all manufacturers should be required to meet the same safety and testing requirements. We could not accept a broadening of either the definition of small batch manufacturer or a limitation of those products not covered by this provision." [Emphasis added]
The CPSC never did identify any such "reasonable testing methods" even though the "hunt" has gone on for three years now. Even Ms. Weintraub must blush when she tells you that such issues deserve "discussion".
Unfortunately, instead of fixing concerns of the truly small manufacturers, HR 1939 goes too far and rolls back important consumer protections created by CPSIA in a number of ways.
HR 1939 reduces safety testing for children's products by undermining independent safety testing requirements for most children's products. This would place us in the same dangerous situation we were in 2007 and 2008, when millions of beloved toys were recalled because of excessive lead paint, strong magnets that when swallowed in multiples could rip apart a child's intestines and chemicals that turned into the date-rape drug when swallowed.
RW - The issue in 2007 and 2008 was NOT that the law did not protect consumers. In fact, if anything, the issue was that the agency did not (adequately) protect consumers. The bad behavior that prompted the CPSIA was clearly illegal, as the agency could act to enforce if it so chose. After all, they issued hundreds of recalls under prior law. Please pause and give that a little thought. Weintraub's argument is pure urban legend, but helpful urban legend for the tall tale she is trying to sell.
It is also worth noting that Gib Mullan, the then head of Compliance at the CPSC admitted during the second session question-and-answer session at the CPSC Tracking Labels hearing on May 12, 2009 that the agency had never seen the strong magnet hazard evidenced by Magnetix previously and at first mistook it as a "small parts" issue. No law can prevent the unknown and the not previously experienced from happening. That is a safety fantasy. In addition, the "date-rape drug" incident involved an unapproved change in materials by a factory which no testing regime would have caught (CPSIA or not). The safety issue was completely unprecedented and the product was immediately recalled without argument by a very safety conscious toymaker. Only in Weintraub's self-serving world is this incident useful . . . to terrorize. Under most circumstances, it should be held up as a great public-private partnership and a sign that there are good people in the industry.
Under this bill, virtually all toys would no longer have to be tested for safety before they come into our homes — these products would be safety-tested only if and when CPSC undertook a laborious and complicated series of steps, including a cost-benefit analysis that emphasizes testing costs over health and safety benefits.
RW - Weintraub here spurns the President's Executive Order which MANDATES cost-benefit analysis by the CPSC. This arch position conforms to the surprising world view of Bob "Over My Dead Body" Adler and Inez Tenenbaum and certainly suits their Dem agenda. It is, unfortunately, an affront to the President's order. It is also economic nonsense. The OPPOSITE is correct, at least according to the Nobel Prize committee which awarded the 1991 Economics Prize to Ronald Coase for his work proving the need for regulatory cost-benefit analysis. Mr. Coase proved that ignoring cost-benefit analysis exposes all of us to the risk of being impoverished by government regulation. Thanks, Rachel, for the great idea!
It is unclear if CPSC would ever have the resources, time or information to complete what this bill demands of them, and it is therefore unclear if toys would ever be subject to independent testing. Independent testing not only prevents unnecessary injuries to children, but it can also prevent costly recalls for the manufacturer — a benefit to consumers as well as manufacturers.
RW - Here Rachel spins an even bigger tall tale, that preserving mandatory testing is in manufacturers' best interests. Apparently she is the only one who knows this. The people who actually work for companies affected by this rule have been howling for three years-plus. Here Rachel sets us all straight - the problem is we're wrong and she's right. Oh, now I see it! Her reasoning relies on the urban legend that in the absence of mandated testing, testing will cease. That's nonsense and is not supported by data. We have been testing since I got to Learning Resources, more than 20 years ago. So, if mandated testing is necessary to force testing, why were we testing way back then? Simple - we wanted to know we were complying with the standards. Standards drive testing, and enforcement can make testing prevalent, even universal. Mandated testing just raises costs, unfortunately. I have previously addressed this issue in a blogpost.
HR 1939 increases the amount of lead that would be permitted in children's products. CPSIA currently requires that all parts of children's products comply with a single, unambiguous standard for lead content. The proposed legislation would replace that clarity with a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts and other factors. As a result, parents and other consumers will no longer have the confidence that all parts of all children's products are safe for their children. Lead is a known toxin where even small amounts can be harmful by decreasing a child's IQ. There is no reason why there shouldn't be a single, strong standard that simply keeps lead out of children's products.
RW - No reason, huh? Space does not permit me to reduce this absurd statement to rubble. I have been writing about the many common sense reasons to modify standards for three years now. ECADA as a matter of fact does very little to change standards except to codify some sensible concessions already made by the CPSC in stays applying to metals. If you are terrorized by the prospect of bicycle licking or the horrors of playing brass instruments in the school band, ECADA's changes will no doubt keep you up at night. Your fears are nothing that our proposed National Xanax Fund can't address.
The idea that different standards for different products aimed at different ages of children are somehow "defective" flies in the face not only of common sense but also the regulatory tradition at the CPSC. Before whackjobs began to dominate the safety discussion, and before the agency had its brain removed by Congress, the regulators were able to see the sense of crafting different rules for two year olds, six year olds and twelve year olds. And nobody thought the same rules should apply to rhinestones, pens, ATVs and books. If you are an experienced parent, you might know something about the need to modify rules for different ages of children. I have tried to regulate teenagers with the same rules as toddlers and received some "pushback". And when I try to keep toddlers safe by applying sensible rules designed for teenagers, that doesn't seem to work either.
HR 1939 undermines the effectiveness of the new crib safety standard. The bill would carve out a large exception to the bipartisan standard for cribs in child-care facilities. Under the bill, some child-care facilities would not have to replace existing fixed-side cribs even if the cribs violate the most basic crib safety standards — slats too far apart, non-compliant corner posts and failing mattress supports. Parents should be assured that the cribs their babies sleep in meet the strongest crib standards — both at home and in child-care facilities. The new, robust crib standards just went into effect for new cribs consumers can buy in stores and will apply to hotels, motels and child-care facilities in 18 months. Carving out child-care center cribs from this important protection moves the safety bar backwards.
RW - I have tried to avoid biting on the bait of the consumer group attacks on ECADA for the innocuous and sensible crib rule changes. It is in Ms. Weintraub's interest to make you feel that there is some sort of evil cabal dominating the Republican Party which somehow induces them to play roulette with your babies' lives. Anyhow, it's all a fiction but a helpful fiction to Ms. Weintraub's purpose, namely to subvert efforts to amend the CPSIA. Here is the "deadly" language that Ms. Weintraub protests so intensely:
"(B) SPECIAL RULE FOR FIXED-SIDE CRIBS SUBJECT TO CERTAIN STATE OR LOCAL LAW REQUIREMENTS- Paragraph (1) shall not apply to a fixed-side crib that has not been recalled and that is offered or provided for use in a licensed child care facility (other than a family child care home) that is subject to the following requirements under the law of a State or a political subdivision of a State: (i) The facility may not allow a child to remain in a crib for any significant amount of time while the child is awake, (ii) The facility may not place in a crib a child over the age of 16 months, (iii) An adult must be present whenever a child is in a crib."
Ms. Weintraub fails to deliver evidence that this exceedingly modest change could harm children based on actual injury data. She just wants you to push the panic button. ECADA only permits certain legacy FIXED SIDE cribs to remain in service. I thought fixed side cribs were the "answer". Not if their inclusion in ECADA might help get it passed, apparently.
HR 1939 allows the use of dangerous phthalates, which are hormone-disrupting chemicals that have been added to child-care articles like teething rings. This proposed bill would undermine CPSIA's landmark protections against phthalates by allowing large, undefined exemptions to both the prohibition and interim bans on phthalates in toys and child-care articles.
RW - Rachel again ventures into Whopperville to scare you about phthalates. Let's start by deciding how "dangerous" phthalates are. Ms. Weintraub reasons that if (the infallible) Congress banned them, the chemicals are ergo dangerous. The law, in fact, only bans three chemicals permanently and has directed the agency to investigate another three. On two previous occasions the agency has done just that . . . and concluded that phthalates don't present a risk to children. Ms. Weintraub omits to let you know that this provision was added to CPSIA at the last moment, without hearings or investigation, by California Senator Diane Feinstein of San Francisco and mentor to Nancy Pelosi. Aha. The science on phthalates is hardly an open-and-shut case - just watch 60 Minutes for perspective.
Ultimately, the greatest disservice to truth performed by Ms. Weintraub here is to distort what measly relief is being offered. ECADA only allows us to stop testing components that cannot be touched or licked by kids. That's it. The actual words: "ACCESSIBLE COMPONENT PARTS- Effective on the date of enactment of this Act, subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3) shall apply to any accessible, plasticized component part of a children’s toy or child care article."
HR 1939 undermines the new CSPC product safety database. This new database allows public access to consumer complaints about product safety problems while giving the industry ample opportunity to view and comment upon such safety-related reports before they are posted. The database, available at http://www.saferproducts.gov, just went live in March. It will help consumers research products, help CPSC identify emerging hazard trends and help prevent unnecessary deaths and injuries. HR 1939 would place onerous hurdles on those seeking to report a safety problem, thereby discouraging the sharing of potentially lifesaving information with other consumers, companies and the government.
RW - Oy vey. There has been so much written on this subject that I can't bear to write it again. Ms. Weintraub intentionally ignores any point inconsistent with her political agenda. I will leave it at that, but feel free to pour over my prior writings on the database (tagged on the side of the blog) for further details.
Consumers demanded and received strong product safety reform from Congress in 2008. Undermining these important product safety improvements puts all of our children at risk. HR 1939 will not protect our children from product safety hazards. Rather, HR 1939 rolls the safety clock backwards and creates huge and unnecessary loopholes in our nation's safety net.
RW - One last point, to quote Eric Stone: "ECADA gives CPSC broader subpoena and investigational authority. Not surprisingly, opponents do not mention such provisions since they do not fit the 'Republican-industry conspiracy' narrative." I love the "Republican-industry conspiracy narrative" part. You can see how that might work well for Rachel.
Rachel Weintraub is director of product safety and senior counsel at the Consumer Federation of America in Washington, D.C.
Thursday, April 7, 2011
CPSIA - Three Dem CPSC Commissioners Accuse Industry (You) of Dosing Kids with Lead
In a revolting display of cowardly fear mongering, the three Democratic CPSC Commissioners yesterday wrote the House Committee on Energy and Commerce and its Subcommittee on Commerce, Manufacturing and Trade to protest the proposed CPSIA amendment. In this letter, in defense of the lead-in-substrate provisions, the Dems sow fear by suggesting what you might do:
"The CPSIA set one of the most protective lead limits for children's products in the world. The public health community continues to hold its overwhelming consensus: There is no safe level of lead. We oppose any change in the law that would lead to an increase in the DOSES OF LEAD to which our children are exposed on a daily basis, particularly when the marketplace has for the most part already adjusted to lower lead levels and is well on its way to getting the lead out of children's products." [Emphasis added]
Hmmmm. Apparently we evil toymakers, sinister educational product makers, monstrous t-shirt and jeans producers, venal shoemakers, diabolic rhinestone merchants, demonic ATV purveyors, fiendish motocross enthusiasts, vile vending machine operators, corrupt jewelers, slimy resale shop owners, worthless book publishers, perverse pen companies, satanic carpet weavers - we all are just waiting for the CPSC to look the other way so we can "dose" children with lead.
This kind of asinine accusation normally would be something to deride and lampoon in this space, but in this case frankly, it's not at all funny. Here you have three CPSC Commissioners with a majority vote (including Chairman Inez Tenenbaum) going national with serious, maligning insults of our values and our integrity. They can hardly restrain themselves - they go further to assert that we have only "for the most part adjusted" to the new rules - you know, by firing people, cutting products, withdrawing from markets.
This is your "leadership" on the Commission. I want to vomit.
CPSC Commissioners are appointed by the President. I wonder if a better word is "planted".
The letters make clear where children have lead exposure risk. Lead in D.C. tap water, no, that's fine - what can anybody do about THAT? House paint, environmental sources - nah! No, the real problem is industry and its "dosing" through children's products. The last line of defense is the CPSIA. The three Dem Commissioners put it succinctly - change the law and poison children. Better to over-regulate than under-regulate because it's a zero-sum game, right?
As usual, the Dems don't mention that THEY CAN'T PRODUCE EVEN ONE INJURY VICTIM FROM LEAD-IN-SUBSTRATE IN CHILDREN'S PRODUCTS. There are more than 50 million children in this country in the regulated age group and no one can find a single injury victim - EVER. Nonetheless they apparently think it's perfectly fine to wag their fingers at us and accuse us of unspeakable acts.
Who'd say anything, anyhow? Won't get fooled again. . . .
I guess we have a hint here how these people might vote on the technological feasibility of 100 ppm. Giving them an extra year to lower the boom won't do anything to protect my employees or my customers - they are TELLING US that the die is cast. That's because you and I apparently want to "dose" children with lead the first chance we get! They reinforce the hyperbolic tone by standing pat on the age limits under the CPSIA - we NEED the 12 year old limit. Why? Because Mommy says so. Junk science to the rescue! We can't have kids eating their ATVs, can we?
Does anyone wonder why trust in this agency is destroyed beyond repair? Who in the business community would ever expect to get a fair shake from these consumer group front men? Government for all us? Hardly.
Defending themselves on a weak point, the Dems contend they are sympathetic to small business. Myself, I can't measure commitment by limp and syrupy words of consolation - I look at what they do, not what they say. These people have done precisely ZIPPO for small business after three years of begging, pleading, screaming. I am tired of hearing about how much they CARE about small business. [Guess who drafted the letter?] As a friend of mine used to say, it's bullpucky.
Here's a shocker: I actually agree with one thing these people say - that parents deserve safe products regardless of who makes them. Of course that makes sense (no one cares whether a tortfeasor is a big company or a small company) which is why I want sensible standards that apply equally to everyone. In this case, the government should stop telling us how to run our businesses. Make a reasonable set of standards based on a real and defined "substantial product hazard" standard and go from there. This is parent-friendly and quite workable for small business.
