A friend of mine sent me the following interpretation of the CPSIA, a little tongue-in-cheek. I have telling people for weeks now - you can pick your conspiracy theory to explain the CPSIA and the current goings-on in Washington. Consider my friend's POV an option for you Conspiracy Theorists. And for the rest of you, please enjoy the irony.
Rick
________________
As a retailer shouldn’t I now be saying to the child caring public at large that according to Congress, who of course knows everything there is to know, that all the toys, bikes, books etc. in everyone’s home are now unsafe, in fact they may kill your child, therefore:
“Throw it away” and “Don’t wait – do it now! – don’t leave your child at risk!!” So now you have an empty house and you need to buy everything all over again.
“Don’t let your child grow up to be ignorant – buy a