Of course, my suggestion would make these Democrats much less important and certainly less heroic. Their letter makes clear who "saved" America - the CPSIA, the Dems in Congress and the Dems on the Commission. They're the ones who really CARE.
Won't get fooled again . . . .
Fittingly, the letter wraps up with words dripping with insincerity: "Nevertheless, while it is true that no one, including us, wishes to over-regulate, similarly we cannot support under-protecting the American consumer, particularly our nation's children."
In other words, the Democrat Commissioners are daring Congress to loosen the nose around out necks and are prepared to blame them if anything goes wrong. This also provides cover for zealot Senators who will make sure you have a great opportunity to go bankrupt or remain under the thumb of their out-of-control agency. I don't think it's much of a stretch to say it looks like a conspiracy - Democrats against you.
It would be wrong to call this letter disillusioning. That happened a long time ago. It also conveys little new information. Anyone truly shocked by this letter by these authors has been asleep at the wheel for the last three years. This merely confirms or updates what we already knew. I don't have a solution to people like this running the show. I can't do anything about it. One of them, Thomas Moore, is now about six months past the end of his term. Maybe Congress forgot about him.
Pay attention today. The stakes are high and getting higher. The CPSC is working against you. We will need keep fighting to survive.
"The CPSIA set one of the most protective lead limits for children's products in the world. The public health community continues to hold its overwhelming consensus: There is no safe level of lead. We oppose any change in the law that would lead to an increase in the DOSES OF LEAD to which our children are exposed on a daily basis, particularly when the marketplace has for the most part already adjusted to lower lead levels and is well on its way to getting the lead out of children's products." [Emphasis added]
Hmmmm. Apparently we evil toymakers, sinister educational product makers, monstrous t-shirt and jeans producers, venal shoemakers, diabolic rhinestone merchants, demonic ATV purveyors, fiendish motocross enthusiasts, vile vending machine operators, corrupt jewelers, slimy resale shop owners, worthless book publishers, perverse pen companies, satanic carpet weavers - we all are just waiting for the CPSC to look the other way so we can "dose" children with lead.
This kind of asinine accusation normally would be something to deride and lampoon in this space, but in this case frankly, it's not at all funny. Here you have three CPSC Commissioners with a majority vote (including Chairman Inez Tenenbaum) going national with serious, maligning insults of our values and our integrity. They can hardly restrain themselves - they go further to assert that we have only "for the most part adjusted" to the new rules - you know, by firing people, cutting products, withdrawing from markets.
This is your "leadership" on the Commission. I want to vomit.
CPSC Commissioners are appointed by the President. I wonder if a better word is "planted".
The letters make clear where children have lead exposure risk. Lead in D.C. tap water, no, that's fine - what can anybody do about THAT? House paint, environmental sources - nah! No, the real problem is industry and its "dosing" through children's products. The last line of defense is the CPSIA. The three Dem Commissioners put it succinctly - change the law and poison children. Better to over-regulate than under-regulate because it's a zero-sum game, right?
As usual, the Dems don't mention that THEY CAN'T PRODUCE EVEN ONE INJURY VICTIM FROM LEAD-IN-SUBSTRATE IN CHILDREN'S PRODUCTS. There are more than 50 million children in this country in the regulated age group and no one can find a single injury victim - EVER. Nonetheless they apparently think it's perfectly fine to wag their fingers at us and accuse us of unspeakable acts.
Who'd say anything, anyhow? Won't get fooled again. . . .
I guess we have a hint here how these people might vote on the technological feasibility of 100 ppm. Giving them an extra year to lower the boom won't do anything to protect my employees or my customers - they are TELLING US that the die is cast. That's because you and I apparently want to "dose" children with lead the first chance we get! They reinforce the hyperbolic tone by standing pat on the age limits under the CPSIA - we NEED the 12 year old limit. Why? Because Mommy says so. Junk science to the rescue! We can't have kids eating their ATVs, can we?
Does anyone wonder why trust in this agency is destroyed beyond repair? Who in the business community would ever expect to get a fair shake from these consumer group front men? Government for all us? Hardly.
Defending themselves on a weak point, the Dems contend they are sympathetic to small business. Myself, I can't measure commitment by limp and syrupy words of consolation - I look at what they do, not what they say. These people have done precisely ZIPPO for small business after three years of begging, pleading, screaming. I am tired of hearing about how much they CARE about small business. [Guess who drafted the letter?] As a friend of mine used to say, it's bullpucky.
Here's a shocker: I actually agree with one thing these people say - that parents deserve safe products regardless of who makes them. Of course that makes sense (no one cares whether a tortfeasor is a big company or a small company) which is why I want sensible standards that apply equally to everyone. In this case, the government should stop telling us how to run our businesses. Make a reasonable set of standards based on a real and defined "substantial product hazard" standard and go from there. This is parent-friendly and quite workable for small business.
Of course, my suggestion would make these Democrats much less important and certainly less heroic. Their letter makes clear who "saved" America - the CPSIA, the Dems in Congress and the Dems on the Commission. They're the ones who really CARE.
Won't get fooled again . . . .
Fittingly, the letter wraps up with words dripping with insincerity: "Nevertheless, while it is true that no one, including us, wishes to over-regulate, similarly we cannot support under-protecting the American consumer, particularly our nation's children."
In other words, the Democrat Commissioners are daring Congress to loosen the nose around out necks and are prepared to blame them if anything goes wrong. This also provides cover for zealot Senators who will make sure you have a great opportunity to go bankrupt or remain under the thumb of their out-of-control agency. I don't think it's much of a stretch to say it looks like a conspiracy - Democrats against you.
It would be wrong to call this letter disillusioning. That happened a long time ago. It also conveys little new information. Anyone truly shocked by this letter by these authors has been asleep at the wheel for the last three years. This merely confirms or updates what we already knew. I don't have a solution to people like this running the show. I can't do anything about it. One of them, Thomas Moore, is now about six months past the end of his term. Maybe Congress forgot about him.
Pay attention today. The stakes are high and getting higher. The CPSC is working against you. We will need keep fighting to survive.
Wednesday, April 6, 2011
CPSIA - The Hill Publishes My Op-Ed on CPSIA Hearings
Enough already! It’s time to amend the lead law
By Richard Woldenberg
04/06/11 02:51 PM ET
After almost three years of bickering over the law regulating lead in children’s products, a comprehensive amendment is finally up for discussion in the House of Representatives. It’s about time.
In August 2008, the 110th Congress passed the Consumer Product Safety Improvement Act (CPSIA) in an overreaction to notorious lead-in-paint toy recalls. Claiming that weak regulation “caused” these violations of law (lead-in-paint has been illegal for decades), consumer groups coined a slogan to sum it up: “There is NO safe level of lead”. Stooping low to sow fear, they have even warned the CPSC about the perils of bicycle licking and playing brass instruments in the school band. Their lead slogan has been repeated endlessly to justify a stifling, over-reaching law which has accomplished little but damaged many fine companies, killed jobs and depressed markets. The CPSIA deems companies "guilty until proven innocent" by forcing them to test products over and over again at huge expense to prove compliance with the new lead standard.
The screams of law-abiding companies have been consistently ignored by CPSC as it has implemented ever-harsher regulations under the new law. The safety agency is even considering ratcheting down permissible lead from 300 ppm to the unimaginably low 100 ppm level. Economics be damned!
In contrast to the claims of CPSIA backers warning that the sky is falling, CPSC recall records list only four alleged lead injuries from 1999 to 2010 among the nation’s 50+ million young children. Advocates have never produced victim case histories to justify the draconian rules and simply wag their fingers at anyone daring to question their cherished law.
As directed by Congress, the CPSC has dutifully banned the sale of rhinestones to children, ended the era of youth model ATVs and forbidden the use of brass bushings in toy car wheel assemblies. Why? They might emit a single atom of lead! The supporters of the law justify these extreme actions on the grounds that lead is a poison but somehow overlook that kids are exposed to more lead every day from eating a snack, drinking water or playing outside in the fresh air. The descent into regulation purgatory is down a slippery slope.
Being governed by this law can give you fits. For example, to be able to continue to legally sell our geology kits to schools (featuring real rocks!), we must give this warning: “Caution: Federal law requires us to advise that the rocks in this educational product may contain lead and might be harmful if swallowed.” We don’t relish looking like idiots at the hand of the U.S. government.
We’re certainly not alone in feeling the pain. The law affects many safe products spanning the U.S. economy, like books, t-shirts and shoes, ATVs and dirt bikes, bicycles, donated or resale goods, musical instruments, pens and educational products. The number of companies touched by the CPSIA is in the many thousands.
The CPSIA was written in response to failings of big companies, but hammers small and medium-sized companies with particular vengeance. Our small business has already lost customers who now feel that selling toys is too confusing or too much of a “hassle”. Market shrinkage courtesy of the federal government is our new reality. The technical rules and ever-changing legal requirements are beyond the capability of all but the most highly-trained quality managers or lawyers to comprehend. For this reason, small businesses bear the greatest risk of liability under the law, despite being responsible for almost no injuries from lead in the last decade. The double whammy of massive new regulatory obligations and the prospect of devastating liability are driving small businesses out of the children’s market.
Our family business makes educational products, and we work tirelessly to ensure that our products are safe. We have tested our products for decades now. None of us could ever tolerate lead poisoning. Nevertheless, I believe that our company should not be crushed by our government over some consumer groups' phobias and junk science.
The 112th Congress should know better after years of hearings, comment letters, op-eds, pleading and even direct appeals from the five CPSC Commissioners. To quote The Who, "We won’t get fooled again." If Congress is serious about fixing our economy and creating jobs, it’s time to lift the yoke of the CPSIA and set the children’s product market free once again.
Richard Woldenberg is Chairman of Learning Resources, Inc.
By Richard Woldenberg
04/06/11 02:51 PM ET
After almost three years of bickering over the law regulating lead in children’s products, a comprehensive amendment is finally up for discussion in the House of Representatives. It’s about time.
In August 2008, the 110th Congress passed the Consumer Product Safety Improvement Act (CPSIA) in an overreaction to notorious lead-in-paint toy recalls. Claiming that weak regulation “caused” these violations of law (lead-in-paint has been illegal for decades), consumer groups coined a slogan to sum it up: “There is NO safe level of lead”. Stooping low to sow fear, they have even warned the CPSC about the perils of bicycle licking and playing brass instruments in the school band. Their lead slogan has been repeated endlessly to justify a stifling, over-reaching law which has accomplished little but damaged many fine companies, killed jobs and depressed markets. The CPSIA deems companies "guilty until proven innocent" by forcing them to test products over and over again at huge expense to prove compliance with the new lead standard.
The screams of law-abiding companies have been consistently ignored by CPSC as it has implemented ever-harsher regulations under the new law. The safety agency is even considering ratcheting down permissible lead from 300 ppm to the unimaginably low 100 ppm level. Economics be damned!
In contrast to the claims of CPSIA backers warning that the sky is falling, CPSC recall records list only four alleged lead injuries from 1999 to 2010 among the nation’s 50+ million young children. Advocates have never produced victim case histories to justify the draconian rules and simply wag their fingers at anyone daring to question their cherished law.
As directed by Congress, the CPSC has dutifully banned the sale of rhinestones to children, ended the era of youth model ATVs and forbidden the use of brass bushings in toy car wheel assemblies. Why? They might emit a single atom of lead! The supporters of the law justify these extreme actions on the grounds that lead is a poison but somehow overlook that kids are exposed to more lead every day from eating a snack, drinking water or playing outside in the fresh air. The descent into regulation purgatory is down a slippery slope.
Being governed by this law can give you fits. For example, to be able to continue to legally sell our geology kits to schools (featuring real rocks!), we must give this warning: “Caution: Federal law requires us to advise that the rocks in this educational product may contain lead and might be harmful if swallowed.” We don’t relish looking like idiots at the hand of the U.S. government.
We’re certainly not alone in feeling the pain. The law affects many safe products spanning the U.S. economy, like books, t-shirts and shoes, ATVs and dirt bikes, bicycles, donated or resale goods, musical instruments, pens and educational products. The number of companies touched by the CPSIA is in the many thousands.
The CPSIA was written in response to failings of big companies, but hammers small and medium-sized companies with particular vengeance. Our small business has already lost customers who now feel that selling toys is too confusing or too much of a “hassle”. Market shrinkage courtesy of the federal government is our new reality. The technical rules and ever-changing legal requirements are beyond the capability of all but the most highly-trained quality managers or lawyers to comprehend. For this reason, small businesses bear the greatest risk of liability under the law, despite being responsible for almost no injuries from lead in the last decade. The double whammy of massive new regulatory obligations and the prospect of devastating liability are driving small businesses out of the children’s market.
Our family business makes educational products, and we work tirelessly to ensure that our products are safe. We have tested our products for decades now. None of us could ever tolerate lead poisoning. Nevertheless, I believe that our company should not be crushed by our government over some consumer groups' phobias and junk science.
The 112th Congress should know better after years of hearings, comment letters, op-eds, pleading and even direct appeals from the five CPSC Commissioners. To quote The Who, "We won’t get fooled again." If Congress is serious about fixing our economy and creating jobs, it’s time to lift the yoke of the CPSIA and set the children’s product market free once again.
Richard Woldenberg is Chairman of Learning Resources, Inc.
Tuesday, April 5, 2011
CPSIA - What's Missing from the CPSIA Amendment?
I have summarized my comments on the pending CPSIA amendment in my two prior blogposts. In this post, I explain what's MISSING from the amendment:
a. Preemption: The United States needs ONE law on safety for children's products - not 51. The CPSIA amendment should include strong preemption language to stop rogue state laws and to streamline compliance costs for the entire industry. Industry wastes huge resources dealing with competing and inconsistent regulatory schemes across the country that add little to safety but disrupt commerce. It goes without saying that small businesses can't keep up with it (which is especially perplexing in California). Is it fair to burden small business with a hopeless compliance chore? Is it good public policy? I think Mattel has enough of an advantage already. . . .
This preemption should also apply to consumer "right to know" laws as they relate to lead and phthalates. In other words, the Illinois lead labelling law and California's Proposition 65 should be preempted explicitly by federal statute. These laws were developed to avoid federal preemption. Lawyers and mercenary consumer groups don't need the handout anymore - the right-to-know "tax" should be lifted from the marketplace.
b. Testing Frequency. The amendment addresses part of the mess surrounding the so-called "15 Month Rule" but does not touch the subject of testing frequency. The CPSC's budding efforts to regulate testing frequency (and sampling for testing) have the potential to wreak new havoc as the government pushes its way into decisions long made by private businesses. What's the justification for this intrusion? I guess Congress thinks they can run our businesses better than we can. Unfortunately, there's no evidence to suggest that they know better than we do, and furthermore, there is no data to suggest that the decisions made by manufacturers on testing frequency have ANYTHING to do with injuries. The pursuit of a perfect suite of paperwork is not the same as keeping kids safe.
The amendment should steer the CPSC away from meddling in the internal affairs of manufacturers and instead refocus it on substantial product hazards. That's why we have a CPSC, the only reason.
c. Penalties. When the CPSIA was originally passed, one of the provisions trumpeted by the agency was its fancy new right to impose huge penalties. And it didn't take long for the agency to try out its new rights. Unfortunately, as documented in this space, the penalties rarely reflected reason, just emotion. Penalties tended to vary by the level of anger at the CPSC, not the magnitude of the "crime" or any sense of proportionality. Chairman Inez Tenenbaum actually bragged publicly about effectively putting Japanese retailer Daiso out of business in the U.S. in her 2010 ICPHSO keynote speech. Daiso recalled a few thousand dollars of cheap toys (about one pallet's worth) in five recalls with no injuries reported byt eh CPSC. Not exactly a crime against humanity, in my view. Nevertheless, Daiso was hit with penalties in excess of $2 million. The Daiso fiasco looks very much like vindictiveness or headline-seeking.
The threat of such disproportionate punishment may look entirely theoretical . . . until it's your turn.
Call me a starry-eyed idealist, but I believe in due process and reasonable recourse to the courts. If the agency is going to go hog wild with penalties, Congress should impose reasonable restraints on the process. Unfettered government power is un-American. Procedural limits providing basic due process rights and restraining the coercive tactics of the agency would be an appropriate addition to the amendment. This problem is no secret - ICPHSO sponsored a presentation on this problem at the 2011 February meeting by three distinguished CPSC bar practitioners. If the agency can't control its animal instincts, then the law should be changed to limit its powers. I also recommend that penalties be limited to egregious conduct, reckless endangerment or conduct resulting in serious injury.
d. Restore Risk Assessment. The basic problem underlying the CPSIA, as is apparent again and again in my comments, is termination of the CPSC's obligation to assess risk. In fact, they are not allowed to assess risk anymore under the CPSIA, just follow the rules written by staffers in the 110th Congress. Of course, this renders the standard of substantial risk hazard moot. Even more problematic, the CPSC shows signs of losing sight of its mission. Is the mission proper testing . . . or safety? The recent hearings on pool drains illustrates this problem. The hearing was all about the definition of proper pool drain testing. The CPSC wasn't investigating actual injuries, because there weren't any, but instead questioning test results. That's what passes for safety administration nowadays.
We need a CPSC focused on risks and injuries. A phobic safety agency adds costs to our economy with little to show for the extra investment. We need to get our compass working again. Congress must mandate that the CPSC base all its decisions on the substantial product hazard standard and risk assessment.
e. Allow resellers to rely on representations of manufacturers, Fear of liability has caused many layers of the supply chain to repetitively test and retest the same product, all in the pursuit of the perfect suite of test reports. These costs are harming manufacturers and raising prices to consumers. Injury statistics do not support the thesis that anyone is safer, however. The solution is for Congress to set a legal standard that permits retailers to rely on the representations of their suppliers (manufacturers). This bright line rule should help end the atmosphere of distrust between retailers and their suppliers. Don't worry, there will still be plenty of testing to make everyone happy (including the always deserving testing labs).
f. End whistleblower provision. The whistleblower provision was added in the same fever of vindictiveness that infused the "throw in the kitchen sink" CPSIA in 2008. The problem is that there is no evidence that there were any "evil" companies at work in the children's market. Incompetent organizations or failed operators, perhaps, but criminals and bad guys, no. "Bad guys" are rare in the children's market, frankly. The whistleblower provision has the potential to be a disruptor, a manipulator mainly useful to pad the income of tort lawyers.
Additional attention by the CPSC to outreach and education of manufacturers is much more likely to produce results. Without evidence that true venality is an actual risk in this market, there is no justification for retaining the whistleblower provision.
g. Remove phthalates ban! There are no known victims of phthalates. The CPSC has been operating under this total ban for now almost three years - and has only ONE recall of 40 little inflatable toy baseball bats (our friend Daiso) to show for it. That's it, my friends. How much money, how many planeloads of dollar bills have been torched testing and retesting product for the presence of these chemicals in the meantime? The CPSC hasn't even bothered to finish up testing standards or certify even ONE lab to perform the tests. They don't appear to think this is a public health emergency.
Ket's end the charade. When Diane Feinstein isn't looking, drop the phthalates ban!
a. Preemption: The United States needs ONE law on safety for children's products - not 51. The CPSIA amendment should include strong preemption language to stop rogue state laws and to streamline compliance costs for the entire industry. Industry wastes huge resources dealing with competing and inconsistent regulatory schemes across the country that add little to safety but disrupt commerce. It goes without saying that small businesses can't keep up with it (which is especially perplexing in California). Is it fair to burden small business with a hopeless compliance chore? Is it good public policy? I think Mattel has enough of an advantage already. . . .
This preemption should also apply to consumer "right to know" laws as they relate to lead and phthalates. In other words, the Illinois lead labelling law and California's Proposition 65 should be preempted explicitly by federal statute. These laws were developed to avoid federal preemption. Lawyers and mercenary consumer groups don't need the handout anymore - the right-to-know "tax" should be lifted from the marketplace.
b. Testing Frequency. The amendment addresses part of the mess surrounding the so-called "15 Month Rule" but does not touch the subject of testing frequency. The CPSC's budding efforts to regulate testing frequency (and sampling for testing) have the potential to wreak new havoc as the government pushes its way into decisions long made by private businesses. What's the justification for this intrusion? I guess Congress thinks they can run our businesses better than we can. Unfortunately, there's no evidence to suggest that they know better than we do, and furthermore, there is no data to suggest that the decisions made by manufacturers on testing frequency have ANYTHING to do with injuries. The pursuit of a perfect suite of paperwork is not the same as keeping kids safe.
The amendment should steer the CPSC away from meddling in the internal affairs of manufacturers and instead refocus it on substantial product hazards. That's why we have a CPSC, the only reason.
c. Penalties. When the CPSIA was originally passed, one of the provisions trumpeted by the agency was its fancy new right to impose huge penalties. And it didn't take long for the agency to try out its new rights. Unfortunately, as documented in this space, the penalties rarely reflected reason, just emotion. Penalties tended to vary by the level of anger at the CPSC, not the magnitude of the "crime" or any sense of proportionality. Chairman Inez Tenenbaum actually bragged publicly about effectively putting Japanese retailer Daiso out of business in the U.S. in her 2010 ICPHSO keynote speech. Daiso recalled a few thousand dollars of cheap toys (about one pallet's worth) in five recalls with no injuries reported byt eh CPSC. Not exactly a crime against humanity, in my view. Nevertheless, Daiso was hit with penalties in excess of $2 million. The Daiso fiasco looks very much like vindictiveness or headline-seeking.
The threat of such disproportionate punishment may look entirely theoretical . . . until it's your turn.
Call me a starry-eyed idealist, but I believe in due process and reasonable recourse to the courts. If the agency is going to go hog wild with penalties, Congress should impose reasonable restraints on the process. Unfettered government power is un-American. Procedural limits providing basic due process rights and restraining the coercive tactics of the agency would be an appropriate addition to the amendment. This problem is no secret - ICPHSO sponsored a presentation on this problem at the 2011 February meeting by three distinguished CPSC bar practitioners. If the agency can't control its animal instincts, then the law should be changed to limit its powers. I also recommend that penalties be limited to egregious conduct, reckless endangerment or conduct resulting in serious injury.
d. Restore Risk Assessment. The basic problem underlying the CPSIA, as is apparent again and again in my comments, is termination of the CPSC's obligation to assess risk. In fact, they are not allowed to assess risk anymore under the CPSIA, just follow the rules written by staffers in the 110th Congress. Of course, this renders the standard of substantial risk hazard moot. Even more problematic, the CPSC shows signs of losing sight of its mission. Is the mission proper testing . . . or safety? The recent hearings on pool drains illustrates this problem. The hearing was all about the definition of proper pool drain testing. The CPSC wasn't investigating actual injuries, because there weren't any, but instead questioning test results. That's what passes for safety administration nowadays.
We need a CPSC focused on risks and injuries. A phobic safety agency adds costs to our economy with little to show for the extra investment. We need to get our compass working again. Congress must mandate that the CPSC base all its decisions on the substantial product hazard standard and risk assessment.
e. Allow resellers to rely on representations of manufacturers, Fear of liability has caused many layers of the supply chain to repetitively test and retest the same product, all in the pursuit of the perfect suite of test reports. These costs are harming manufacturers and raising prices to consumers. Injury statistics do not support the thesis that anyone is safer, however. The solution is for Congress to set a legal standard that permits retailers to rely on the representations of their suppliers (manufacturers). This bright line rule should help end the atmosphere of distrust between retailers and their suppliers. Don't worry, there will still be plenty of testing to make everyone happy (including the always deserving testing labs).
f. End whistleblower provision. The whistleblower provision was added in the same fever of vindictiveness that infused the "throw in the kitchen sink" CPSIA in 2008. The problem is that there is no evidence that there were any "evil" companies at work in the children's market. Incompetent organizations or failed operators, perhaps, but criminals and bad guys, no. "Bad guys" are rare in the children's market, frankly. The whistleblower provision has the potential to be a disruptor, a manipulator mainly useful to pad the income of tort lawyers.
Additional attention by the CPSC to outreach and education of manufacturers is much more likely to produce results. Without evidence that true venality is an actual risk in this market, there is no justification for retaining the whistleblower provision.
g. Remove phthalates ban! There are no known victims of phthalates. The CPSC has been operating under this total ban for now almost three years - and has only ONE recall of 40 little inflatable toy baseball bats (our friend Daiso) to show for it. That's it, my friends. How much money, how many planeloads of dollar bills have been torched testing and retesting product for the presence of these chemicals in the meantime? The CPSC hasn't even bothered to finish up testing standards or certify even ONE lab to perform the tests. They don't appear to think this is a public health emergency.
Ket's end the charade. When Diane Feinstein isn't looking, drop the phthalates ban!
Monday, April 4, 2011
CPSIA - Analysis of Pending House CPSIA Amendment (Sections 3-11)
Continuing with my analysis of the pending draft of the CPSIA Amendment:
Section 3 Application of Third Party Testing Requirements: Merry Christmas, this provision ends mandatory phthalate and lead-in-substrate testing! Yes, Virginia, you read that right - there is a Santa Claus after all. Of course, as noted in my earlier blogpost, you are still subject to broad standards applying to many of your products. How will you know if you comply without some testing? You won't. Hmmm - a Catch-22! The limitations in the definition of Children's Products echo here. Removing mandatory testing is not the whole solution, unfortunately.
You still must test for lead-in-paint, small parts, children's metal jewelry and certain juvenile products.
The provision does not remove the CPSC from the process of certifying labs. This needless expansion of the role of our government in this market has never had a sufficient justification, in my view. Why are they in this business? What problem does it solve? Can ANYONE provide evidence that the market wasn't "working" before the CPSC arrived on the lab certification scene? This CPSIA provision is probably a historic consumer group wish-list item or perhaps a staffer's stray term that was never removed. The CPSIA was drafted in a fever of "our government failed us", so it's only natural that the law inserted the CPSC into every nook and cranny of the market. In this case, their conscription has not proven valuable, just another wasteful expense of the federal government that we all will pay for (again and again and again).
Ironically, the provision seems to create even more involvement in certification by the agency, if it chooses to require third party testing. Among other things, the agency must assess testing "capacity". That should prove "interesting".
This section provides some exemption for crafters, products focused on disabled persons (this phrasing only awkwardly covers certain "special needs" children) and one-of-a-kind items. The definition of the exemption incorporates the unfortunate term "not economically practicable" for testing to be excused. I can only imagine the serious of hearings and "stakeholder" meetings required to define what is and is not covered by this new term. This anticipatory compromise (perhaps as a concession to as-yet-encountered resistance in the Senate) likely spoils the workings of this well-intended provision.
A small quantity exemption modeled on Henry Waxman's formula has survived into this draft, unfortunately. The rule incorporates an arbitrary and otherwise meaningless volume rule to identify those companies too small to be required to test. I have never understood why Congress would want to let small companies flaunt safety rules because of their size. Is it okay to be poisoned by a little company but not by a big one? Isn't this law about SAFETY first and foremost? Perhaps we would do better to home in on REAL problems and leave everything else basically unregulated? After all, the substantial product hazard standard gives the agency a LOT of power to change course if they identify a new and REAL problem at a later time.
Under this amendment, the amoeba that is the CPSIA spread in yet another new direction. Today's new priority is apparently small parts. Why? Not explained. Has someone concluded that the former reliance on voluntary standards for small parts failed? On what basis? Does a lab putting products through a choke tube really save lives over relying on voluntary compliance (without specifying the use of outside labs)? Perhaps the best solution is to hold companies responsible for compliance with ASTM F963 without requiring testing (thus preserving the agency's ability to enforce), and holding the line on lead-in-paint testing? After all, L-I-P is easily tested and probably should always be subject to testing owing to the nature of the hazard. I don't know that small companies deserve an "out" on L-I-P because of the ease of controlling sources of paint and getting documentation on lead content. On the other hand, I don't understand why small parts needs this special mention.
Perhaps the sweetest term in this entire document is the new requirement that the agency perform a cost-benefit analysis on ANY mandated third party testing and further, that the testing imposes the least possible burden. This is a pure post-midterm election "smaller government" provision and something to be cherished. This requirement will be applied retroactively on any mandatory testing passed after August 14, 2009. Nice!!!
Finally, this provision makes the "15 Month Rule" voluntary by the CPSC, rather than Congressionally-mandated. Does this mean that it's dead? I can't say for sure. Let's hope so. Better yet, why not change this provision to get the CPSC out of the business of telling us how to be reasonable? Reasonableness is a term that courts have successfully interpreted for years without Congress' help. Why not let the courts decide what's reasonable if there is a dispute?
Section 4 Application of and Process for Updating Durable Nursery Products Standards: I skipped this as it relates to cribs. Not my area.
Section 5 Application of Section 106 to FDA-Regulated Products: Pulls in FDA rules into mandatory toy safety standards enforceable by the CPSC. Does not apply to me, not sure which is you this will impact.
Section 6 Application of Phthalates Standard: This provision limits the application of the phthalates ban to only certain parts of a "toy" (as defined).
First, the rule makes ALL phthalates rules PROSPECTIVE from the date of enactment. For those of you sitting on old inventory with the vain hope that someday it will saleable, this might be your lucky day!
The rule also gives the agency the power to exempt products from the phthalates ban if deemed "not necessary to protect children's health". This can be done only by rule under the amendment, so don't expect anything quick or cheap. This will be a long, drawn-out and arduous process - in other words, it is highly unlikely to occur.
As noted above, the term "necessary to protect children's health" conflicts with (or at least differs from) the substantial product hazard standard already in use. This is wrong and should be changed. Congress should use ONE standard for all matters relating to health under the CPSA, namely substantial product hazard, and it should resist the urge to introduce new standards throughout this document. That will only confuse things and make matters worse.
The provision adds a firm deadline for the end of the ban of the three phthalates the subject of the CHAP, if the agency does not act promptly after the CHAP is concluded. This provision seems to express distrust between Congress and the current administration of the CPSC. Will safety zealots hijack the CHAP process? This provision aims to prevent it. Hmmm.
Subsection (e) fiddles with the definition of "toy" to align it with the definition in the now mandatory ASTM F963 standard. Not sure how this will affect you (or me). The ASTM standard includes many different age ranges (by item) so some may even expand. Many will contract.
Finally, the revised definition excludes parts that can only be "licked". Frankly, based on my recollection of the CPSC's serious approach to this in the past, I anticipate that they will assume children have serpent tongues making almost everything "lickable". Sadly, Congress probably can't rely on the CPSC to take a simple definition and let companies administer it. This provision is an invitation to make "rules". I would suggest that the amendment be modified to specifically permit companies to exercise their reasonable business judgment on what is "lickable". I would point out that in the absence of victims that people besides Diane Feinstein can identify, the need to treat the possible presence of phthalates in these items as a public health crisis is unsupported. The CPSC, on the other hand, WILL treat it as a crisis since Congress banned the substances in toys. That makes it quite serious for the agency. To restore sanity, Congress will either need to give very specific instructions to the CPSC, or mandate the use of risk assessment to resolve this matter.
Personally, I am tired of all this, and hope Congress can find a way to put this to bed. I don't relish another three years of hearings, comment letters, begging and the like. Let My People Go - build some easy rules, let us exercise judgment and re-focus the agency on substantial product hazards.
The rule does NOT limit the application of the ban to ONLY plasticized parts, meaning that testing costs to assure compliance may remain in place for wood, metal, labels and other sundry items. Believe it or not, that's where we are now. [The CPSC seems stuck on phthalates right now - no final rules have been promulgated on this simple ban and no labs have been certified since August 2008.] It is a complete waste of money, particularly since only Diane Feinstein knows of victims of this purported hazard. The rule should be revised to limit toy industry legal exposure for what is best characterized as a ban based on conjecture and fear, not actual science or identifiable injury victims.
Section 7 Exemption Authority for Tracking Labels Requirement: This provision gives the agency the ability (by regulation) to exclude specific products or classes of products from the tracking label requirement if the Commission determines that it is not "economically practicable" to apply tracking labels. Even for those products thrown a lifeline, they may still have to provide the information through alternative means devised by the CPSC.
I believe cynically that our very existence, the very fact that we are still breathing today, can be used to rebut the argument that tracking labels are not "economically practicable". A better rule would be to let us decide for ourselves whether we want to use tracking labels. Companies can be relied upon to decide on an economically rational basis. If it's a good use of money, we'll do it. Otherwise, we won't.
In the case of our company, in fact, that's what we used to do. Some of our items had tracking labels, most did not. Our motivation had nothing to do with recalls. That's because our recall record was so good that tracking labels never made sense as a "defensive" move. The few tracking labels we added were to assist us on quality issues (generally relating to the production of electronic items). We used product identifiers to improve our supply chain and raise our quality levels. Why not let businesses exercise judgment and live with the consequences? Make good decisions, innovate in value-added ways and profit, OR make bad decisions, cut corners and lose. Simple. This provision should be revised accordingly.
I have also suggested in the past that mandatory tracking labels be restricted to long-life, heirloom-style products, mainly juvenile products like cribs. These items have a checkered past, and are used with the most vulnerable children (babies). There is reason to believe tracking labels will have some value in this arena, and in addition, since these items are generally big ticket items, the cost of the labels is not material. As for everything else, forget it.
Section 8 Requirements for Public Database: The very encouraging changes proposed in this section would provide basic safety net protections to innocent companies possibly subject to unmerited attack in the database. I have not taken the time to compare these provisions to the Nord/Northup draft rule on the database, but believe they are consistent or at least Nord/Northup provided inspiration for these changes. The changes reduce the scope of people who can file a report, and gives companies more authority to resist publication of material inaccuracies.
The time frames for circulation of data needs to lengthened considerably. The prospect of "doom" flaunted by consumer groups needs to be downplayed. While the drama of pending disaster makes grist for the newspaper mill, it is unrealistic and has driven the database process in an abusive direction unnecessarily. Giving more time for back and forth means that the agency will have fewer occasions to knowingly publish false information. In addition, there is always the possibility that working together on a more relaxed schedule will allow the CPSC and businesses to work together better.
My interaction with the agency has reduced my confidence in getting a fair hearing on material inaccuracy. We presented information rebutting definitively an accusation made by a consumer, and we were told that we had not demonstrated "material inaccuracy". That seemed to fly in the face of the facts but we could not rebut what the filer "thought". I do not see anything in the new language that would prevent the agency from publishing that original filing. If good faith were the metric, I would worry about it. But today's CPSC is highly-politicized so I am not prepared to say I believe they will interpret clear language "clearly" or behave in a "reasonable" manner. I call on Congress and the CPSC to jointly figure out how to solve this trust problem. Should there be a way to appeal the judgment of the CPSC? It would have to be simple and cheap - something administrative and independent - to give companies a way to protect themselves if they feel they're not getting a fair shake. It may be worth the effort to restore faith in the database.
The database is a very expensive trifle. I question whether we can afford it. Think about how much time and resources will be devoted by the CPSC to the database. Is this really the best way to spend our money on safety? A "nice to have", perhaps, but probably not a "must have".
Misidentified products and reports proven materially inaccurate will not be allowed to be published under this amendment. Thank heavens . . . .
Section 9-11: Technical amendments as far as I can tell.
Section 3 Application of Third Party Testing Requirements: Merry Christmas, this provision ends mandatory phthalate and lead-in-substrate testing! Yes, Virginia, you read that right - there is a Santa Claus after all. Of course, as noted in my earlier blogpost, you are still subject to broad standards applying to many of your products. How will you know if you comply without some testing? You won't. Hmmm - a Catch-22! The limitations in the definition of Children's Products echo here. Removing mandatory testing is not the whole solution, unfortunately.
You still must test for lead-in-paint, small parts, children's metal jewelry and certain juvenile products.
The provision does not remove the CPSC from the process of certifying labs. This needless expansion of the role of our government in this market has never had a sufficient justification, in my view. Why are they in this business? What problem does it solve? Can ANYONE provide evidence that the market wasn't "working" before the CPSC arrived on the lab certification scene? This CPSIA provision is probably a historic consumer group wish-list item or perhaps a staffer's stray term that was never removed. The CPSIA was drafted in a fever of "our government failed us", so it's only natural that the law inserted the CPSC into every nook and cranny of the market. In this case, their conscription has not proven valuable, just another wasteful expense of the federal government that we all will pay for (again and again and again).
Ironically, the provision seems to create even more involvement in certification by the agency, if it chooses to require third party testing. Among other things, the agency must assess testing "capacity". That should prove "interesting".
This section provides some exemption for crafters, products focused on disabled persons (this phrasing only awkwardly covers certain "special needs" children) and one-of-a-kind items. The definition of the exemption incorporates the unfortunate term "not economically practicable" for testing to be excused. I can only imagine the serious of hearings and "stakeholder" meetings required to define what is and is not covered by this new term. This anticipatory compromise (perhaps as a concession to as-yet-encountered resistance in the Senate) likely spoils the workings of this well-intended provision.
A small quantity exemption modeled on Henry Waxman's formula has survived into this draft, unfortunately. The rule incorporates an arbitrary and otherwise meaningless volume rule to identify those companies too small to be required to test. I have never understood why Congress would want to let small companies flaunt safety rules because of their size. Is it okay to be poisoned by a little company but not by a big one? Isn't this law about SAFETY first and foremost? Perhaps we would do better to home in on REAL problems and leave everything else basically unregulated? After all, the substantial product hazard standard gives the agency a LOT of power to change course if they identify a new and REAL problem at a later time.
Under this amendment, the amoeba that is the CPSIA spread in yet another new direction. Today's new priority is apparently small parts. Why? Not explained. Has someone concluded that the former reliance on voluntary standards for small parts failed? On what basis? Does a lab putting products through a choke tube really save lives over relying on voluntary compliance (without specifying the use of outside labs)? Perhaps the best solution is to hold companies responsible for compliance with ASTM F963 without requiring testing (thus preserving the agency's ability to enforce), and holding the line on lead-in-paint testing? After all, L-I-P is easily tested and probably should always be subject to testing owing to the nature of the hazard. I don't know that small companies deserve an "out" on L-I-P because of the ease of controlling sources of paint and getting documentation on lead content. On the other hand, I don't understand why small parts needs this special mention.
Perhaps the sweetest term in this entire document is the new requirement that the agency perform a cost-benefit analysis on ANY mandated third party testing and further, that the testing imposes the least possible burden. This is a pure post-midterm election "smaller government" provision and something to be cherished. This requirement will be applied retroactively on any mandatory testing passed after August 14, 2009. Nice!!!
Finally, this provision makes the "15 Month Rule" voluntary by the CPSC, rather than Congressionally-mandated. Does this mean that it's dead? I can't say for sure. Let's hope so. Better yet, why not change this provision to get the CPSC out of the business of telling us how to be reasonable? Reasonableness is a term that courts have successfully interpreted for years without Congress' help. Why not let the courts decide what's reasonable if there is a dispute?
Section 4 Application of and Process for Updating Durable Nursery Products Standards: I skipped this as it relates to cribs. Not my area.
Section 5 Application of Section 106 to FDA-Regulated Products: Pulls in FDA rules into mandatory toy safety standards enforceable by the CPSC. Does not apply to me, not sure which is you this will impact.
Section 6 Application of Phthalates Standard: This provision limits the application of the phthalates ban to only certain parts of a "toy" (as defined).
First, the rule makes ALL phthalates rules PROSPECTIVE from the date of enactment. For those of you sitting on old inventory with the vain hope that someday it will saleable, this might be your lucky day!
The rule also gives the agency the power to exempt products from the phthalates ban if deemed "not necessary to protect children's health". This can be done only by rule under the amendment, so don't expect anything quick or cheap. This will be a long, drawn-out and arduous process - in other words, it is highly unlikely to occur.
As noted above, the term "necessary to protect children's health" conflicts with (or at least differs from) the substantial product hazard standard already in use. This is wrong and should be changed. Congress should use ONE standard for all matters relating to health under the CPSA, namely substantial product hazard, and it should resist the urge to introduce new standards throughout this document. That will only confuse things and make matters worse.
The provision adds a firm deadline for the end of the ban of the three phthalates the subject of the CHAP, if the agency does not act promptly after the CHAP is concluded. This provision seems to express distrust between Congress and the current administration of the CPSC. Will safety zealots hijack the CHAP process? This provision aims to prevent it. Hmmm.
Subsection (e) fiddles with the definition of "toy" to align it with the definition in the now mandatory ASTM F963 standard. Not sure how this will affect you (or me). The ASTM standard includes many different age ranges (by item) so some may even expand. Many will contract.
Finally, the revised definition excludes parts that can only be "licked". Frankly, based on my recollection of the CPSC's serious approach to this in the past, I anticipate that they will assume children have serpent tongues making almost everything "lickable". Sadly, Congress probably can't rely on the CPSC to take a simple definition and let companies administer it. This provision is an invitation to make "rules". I would suggest that the amendment be modified to specifically permit companies to exercise their reasonable business judgment on what is "lickable". I would point out that in the absence of victims that people besides Diane Feinstein can identify, the need to treat the possible presence of phthalates in these items as a public health crisis is unsupported. The CPSC, on the other hand, WILL treat it as a crisis since Congress banned the substances in toys. That makes it quite serious for the agency. To restore sanity, Congress will either need to give very specific instructions to the CPSC, or mandate the use of risk assessment to resolve this matter.
Personally, I am tired of all this, and hope Congress can find a way to put this to bed. I don't relish another three years of hearings, comment letters, begging and the like. Let My People Go - build some easy rules, let us exercise judgment and re-focus the agency on substantial product hazards.
The rule does NOT limit the application of the ban to ONLY plasticized parts, meaning that testing costs to assure compliance may remain in place for wood, metal, labels and other sundry items. Believe it or not, that's where we are now. [The CPSC seems stuck on phthalates right now - no final rules have been promulgated on this simple ban and no labs have been certified since August 2008.] It is a complete waste of money, particularly since only Diane Feinstein knows of victims of this purported hazard. The rule should be revised to limit toy industry legal exposure for what is best characterized as a ban based on conjecture and fear, not actual science or identifiable injury victims.
Section 7 Exemption Authority for Tracking Labels Requirement: This provision gives the agency the ability (by regulation) to exclude specific products or classes of products from the tracking label requirement if the Commission determines that it is not "economically practicable" to apply tracking labels. Even for those products thrown a lifeline, they may still have to provide the information through alternative means devised by the CPSC.
I believe cynically that our very existence, the very fact that we are still breathing today, can be used to rebut the argument that tracking labels are not "economically practicable". A better rule would be to let us decide for ourselves whether we want to use tracking labels. Companies can be relied upon to decide on an economically rational basis. If it's a good use of money, we'll do it. Otherwise, we won't.
In the case of our company, in fact, that's what we used to do. Some of our items had tracking labels, most did not. Our motivation had nothing to do with recalls. That's because our recall record was so good that tracking labels never made sense as a "defensive" move. The few tracking labels we added were to assist us on quality issues (generally relating to the production of electronic items). We used product identifiers to improve our supply chain and raise our quality levels. Why not let businesses exercise judgment and live with the consequences? Make good decisions, innovate in value-added ways and profit, OR make bad decisions, cut corners and lose. Simple. This provision should be revised accordingly.
I have also suggested in the past that mandatory tracking labels be restricted to long-life, heirloom-style products, mainly juvenile products like cribs. These items have a checkered past, and are used with the most vulnerable children (babies). There is reason to believe tracking labels will have some value in this arena, and in addition, since these items are generally big ticket items, the cost of the labels is not material. As for everything else, forget it.
Section 8 Requirements for Public Database: The very encouraging changes proposed in this section would provide basic safety net protections to innocent companies possibly subject to unmerited attack in the database. I have not taken the time to compare these provisions to the Nord/Northup draft rule on the database, but believe they are consistent or at least Nord/Northup provided inspiration for these changes. The changes reduce the scope of people who can file a report, and gives companies more authority to resist publication of material inaccuracies.
The time frames for circulation of data needs to lengthened considerably. The prospect of "doom" flaunted by consumer groups needs to be downplayed. While the drama of pending disaster makes grist for the newspaper mill, it is unrealistic and has driven the database process in an abusive direction unnecessarily. Giving more time for back and forth means that the agency will have fewer occasions to knowingly publish false information. In addition, there is always the possibility that working together on a more relaxed schedule will allow the CPSC and businesses to work together better.
My interaction with the agency has reduced my confidence in getting a fair hearing on material inaccuracy. We presented information rebutting definitively an accusation made by a consumer, and we were told that we had not demonstrated "material inaccuracy". That seemed to fly in the face of the facts but we could not rebut what the filer "thought". I do not see anything in the new language that would prevent the agency from publishing that original filing. If good faith were the metric, I would worry about it. But today's CPSC is highly-politicized so I am not prepared to say I believe they will interpret clear language "clearly" or behave in a "reasonable" manner. I call on Congress and the CPSC to jointly figure out how to solve this trust problem. Should there be a way to appeal the judgment of the CPSC? It would have to be simple and cheap - something administrative and independent - to give companies a way to protect themselves if they feel they're not getting a fair shake. It may be worth the effort to restore faith in the database.
The database is a very expensive trifle. I question whether we can afford it. Think about how much time and resources will be devoted by the CPSC to the database. Is this really the best way to spend our money on safety? A "nice to have", perhaps, but probably not a "must have".
Misidentified products and reports proven materially inaccurate will not be allowed to be published under this amendment. Thank heavens . . . .
Section 9-11: Technical amendments as far as I can tell.
CPSIA - Analysis of Pending House CPSIA Amendment (Sections 1 and 2)
[This is a long essay - I apologize. The subject is important.]
In anticipation of this week's hearing on the pending House CPSIA Amendment, I wanted to share my thoughts on the present draft.
But first, a little perspective:
The debate over the CPSIA amendment has propitious timing. Fate has provided us with a new vantage point on lead mania. In a sad parody of the junk science underlying the CPSIA, the EPA this week assured Americans that it's safe to feed mildly radioactive milk laced with bits of nuclear meltdown to infants. What?! In a March 30 press release (available on the EPA website), the EPA instructs us to keep it all in perspective:
"Results from a screening sample taken March 25 from Spokane, Wash. detected 0.8 pCi/L of iodine-131, which is more than 5,000 times lower than the Derived Intervention Level set by the U.S. Food and Drug Administration. These types of findings are to be expected in the coming days and are far below levels of public health concern, including for infants and children. Iodine-131 has a very short half-life of approximately eight days, and the level detected in milk and milk products is therefore expected to drop relatively quickly. 'Radiation is all around us in our daily lives, and these findings are a minuscule amount compared to what people experience every day. For example, a person would be exposed to low levels of radiation on a round trip cross country flight, watching television, and even from construction materials,' said Patricia Hansen, an FDA senior scientist." [Emphasis added]
The CPSIA, on the other hand, is built around the idea that there is "no safe level for lead". The CPSC has uniformly rejected exemption requests on the grounds that there is no proof that the products won't emit ANY lead - meaning one atom. The CPSC staff has already acknowledged that there are no materials on Earth that can be relied upon to not emit a single atom of lead. I would call that "limited" options. Then again, perhaps space exploration will save us from this law . . . .
So the EPA blesses feeding milk infused with Japanese nuclear material to babies, but even a single atom of lead is intolerable to Congress and the CPSC.
Call me crazy, but they BOTH can't be right. And it's obvious who knows what they're doing in this case - it's the EPA.
It's time to drop the rhetoric and rebuild the CPSIA to provide appropriate protection WHERE IT'S ACTUALLY NEEDED and strip everything else away. Period. The Emperor has no clothes.
Section 1 Definition of Children's Product: This open-ended section attempts to lay the groundwork for trimming the coverage of the CPSIA. Notice that the age limits are blank. This probably reflects internal divisions among the Republicans on how to set age limits or how to position this law for passage in the Senate and then into law.
Notably, an age limit of seven years of age passed the Senate back in 2008. That seems to be the default age that may get penciled in, simply because some people believe it may be easier to get that age limit through the Senate. I believe this is an untested hypothesis, unfortunately. The consumer groups are going to scream no matter what - they hate most of this amendment, and will make it tough on the lefties in the House and particularly in the Senate to support any rational trimming of these limits. Even seven years of age may find more than token resistance in the Senate. Of course, that does not mean we shouldn't push for the right age limits.
Were it up to me alone, I would probably pick a range defined as products SUITABLE FOR children five years of age or younger. Five years of age pretty much defines the outside limit of age inappropriate behavioral risks for normal children. Injury statistics and human factors analysis do not identify substantial risks above this age. [It provides a safe "margin of error", if one is actually needed.] I think the definition must eliminate the concept of manufacturer's "intent" because the state of mind of the maker has nothing to do with safety. The intrinsic attributes of the product are what defines risk. In addition, the fact that we must GUESS as to the state of mind of the manufacturer makes it an unworkable standard. An objective standard based on traditional notions of human factor analysis would work best.
Even more fundamentally, I question whether it is really the job of Congress to set these age limits. As we know, Congress has already made a big mess as the self-appointed substitute for the CPSC. Age limits for safety standards should be based on scientific inquiry, human factors analysis, risk assessment, and so on. It is presumptuous for anyone to conclude that Congress can do it better than the Ph.D.s at the CPSC. Of course, in this politicized environment, in which trust in the agency has been bruised beyond recognition, I am somewhat sympathetic to Republicans who feel more secure setting the rules in concrete. If, however, we want to get out of CPSIA hell, we need to restore order in the safety universe. The CPSC should be given responsibility for making these determinations on a MANDATED RISK ASSESSMENT BASIS.
I hate to go down the path of one sizes fits all age limits, myself. Is there ANY reason to set age ranges that apply equally to toys, books, t-shirts, dirt bikes and ATVs, CDs and DVDs and educational products? Of course not. Who should make this determination? The agency with the experience and the professional staff trained to make these judgments - the CPSC.
PLEASE NOTE - this is a critical part of this amendment. This section defines who is subject to this awful law and who is not. Don't misunderstand which provisions are driving this ship - this provisions controls your legal liability, your exposure to regulatory oversight, penalties, enforcement, government intrustion generally. Testing relief in this amendment MUST BE seen in the context of the limitations here.
With that thought in mind, I would remind my readers of the scarcity of evidence of lead injuries from children's products and of lead-in-substrate victims in general. I believe the entire basis of this law is a scam (or at a minimum, a hideous misunderstanding of the data) and CHALLENGE the zealots to PROVE a need for the suffocating regulation of lead-in-substrate in these products in these industries. If lead victims cannot be identified and their lead injuries explained, then there is no demonstrated need for the legislative hammer - no one will benefit (no one will be safer because they weren't in danger in the first place). The consumer groups and left wingers have had three years to trot out the victims. There are NONE. Shame on them for spreading fear. I say put up . . . or shut up.
Section 2 Application of Lead Limit:
Subsection (a) is a classic "kick the can down the road" compromise in which the 100 ppm lead standard will be implemented by the CPSC in four years, not three, pushing the prospective date of implementation out to August 2012. Not good enough, guys! The structure of this part of the law, requiring that the CPSC implement the new standard or a standard between 100 ppm and 300 ppm based on "technological feasibility" is a direct INSTRUCTION by Congress to the CPSC to reduce the standard. The CPSC arguably has no choice in the matter. [Now you know who to blame.]
You can see this issue discussed in gory detail in this snippet from my testimony on the 100 ppm in front of the CPSC Commission on February 16th. Commissioner Bob Adler asks me if I want him to BREAK THE LAW by not implementing the new standard. BREAK THE LAW, BOB!
This is no way to regulate, no way to govern a country! ALL references to the 100 ppm standard should be DROPPED from the law. As noted above, and in countless blogposts here, there are no identified lead victims from children's products - so how is lowering the lead standard at enormous cost and economic risk of benefit to ANYONE? The 112th Congress can do better than repeat the errors of the 110th Congress.
Should there be a need for a lower standard based on real risk, the agency has sufficient regulatory authority under the CPSA and FHSA to lower standards to protect children in a rulemaking process. Congress does not need to meddle further in this area.
Subsection (b) introduces a new and uncorrelated "standard" for risk under the CPSA: "presents an unreasonable risk to children’s health". This is bad draftsmanship. There is a standard already in use in the CPSA and the FHSA, namely "substantial product hazard". The amendment should MANDATE that this term ALONE should be the standard for all action by the agency.
Subsection (c) makes the application of the lead standards prospective. [In Section 6, the amendment makes the same change for phthalates.] This is mainly intended to head off market disruption and distrust over the new 100 ppm standard. Of course, in my formulation, this is unnecessary if the 100 ppm standard goes away. I would point out that the entire idea of this kind of downward ratcheting of standards implies that what was safe yesterday is no longer safe today, which is crazy.
Subsection (d) relates to a revised exemption process. The "any lead" standard would go away, in faver of some limited exceptions. Ironically, this provision expands the application of the small parts rules to products for older children like youth model ATVs. This seems like a big error to me (and a bad structure for the law). If it's foreseeable that a cap on an ATV spark plug could come off and go through a small parts cylinder, it loses its eligibility for the exception. Hmmm. This may require some further thought . . . .
There would no longer be an exemption process under the CPSIA. So if you are in, you are "in" and can't get out no matter what. The drafters seem to have settled on small parts as the way lead poisoning is "transmitted" or may be transmitted. I am not sure how this was determined, since there are no victim case histories to examine. The presumption is that mouthing is how poisoning occurs, but then again, how many poisoning victims (from children's productrs, not from lead-in-paint) can be found? Zero? If we have never seen a victim, how can we be so sure there is ANY mechanism for this dreaded outcome? Is chewing on ATVs, dirt bikes, the ink end of a pen, rocks, and so on, really such a big health risk that we must fight for years over it?
Hmmm.
The subsection also artciulates a new (presumably relaxed) standard for steel, copper and aluminum alloys. The new standard is still blank. I sure hope the definition of "steel, copper, and aluminum alloys" is crystal clear and I likewise hope that this covers the waterfront for metal used in all current products and future materials used in similar circumstances. I guess we'll find out in time . . . . It appears to me to be simply a better formulation of the originally defective legislative concept. But still defective. Remember, no victims . . . .
The drafters have introduced doubt about what's in and what's out. Is a grommet in or out? Says the new provision: you lose the exemption if "after any necessary assembly of the product and after the product has been subjected to reasonably foreseeable conditions of use and abuse, the part or any portion of the part becomes detached from the product and such part or portion of the part fits entirely within such cylinder." How are you supposed to figure this out with confidence? Your guess is as good as mine. This kind of rule does NOT work in the real world. Sorry. . . .
By the way, this provision seems to snag items incorporating metal balls. While you may or may not like those products, this provision probably will give them no relief whatsoever.
I am even more hostile to their so-called "de minimus" exception. "De minimus" ingestion of lead is okay under this rule (whatever that is - can't wait for the three year fight over "Congressional intent") BUT only if it does not fit into a small parts cylinder (same as the metals formulation). This is patently ridiculous and will give no relief to anyone. Why are the Republicans playing games here? There is no safe level for over-compromised legislation . . . .
This is the mechanism that the House is providing to "save" rhinestones, btw. To get rhinestones into the market, you will need a methodology to calculate the amount of lead a rhinestone emits and document it. You are a "merchant of death", so you must keep records of how much of this "lethal" substance you subject children to. Excessive regulation, perhaps??? As I have said, compromise is not always the way to build good legislation. The Republicans need to steel themselves to fix this law once and for all.
The concept of the "de minimus" exception may be off-base. It is worth noting that blood lead levels are CONCENTRATIONS (mass divided by volume). In other words, different levels of lead ingestion will be required for a baby and a big child to develop the same blood lead levels. The persistence of high blood lead levels also has a big impact on the likelihood of injury, so wouldn't daily lead ingestion rates be a better measure of the likelihood injury? The "de minimus" standard seems to miss the point entirely. I get the impression that this amendment was drafted entirely in the context of the (defective) CPSIA and thus carries froward some of its basic flaws and misconceptions. Square pegs are not good fits for round holes. It may not be possible to "fix" the CPSIA by layering more and more rules on top of the underlying law. Some things may be best left unregulated with a reliance on the substantial product hazard standard.
Perhaps John Dingell was onto something with the original conception of the CPSA in 1972.
Needless to say, this hyper-technical "de minimus" provision will not work for small business. None of us know how to make a "de minimus" assessment and besides, the requirement to document our methods is just an invitation for tort lawsuits. If we will be made to create evidence to be used against us, I would rather be in another business. The crafters, the small toy merchants, the t-shirt vendors, the book printers, will also howl over the need to engage in silly and pointless technical evaluations of nonexistent risks by calculating the amount of lead ingested from use of their products. This is just waste, waste, waste. Again, we should not compromise ourselves to hell in this amendment. If Congress is going to try fix the damn thing, then fix it right.
As noted above, the substantial product hazard /standard is sufficient to empower the CPSC to do everything it needs to do. The legislative structure is in place and tested over decades. Why not tell the CPSC to do its job, and stop telling us how to run our businesses?
Finally, subsection (d)(2) entirely excludes used products from the CPSIA other than children's metal jewelry and products actually known by the sellers to violate the lead standards. This relief is long overdue - I appreciate that the committee is prepared to do the right thing for this group of CPSIA victims.
Of course, this may beg the question. If Congress is able to dispense mercy on used products, what about all the other absurd victms like bicycles, rhinestones, ATVs and dirt bikes, books, rhinestones, pens, educational products, CDs and DVDs and so on? Why stop at used products? Why even START at used products? Of course, they deserve help but do they deserve it anymore than the rest of us? They are senseless victims of this law, of course - but stand in line! So why not keep the carving knife out and free some more corporate "unintended" victims? I think the problem here is political, not policy.
Ugh.
In anticipation of this week's hearing on the pending House CPSIA Amendment, I wanted to share my thoughts on the present draft.
But first, a little perspective:
The debate over the CPSIA amendment has propitious timing. Fate has provided us with a new vantage point on lead mania. In a sad parody of the junk science underlying the CPSIA, the EPA this week assured Americans that it's safe to feed mildly radioactive milk laced with bits of nuclear meltdown to infants. What?! In a March 30 press release (available on the EPA website), the EPA instructs us to keep it all in perspective:
"Results from a screening sample taken March 25 from Spokane, Wash. detected 0.8 pCi/L of iodine-131, which is more than 5,000 times lower than the Derived Intervention Level set by the U.S. Food and Drug Administration. These types of findings are to be expected in the coming days and are far below levels of public health concern, including for infants and children. Iodine-131 has a very short half-life of approximately eight days, and the level detected in milk and milk products is therefore expected to drop relatively quickly. 'Radiation is all around us in our daily lives, and these findings are a minuscule amount compared to what people experience every day. For example, a person would be exposed to low levels of radiation on a round trip cross country flight, watching television, and even from construction materials,' said Patricia Hansen, an FDA senior scientist." [Emphasis added]
The CPSIA, on the other hand, is built around the idea that there is "no safe level for lead". The CPSC has uniformly rejected exemption requests on the grounds that there is no proof that the products won't emit ANY lead - meaning one atom. The CPSC staff has already acknowledged that there are no materials on Earth that can be relied upon to not emit a single atom of lead. I would call that "limited" options. Then again, perhaps space exploration will save us from this law . . . .
So the EPA blesses feeding milk infused with Japanese nuclear material to babies, but even a single atom of lead is intolerable to Congress and the CPSC.
Call me crazy, but they BOTH can't be right. And it's obvious who knows what they're doing in this case - it's the EPA.
It's time to drop the rhetoric and rebuild the CPSIA to provide appropriate protection WHERE IT'S ACTUALLY NEEDED and strip everything else away. Period. The Emperor has no clothes.
Section 1 Definition of Children's Product: This open-ended section attempts to lay the groundwork for trimming the coverage of the CPSIA. Notice that the age limits are blank. This probably reflects internal divisions among the Republicans on how to set age limits or how to position this law for passage in the Senate and then into law.
Notably, an age limit of seven years of age passed the Senate back in 2008. That seems to be the default age that may get penciled in, simply because some people believe it may be easier to get that age limit through the Senate. I believe this is an untested hypothesis, unfortunately. The consumer groups are going to scream no matter what - they hate most of this amendment, and will make it tough on the lefties in the House and particularly in the Senate to support any rational trimming of these limits. Even seven years of age may find more than token resistance in the Senate. Of course, that does not mean we shouldn't push for the right age limits.
Were it up to me alone, I would probably pick a range defined as products SUITABLE FOR children five years of age or younger. Five years of age pretty much defines the outside limit of age inappropriate behavioral risks for normal children. Injury statistics and human factors analysis do not identify substantial risks above this age. [It provides a safe "margin of error", if one is actually needed.] I think the definition must eliminate the concept of manufacturer's "intent" because the state of mind of the maker has nothing to do with safety. The intrinsic attributes of the product are what defines risk. In addition, the fact that we must GUESS as to the state of mind of the manufacturer makes it an unworkable standard. An objective standard based on traditional notions of human factor analysis would work best.
Even more fundamentally, I question whether it is really the job of Congress to set these age limits. As we know, Congress has already made a big mess as the self-appointed substitute for the CPSC. Age limits for safety standards should be based on scientific inquiry, human factors analysis, risk assessment, and so on. It is presumptuous for anyone to conclude that Congress can do it better than the Ph.D.s at the CPSC. Of course, in this politicized environment, in which trust in the agency has been bruised beyond recognition, I am somewhat sympathetic to Republicans who feel more secure setting the rules in concrete. If, however, we want to get out of CPSIA hell, we need to restore order in the safety universe. The CPSC should be given responsibility for making these determinations on a MANDATED RISK ASSESSMENT BASIS.
I hate to go down the path of one sizes fits all age limits, myself. Is there ANY reason to set age ranges that apply equally to toys, books, t-shirts, dirt bikes and ATVs, CDs and DVDs and educational products? Of course not. Who should make this determination? The agency with the experience and the professional staff trained to make these judgments - the CPSC.
PLEASE NOTE - this is a critical part of this amendment. This section defines who is subject to this awful law and who is not. Don't misunderstand which provisions are driving this ship - this provisions controls your legal liability, your exposure to regulatory oversight, penalties, enforcement, government intrustion generally. Testing relief in this amendment MUST BE seen in the context of the limitations here.
With that thought in mind, I would remind my readers of the scarcity of evidence of lead injuries from children's products and of lead-in-substrate victims in general. I believe the entire basis of this law is a scam (or at a minimum, a hideous misunderstanding of the data) and CHALLENGE the zealots to PROVE a need for the suffocating regulation of lead-in-substrate in these products in these industries. If lead victims cannot be identified and their lead injuries explained, then there is no demonstrated need for the legislative hammer - no one will benefit (no one will be safer because they weren't in danger in the first place). The consumer groups and left wingers have had three years to trot out the victims. There are NONE. Shame on them for spreading fear. I say put up . . . or shut up.
Section 2 Application of Lead Limit:
Subsection (a) is a classic "kick the can down the road" compromise in which the 100 ppm lead standard will be implemented by the CPSC in four years, not three, pushing the prospective date of implementation out to August 2012. Not good enough, guys! The structure of this part of the law, requiring that the CPSC implement the new standard or a standard between 100 ppm and 300 ppm based on "technological feasibility" is a direct INSTRUCTION by Congress to the CPSC to reduce the standard. The CPSC arguably has no choice in the matter. [Now you know who to blame.]
You can see this issue discussed in gory detail in this snippet from my testimony on the 100 ppm in front of the CPSC Commission on February 16th. Commissioner Bob Adler asks me if I want him to BREAK THE LAW by not implementing the new standard. BREAK THE LAW, BOB!
This is no way to regulate, no way to govern a country! ALL references to the 100 ppm standard should be DROPPED from the law. As noted above, and in countless blogposts here, there are no identified lead victims from children's products - so how is lowering the lead standard at enormous cost and economic risk of benefit to ANYONE? The 112th Congress can do better than repeat the errors of the 110th Congress.
Should there be a need for a lower standard based on real risk, the agency has sufficient regulatory authority under the CPSA and FHSA to lower standards to protect children in a rulemaking process. Congress does not need to meddle further in this area.
Subsection (b) introduces a new and uncorrelated "standard" for risk under the CPSA: "presents an unreasonable risk to children’s health". This is bad draftsmanship. There is a standard already in use in the CPSA and the FHSA, namely "substantial product hazard". The amendment should MANDATE that this term ALONE should be the standard for all action by the agency.
Subsection (c) makes the application of the lead standards prospective. [In Section 6, the amendment makes the same change for phthalates.] This is mainly intended to head off market disruption and distrust over the new 100 ppm standard. Of course, in my formulation, this is unnecessary if the 100 ppm standard goes away. I would point out that the entire idea of this kind of downward ratcheting of standards implies that what was safe yesterday is no longer safe today, which is crazy.
Subsection (d) relates to a revised exemption process. The "any lead" standard would go away, in faver of some limited exceptions. Ironically, this provision expands the application of the small parts rules to products for older children like youth model ATVs. This seems like a big error to me (and a bad structure for the law). If it's foreseeable that a cap on an ATV spark plug could come off and go through a small parts cylinder, it loses its eligibility for the exception. Hmmm. This may require some further thought . . . .
There would no longer be an exemption process under the CPSIA. So if you are in, you are "in" and can't get out no matter what. The drafters seem to have settled on small parts as the way lead poisoning is "transmitted" or may be transmitted. I am not sure how this was determined, since there are no victim case histories to examine. The presumption is that mouthing is how poisoning occurs, but then again, how many poisoning victims (from children's productrs, not from lead-in-paint) can be found? Zero? If we have never seen a victim, how can we be so sure there is ANY mechanism for this dreaded outcome? Is chewing on ATVs, dirt bikes, the ink end of a pen, rocks, and so on, really such a big health risk that we must fight for years over it?
Hmmm.
The subsection also artciulates a new (presumably relaxed) standard for steel, copper and aluminum alloys. The new standard is still blank. I sure hope the definition of "steel, copper, and aluminum alloys" is crystal clear and I likewise hope that this covers the waterfront for metal used in all current products and future materials used in similar circumstances. I guess we'll find out in time . . . . It appears to me to be simply a better formulation of the originally defective legislative concept. But still defective. Remember, no victims . . . .
The drafters have introduced doubt about what's in and what's out. Is a grommet in or out? Says the new provision: you lose the exemption if "after any necessary assembly of the product and after the product has been subjected to reasonably foreseeable conditions of use and abuse, the part or any portion of the part becomes detached from the product and such part or portion of the part fits entirely within such cylinder." How are you supposed to figure this out with confidence? Your guess is as good as mine. This kind of rule does NOT work in the real world. Sorry. . . .
By the way, this provision seems to snag items incorporating metal balls. While you may or may not like those products, this provision probably will give them no relief whatsoever.
I am even more hostile to their so-called "de minimus" exception. "De minimus" ingestion of lead is okay under this rule (whatever that is - can't wait for the three year fight over "Congressional intent") BUT only if it does not fit into a small parts cylinder (same as the metals formulation). This is patently ridiculous and will give no relief to anyone. Why are the Republicans playing games here? There is no safe level for over-compromised legislation . . . .
This is the mechanism that the House is providing to "save" rhinestones, btw. To get rhinestones into the market, you will need a methodology to calculate the amount of lead a rhinestone emits and document it. You are a "merchant of death", so you must keep records of how much of this "lethal" substance you subject children to. Excessive regulation, perhaps??? As I have said, compromise is not always the way to build good legislation. The Republicans need to steel themselves to fix this law once and for all.
The concept of the "de minimus" exception may be off-base. It is worth noting that blood lead levels are CONCENTRATIONS (mass divided by volume). In other words, different levels of lead ingestion will be required for a baby and a big child to develop the same blood lead levels. The persistence of high blood lead levels also has a big impact on the likelihood of injury, so wouldn't daily lead ingestion rates be a better measure of the likelihood injury? The "de minimus" standard seems to miss the point entirely. I get the impression that this amendment was drafted entirely in the context of the (defective) CPSIA and thus carries froward some of its basic flaws and misconceptions. Square pegs are not good fits for round holes. It may not be possible to "fix" the CPSIA by layering more and more rules on top of the underlying law. Some things may be best left unregulated with a reliance on the substantial product hazard standard.
Perhaps John Dingell was onto something with the original conception of the CPSA in 1972.
Needless to say, this hyper-technical "de minimus" provision will not work for small business. None of us know how to make a "de minimus" assessment and besides, the requirement to document our methods is just an invitation for tort lawsuits. If we will be made to create evidence to be used against us, I would rather be in another business. The crafters, the small toy merchants, the t-shirt vendors, the book printers, will also howl over the need to engage in silly and pointless technical evaluations of nonexistent risks by calculating the amount of lead ingested from use of their products. This is just waste, waste, waste. Again, we should not compromise ourselves to hell in this amendment. If Congress is going to try fix the damn thing, then fix it right.
As noted above, the substantial product hazard /standard is sufficient to empower the CPSC to do everything it needs to do. The legislative structure is in place and tested over decades. Why not tell the CPSC to do its job, and stop telling us how to run our businesses?
Finally, subsection (d)(2) entirely excludes used products from the CPSIA other than children's metal jewelry and products actually known by the sellers to violate the lead standards. This relief is long overdue - I appreciate that the committee is prepared to do the right thing for this group of CPSIA victims.
Of course, this may beg the question. If Congress is able to dispense mercy on used products, what about all the other absurd victms like bicycles, rhinestones, ATVs and dirt bikes, books, rhinestones, pens, educational products, CDs and DVDs and so on? Why stop at used products? Why even START at used products? Of course, they deserve help but do they deserve it anymore than the rest of us? They are senseless victims of this law, of course - but stand in line! So why not keep the carving knife out and free some more corporate "unintended" victims? I think the problem here is political, not policy.
Ugh.
Monday, March 21, 2011
CPSIA - Response to Questions by Nancy Nord (100 ppm Hearing February 16th)
This is my Response for the Record to a supplemental question posed by Commissioner Nancy Nord to the CPSC's February 16th Hearing on the pending 100 ppm Lead Standards:
Response to Commissioner Nancy Nord's Request
for Comment in the Federal Register
1. You stated reduction from 300 ppm in substrate to 100 ppm in substrate removes the margin of error for low tech manufacturers. Would you elaborate on this with some of your own testing experience?
When we consider the impact of the lower standard, we first ask how we would manage a failure. As (presumably) rational business people, we want to allocate our capital to maximize our returns, and thus, risks to those returns must be weighed and addressed as appropriate. We have tried to understand our risks under the new lower lead standard – and the results are not encouraging. Once a failure (failed test) is discovered, it is often incurable. A failed test on a completed item including an integrated failed component (e.g., a zipper) likely means a total loss under the CPSIA. Failures of components already subject to valid passing component tests cannot be ruled out and in fact, are likely to occur. Our inability to solve this problem for even trivial violations introduces a new and significant risk of random (unpredictable and uncontrollable) losses to our business.
The agency’s stance on re-testing is not encouraging either. The draft rules on re-testing in the “15 Month Rule” are best described as unworkable. The doubt raised over the consequences of a failed test under pending rules only elevates our concern over how we might deal with a failed test. At present, there seems to be few options. For this reason alone, the proposed reduction of lead standards to 100 ppm is extremely threatening.
Given the dire consequences of a failed test, we must assess whether we can control our supply chains and raw materials/components to always comply with the new lower standard. In my testimony before the Commission, I noted that 98.3% of our passing test reports in a two-year period (2701 CPSIA test reports) were compliant with the new standard. Unfortunately the 1.7% in the range of 100-300 ppm scatters randomly across our many products and components. Thus, we don’t know how to predict which components are prone to risk of non-compliance and the consequences of finding them at the wrong time can be devastating. [It goes without saying that 2701 tests in a two-year period is a strong demonstration of both the devotion of resources and the huge expenditures required by the CPSIA to obtain passing tests reports – continual clean bills of health, over and over and over again.]
Our testing results reveal two troubling trends. First, we have found a material number of our items with one or more components that fall into the 100-300 ppm zone, sometimes just barely above 100 ppm. For a “miss” of as little as 5 ppm of lead entombed permanently in a substrate, an entire lot can be relegated to the garbage heap. Failed components might be as insignificant as a label or a lens cap. We also know from experience that retesting the same unit or units from the same lot may result in a passing test report but do not anticipate that we will be afforded this option to “comply”. In any event, retesting to obtain a clean passing test report does not change the product. If this law is truly about safety, I fail to see what is being accomplished by piling up the test reports to the profit of the test labs. The occurrence of failures under the new standard for a few ppm of lead will raise our costs significantly.
Second, we have encountered significant variability in our testing results. I have attached three test reports as examples of the variability problem. The first report (submitted with my comments on the 100 ppm standard) shows the test results on a single piece of string from a mesh bag holding dominoes. We cut the string into ten pieces and then tested each segment. The lead content results ranged from 239 – 275 ppm. A representative of the bicycle industry gave similar evidence (wide variability in multiple tests on different parts of a single component) at the 100 ppm hearing on February 16th. In the attached test report on tape measures, we found lead levels in coatings in the same tape measure lot ranging from 79-97 ppm, which is more than a 20% variability range. Finally, I have attached three test reports showing yellow plastic substrate from the same lot of educational products at 23, 88 and 139 ppm lead levels. Our success in obtaining passing test reports will apparently depend on LUCK when lead levels are near the 100 ppm concentration. We don’t have a solution to this problem. In our experience, this problem strikes randomly and often absurdly. We have found, for instance, lead levels between 100-300 ppm on zipper housings on the inside of a sewn bag. Lizard tongues might be able to reach it but fortunately, none of our customers are lizards.
None of this randomness or massive expense can be tied to safety – just to the enrichment of testing companies and lawyers. I am hopeful that the Commission will see that action is needed to stop the reduction of the lead standard to 100 ppm to help preserve the value our company brings to schools and families throughout the United States.
Response to Commissioner Nancy Nord's Request
for Comment in the Federal Register
1. You stated reduction from 300 ppm in substrate to 100 ppm in substrate removes the margin of error for low tech manufacturers. Would you elaborate on this with some of your own testing experience?
When we consider the impact of the lower standard, we first ask how we would manage a failure. As (presumably) rational business people, we want to allocate our capital to maximize our returns, and thus, risks to those returns must be weighed and addressed as appropriate. We have tried to understand our risks under the new lower lead standard – and the results are not encouraging. Once a failure (failed test) is discovered, it is often incurable. A failed test on a completed item including an integrated failed component (e.g., a zipper) likely means a total loss under the CPSIA. Failures of components already subject to valid passing component tests cannot be ruled out and in fact, are likely to occur. Our inability to solve this problem for even trivial violations introduces a new and significant risk of random (unpredictable and uncontrollable) losses to our business.
The agency’s stance on re-testing is not encouraging either. The draft rules on re-testing in the “15 Month Rule” are best described as unworkable. The doubt raised over the consequences of a failed test under pending rules only elevates our concern over how we might deal with a failed test. At present, there seems to be few options. For this reason alone, the proposed reduction of lead standards to 100 ppm is extremely threatening.
Given the dire consequences of a failed test, we must assess whether we can control our supply chains and raw materials/components to always comply with the new lower standard. In my testimony before the Commission, I noted that 98.3% of our passing test reports in a two-year period (2701 CPSIA test reports) were compliant with the new standard. Unfortunately the 1.7% in the range of 100-300 ppm scatters randomly across our many products and components. Thus, we don’t know how to predict which components are prone to risk of non-compliance and the consequences of finding them at the wrong time can be devastating. [It goes without saying that 2701 tests in a two-year period is a strong demonstration of both the devotion of resources and the huge expenditures required by the CPSIA to obtain passing tests reports – continual clean bills of health, over and over and over again.]
Our testing results reveal two troubling trends. First, we have found a material number of our items with one or more components that fall into the 100-300 ppm zone, sometimes just barely above 100 ppm. For a “miss” of as little as 5 ppm of lead entombed permanently in a substrate, an entire lot can be relegated to the garbage heap. Failed components might be as insignificant as a label or a lens cap. We also know from experience that retesting the same unit or units from the same lot may result in a passing test report but do not anticipate that we will be afforded this option to “comply”. In any event, retesting to obtain a clean passing test report does not change the product. If this law is truly about safety, I fail to see what is being accomplished by piling up the test reports to the profit of the test labs. The occurrence of failures under the new standard for a few ppm of lead will raise our costs significantly.
Second, we have encountered significant variability in our testing results. I have attached three test reports as examples of the variability problem. The first report (submitted with my comments on the 100 ppm standard) shows the test results on a single piece of string from a mesh bag holding dominoes. We cut the string into ten pieces and then tested each segment. The lead content results ranged from 239 – 275 ppm. A representative of the bicycle industry gave similar evidence (wide variability in multiple tests on different parts of a single component) at the 100 ppm hearing on February 16th. In the attached test report on tape measures, we found lead levels in coatings in the same tape measure lot ranging from 79-97 ppm, which is more than a 20% variability range. Finally, I have attached three test reports showing yellow plastic substrate from the same lot of educational products at 23, 88 and 139 ppm lead levels. Our success in obtaining passing test reports will apparently depend on LUCK when lead levels are near the 100 ppm concentration. We don’t have a solution to this problem. In our experience, this problem strikes randomly and often absurdly. We have found, for instance, lead levels between 100-300 ppm on zipper housings on the inside of a sewn bag. Lizard tongues might be able to reach it but fortunately, none of our customers are lizards.
None of this randomness or massive expense can be tied to safety – just to the enrichment of testing companies and lawyers. I am hopeful that the Commission will see that action is needed to stop the reduction of the lead standard to 100 ppm to help preserve the value our company brings to schools and families throughout the United States.
CPSIA - Answers to Supplemental House Questions (Hearing of Feb. 17th)
This is my Response for the Record to questions posed by Rep. Mike Pompeo after the February 17th hearing held by the Subcommittee on Commerce, Manufacturing and Trade:
February 17, 2011
Commerce, Manufacturing, and Trade Subcommittee:
“A Review of CPSIA and CPSC Resources"
Congressman Mike Pompeo
1. Did your company have to buy a copy of the F-963 standard? Why? How much did that cost?
Our company has purchased several copies of ASTM F963 over the years. According to the ASTM International website (http://www.astm.org/Standards/F963.htm), the current cost of F963 is $62, or $74 (redline version). [This means that the ASTM literally charges companies EXTRA to figure out what changed in this legally-mandated standard.] To my knowledge, this standard is only available from the ASTM. Ironically, even the CPSC is unable to provide access to this document (as acknowledged in this CPSC Powerpoint presentation http://www.cpsc.gov/BUSINFO/intl/toyweb2_en.pdf) which casts doubt on its ability to guide companies attempting to comply with the law. The lack of access and cost of access to this standard certainly makes compliance burdensome for small businesses.
The F963 standard has been updated regularly over the years, and we need to have access to the current version of the standard at all times. Until the CPSIA was enacted, the F963 standard was the tacit equivalent of a mandatory standard because the toy industry adopted it as a “voluntary” standard with the encouragement of the CPSC. At one time, voluntary standards were the preferred way the agency regulated many industries, including our industry. We have always used the F963 standard as a reference in product development and safety administration and frequently tested for compliance with the standard.
2. You’ve been dealing with all of the agency’s rules for the last few years. By my reckoning, an entrepreneur with, say, a good idea for a board game would have to pay to buy a copy of F-963 from ASTM (not a small price to pay for some small or start-up toymakers). Then, because the standard is literally dozens of pages long of densely spaced text, he’d have to hire a lawyer to tell which parts of the standard apply to his product. Then, he’d have to find a third-party test lab to test and certify a random sample of his actual production line for compliance with all of the F-963 requirements. And, if any product fails, you are basically back to the drawing board. And, of course, he’d have to do all this before ever selling a single toy. Do you think the next board game entrepreneur (e.g., Trivial Pursuit) might have a hard time getting off the ground under this regime? Has this agency effectively killed entrepreneurship in the toy market? Does a start-up company stand any chance of being able to navigate the CPSC’s new rules and regulations on its own?
The CPSIA has had the effective of creating new barriers of entry in the children’s product market, once one of America’s most entrepreneurial industries. The burdens are heavy in the toy industry but even worse in related industries like juvenile products. Large companies with steady cash flow enjoy considerable and valuable advantages over entrepreneurs who must put large sums of money at risk in their initial investment in compliance costs before receiving their first dollar of revenue. The effect of the CPSIA is one of picking winners and losers in affected markets. I question whether this is the appropriate role of the federal government in our markets.
We believe that these heavy costs will discourage investment in new products, by new entrants, by existing players and especially by small businesses. Recently, at the CPSC’s hearing on the looming 100 ppm lead standard, representatives of the bicycle industry noted that in the wake of the 300 ppm lead standard, many small bicycle manufacturers have already left the market and large companies cut their product lines considerably. I have long predicted a reduction in product diversity as a necessary consequence of the CPSIA. Other evidence of market contraction exists, as well. At this year’s ICPHSO, CPSC Acting Director of the Office of Compliance and Field Operations Robert (“Jay”) Howell noted the CPSC’s challenge in identifying a test lab that has or will agree to equip itself as a certified test lab for ATVs. Why? So many ATV manufacturers have stopped producing youth model ATVs under the effective ban by the CPSIA’s lead standards that testing labs can’t justify the capital investment to provide CPSIA compliance testing. Product diversity is declining all over the children’s product market.
Toymakers will experience the same depressing effect and yes, that means that the next Trivial Pursuit inventor may be washed out. We may never know because the absence of a new toy or novel game will be hard to detect in the ad-driven, promotional toy market. It is clear, however, that entrepreneurs are free to deploy their capital wherever they want – they are seeking returns on their capital - so the combination of high CPSIA compliance costs, high regulatory risk, high legal costs and a generally hostile regulatory environment seems unlikely to attract new entrants to the toy market. War stories will also discourage new entrants – the well-known experience of toymakers who have suffered under this regulatory regime.
As a practical matter, the rules and regulations put out by the CPSC to implement the CPSIA for toys are incomprehensible, not to mention incomplete. We are now 31 months into the CPSIA era, yet the CPSC has yet to promulgate a final phthalate standard or certify even one phthalates testing lab. EACH and EVERY toy must be “phthalate-free” but the CPSC has yet to tell us how to know it has achieved this goal. This means we are subject to the risk that they will invalidate all the work we have done since 2008. While this regulatory delay is simply outrageous, it is more likely proof of the defects in the CPSIA than a sign of failure by the CPSC. Even the largest companies have complained to the CPSC about the blizzard of rules and interpretations. One of great frustrations in attempting to comply with the new rules is that many CPSC legal interpretations have been given in private letters, orally in speeches or even in the form of voicemails. Access to such information may be critical but is obviously inaccessible to anyone not obsessively watching every minute of every video, reading every letter, attending every meeting or hearing and talking to every stakeholder in an attempt to master the breadth of this ever-morphing regulatory scheme.
3. Does the existence of a small business ombudsman at the agency solve the compliance problem?
The office of the Small Business Ombudsman serves a useful purpose as a friendly point of contact and possible advocate for small business within the agency. That said, there is no evidence that the office has power to make decisions, change policy or offer its own definitive interpretation of rules. For small businesses totally at a loss, the ombudsman is a good place to turn to for plain English answers to basic questions about rules. Notably, the office is not permitted to make decisions on behalf of the agency. The Ombudsman does not have the authority to make problems “go away”. For this reason, the ombudsman function appears to be the regulatory equivalent of a shoulder to cry on. The current ombudsman, Neil Cohen, has been a good friend to the small business community, but unfortunately, he doesn’t write the rules.
4. What problems do you anticipate occurring as a result of the public database?
We know that the public database will be administered on a post-it-and-forget-it basis. Based on our dealings with the agency, I believe that the agency will post all incidents unless a mistaken identity can be proven. As a consequence, we anticipate that the database will be allowed to be filled up with “incidents” that are conjectural, misleading or even proven WRONG. In the first and only filing against our company, an anonymous complaint accused one of our products of posing a small parts hazard. That accusation was based on an image viewed on a website – there is no indication that the filer had ever handled our product. Consequently, the filer had no reasonable basis for the small parts claim. As a matter of fact, we routinely test for small parts and have done so for years, and when we presented a valid CPSIA test report under F963 (and EN71, the European standard), we were told by the General Counsel of the CPSC that the claim would nevertheless be eligible to be published under current rules. Thus, we KNOW that the false and misleading filings will KNOWINGLY be published by the CPSC even if PROVEN false. We believe this flagrantly violates our basic right to due process and creates the potential for damaging “feeding frenzies” that can consume our products and brands.
Other claims may relate to “hazards” which affect a wide swath of products already well-known by regulators and industry. This presents many risks to industry and to brands. What will a consumer make of a "report of harm" relating to a general hazard and only one particular product? Is this a minor incident or a harbinger of a real risk? Should they stop using the product? Should they stop using the particular model or brand which is subject of the complaint? Given that many products may present the same hazard (for instance, that an electrical cord could pose a strangulation hazard), how does this information help consumers? Will consumers actually understand the issue and be able to put it into some sort of perspective? And when incidents accumulate, as they are likely to do, presumably the brands and models with the largest numbers in distribution will have more incidents even though, ironically, they may be better constructed and "safer" than the alternatives. Will consumers falsely conclude that the models with more incidents are less safe and turn to something that really is?
Responding to this type of complaint obviously creates a new and terrible dilemma for manufacturers. Should they expend resources to respond? Do they need to lay out "a brief" about the nature of the failure and why their product is named? Will people just view whatever they say as unreliable, self-serving information or will they really be able to internalize the data? As noted above, most people will not be able to put these incidents in any kind of perspective. The only thing we know for certain is that brands and companies will be the losers.
The public portrayal of the database belies the unverified nature of the filings. Notwithstanding the disclaimers made by the agency, even esteemed media outlets like The New York Times refer to the database as a “database of unsafe products”. Unsafe? That label presumes some kind of judgment or filter prior to filing, which even The New York Times must assume is being provided by the CPSC. Ironically, the CPSC is doing everything possible to avoid providing that service. The result may be disastrous for American manufacturers, importers, private labelers and retailers of children’s products. It will be yet another self-inflicted economic injury.
5. What can Congress do to return the agency to one that regulates on the basis of risk?
Congress should mandate that the CPSC use principles of risk assessment to make all decisions relating to regulation of children’s products. The legislatively-mandated use of judgment and proportionality will likely lead to better rulemaking and more regulatory common sense. It is the legislative banishing of the exercise of judgment that led to the devastation of the bicycle industry, the elimination of youth model ATVs from the market (even though those products owe their very existence to a concerted effort by the CPSC to protect children from injury on adult-sized ATVs), the banning of all products made of brass, the senseless and almost neurotic banning of rhinestones as embellishments on children’s clothing, shoes and jewelry, and so on. NONE of these changes in rules have been tied to even ONE avoided injury.
Congress should also mandate the use of principles of cost-benefit analysis by the agency in its rulemaking processes. Under the CPSIA, all considerations of economics have flown out the window with predictably disastrous results. We can operate our government better according to basic common sense notions of cost-benefit analysis.
February 17, 2011
Commerce, Manufacturing, and Trade Subcommittee:
“A Review of CPSIA and CPSC Resources"
Congressman Mike Pompeo
1. Did your company have to buy a copy of the F-963 standard? Why? How much did that cost?
Our company has purchased several copies of ASTM F963 over the years. According to the ASTM International website (http://www.astm.org/Standards/F963.htm), the current cost of F963 is $62, or $74 (redline version). [This means that the ASTM literally charges companies EXTRA to figure out what changed in this legally-mandated standard.] To my knowledge, this standard is only available from the ASTM. Ironically, even the CPSC is unable to provide access to this document (as acknowledged in this CPSC Powerpoint presentation http://www.cpsc.gov/BUSINFO/intl/toyweb2_en.pdf) which casts doubt on its ability to guide companies attempting to comply with the law. The lack of access and cost of access to this standard certainly makes compliance burdensome for small businesses.
The F963 standard has been updated regularly over the years, and we need to have access to the current version of the standard at all times. Until the CPSIA was enacted, the F963 standard was the tacit equivalent of a mandatory standard because the toy industry adopted it as a “voluntary” standard with the encouragement of the CPSC. At one time, voluntary standards were the preferred way the agency regulated many industries, including our industry. We have always used the F963 standard as a reference in product development and safety administration and frequently tested for compliance with the standard.
2. You’ve been dealing with all of the agency’s rules for the last few years. By my reckoning, an entrepreneur with, say, a good idea for a board game would have to pay to buy a copy of F-963 from ASTM (not a small price to pay for some small or start-up toymakers). Then, because the standard is literally dozens of pages long of densely spaced text, he’d have to hire a lawyer to tell which parts of the standard apply to his product. Then, he’d have to find a third-party test lab to test and certify a random sample of his actual production line for compliance with all of the F-963 requirements. And, if any product fails, you are basically back to the drawing board. And, of course, he’d have to do all this before ever selling a single toy. Do you think the next board game entrepreneur (e.g., Trivial Pursuit) might have a hard time getting off the ground under this regime? Has this agency effectively killed entrepreneurship in the toy market? Does a start-up company stand any chance of being able to navigate the CPSC’s new rules and regulations on its own?
The CPSIA has had the effective of creating new barriers of entry in the children’s product market, once one of America’s most entrepreneurial industries. The burdens are heavy in the toy industry but even worse in related industries like juvenile products. Large companies with steady cash flow enjoy considerable and valuable advantages over entrepreneurs who must put large sums of money at risk in their initial investment in compliance costs before receiving their first dollar of revenue. The effect of the CPSIA is one of picking winners and losers in affected markets. I question whether this is the appropriate role of the federal government in our markets.
We believe that these heavy costs will discourage investment in new products, by new entrants, by existing players and especially by small businesses. Recently, at the CPSC’s hearing on the looming 100 ppm lead standard, representatives of the bicycle industry noted that in the wake of the 300 ppm lead standard, many small bicycle manufacturers have already left the market and large companies cut their product lines considerably. I have long predicted a reduction in product diversity as a necessary consequence of the CPSIA. Other evidence of market contraction exists, as well. At this year’s ICPHSO, CPSC Acting Director of the Office of Compliance and Field Operations Robert (“Jay”) Howell noted the CPSC’s challenge in identifying a test lab that has or will agree to equip itself as a certified test lab for ATVs. Why? So many ATV manufacturers have stopped producing youth model ATVs under the effective ban by the CPSIA’s lead standards that testing labs can’t justify the capital investment to provide CPSIA compliance testing. Product diversity is declining all over the children’s product market.
Toymakers will experience the same depressing effect and yes, that means that the next Trivial Pursuit inventor may be washed out. We may never know because the absence of a new toy or novel game will be hard to detect in the ad-driven, promotional toy market. It is clear, however, that entrepreneurs are free to deploy their capital wherever they want – they are seeking returns on their capital - so the combination of high CPSIA compliance costs, high regulatory risk, high legal costs and a generally hostile regulatory environment seems unlikely to attract new entrants to the toy market. War stories will also discourage new entrants – the well-known experience of toymakers who have suffered under this regulatory regime.
As a practical matter, the rules and regulations put out by the CPSC to implement the CPSIA for toys are incomprehensible, not to mention incomplete. We are now 31 months into the CPSIA era, yet the CPSC has yet to promulgate a final phthalate standard or certify even one phthalates testing lab. EACH and EVERY toy must be “phthalate-free” but the CPSC has yet to tell us how to know it has achieved this goal. This means we are subject to the risk that they will invalidate all the work we have done since 2008. While this regulatory delay is simply outrageous, it is more likely proof of the defects in the CPSIA than a sign of failure by the CPSC. Even the largest companies have complained to the CPSC about the blizzard of rules and interpretations. One of great frustrations in attempting to comply with the new rules is that many CPSC legal interpretations have been given in private letters, orally in speeches or even in the form of voicemails. Access to such information may be critical but is obviously inaccessible to anyone not obsessively watching every minute of every video, reading every letter, attending every meeting or hearing and talking to every stakeholder in an attempt to master the breadth of this ever-morphing regulatory scheme.
3. Does the existence of a small business ombudsman at the agency solve the compliance problem?
The office of the Small Business Ombudsman serves a useful purpose as a friendly point of contact and possible advocate for small business within the agency. That said, there is no evidence that the office has power to make decisions, change policy or offer its own definitive interpretation of rules. For small businesses totally at a loss, the ombudsman is a good place to turn to for plain English answers to basic questions about rules. Notably, the office is not permitted to make decisions on behalf of the agency. The Ombudsman does not have the authority to make problems “go away”. For this reason, the ombudsman function appears to be the regulatory equivalent of a shoulder to cry on. The current ombudsman, Neil Cohen, has been a good friend to the small business community, but unfortunately, he doesn’t write the rules.
4. What problems do you anticipate occurring as a result of the public database?
We know that the public database will be administered on a post-it-and-forget-it basis. Based on our dealings with the agency, I believe that the agency will post all incidents unless a mistaken identity can be proven. As a consequence, we anticipate that the database will be allowed to be filled up with “incidents” that are conjectural, misleading or even proven WRONG. In the first and only filing against our company, an anonymous complaint accused one of our products of posing a small parts hazard. That accusation was based on an image viewed on a website – there is no indication that the filer had ever handled our product. Consequently, the filer had no reasonable basis for the small parts claim. As a matter of fact, we routinely test for small parts and have done so for years, and when we presented a valid CPSIA test report under F963 (and EN71, the European standard), we were told by the General Counsel of the CPSC that the claim would nevertheless be eligible to be published under current rules. Thus, we KNOW that the false and misleading filings will KNOWINGLY be published by the CPSC even if PROVEN false. We believe this flagrantly violates our basic right to due process and creates the potential for damaging “feeding frenzies” that can consume our products and brands.
Other claims may relate to “hazards” which affect a wide swath of products already well-known by regulators and industry. This presents many risks to industry and to brands. What will a consumer make of a "report of harm" relating to a general hazard and only one particular product? Is this a minor incident or a harbinger of a real risk? Should they stop using the product? Should they stop using the particular model or brand which is subject of the complaint? Given that many products may present the same hazard (for instance, that an electrical cord could pose a strangulation hazard), how does this information help consumers? Will consumers actually understand the issue and be able to put it into some sort of perspective? And when incidents accumulate, as they are likely to do, presumably the brands and models with the largest numbers in distribution will have more incidents even though, ironically, they may be better constructed and "safer" than the alternatives. Will consumers falsely conclude that the models with more incidents are less safe and turn to something that really is?
Responding to this type of complaint obviously creates a new and terrible dilemma for manufacturers. Should they expend resources to respond? Do they need to lay out "a brief" about the nature of the failure and why their product is named? Will people just view whatever they say as unreliable, self-serving information or will they really be able to internalize the data? As noted above, most people will not be able to put these incidents in any kind of perspective. The only thing we know for certain is that brands and companies will be the losers.
The public portrayal of the database belies the unverified nature of the filings. Notwithstanding the disclaimers made by the agency, even esteemed media outlets like The New York Times refer to the database as a “database of unsafe products”. Unsafe? That label presumes some kind of judgment or filter prior to filing, which even The New York Times must assume is being provided by the CPSC. Ironically, the CPSC is doing everything possible to avoid providing that service. The result may be disastrous for American manufacturers, importers, private labelers and retailers of children’s products. It will be yet another self-inflicted economic injury.
5. What can Congress do to return the agency to one that regulates on the basis of risk?
Congress should mandate that the CPSC use principles of risk assessment to make all decisions relating to regulation of children’s products. The legislatively-mandated use of judgment and proportionality will likely lead to better rulemaking and more regulatory common sense. It is the legislative banishing of the exercise of judgment that led to the devastation of the bicycle industry, the elimination of youth model ATVs from the market (even though those products owe their very existence to a concerted effort by the CPSC to protect children from injury on adult-sized ATVs), the banning of all products made of brass, the senseless and almost neurotic banning of rhinestones as embellishments on children’s clothing, shoes and jewelry, and so on. NONE of these changes in rules have been tied to even ONE avoided injury.
Congress should also mandate the use of principles of cost-benefit analysis by the agency in its rulemaking processes. Under the CPSIA, all considerations of economics have flown out the window with predictably disastrous results. We can operate our government better according to basic common sense notions of cost-benefit analysis.
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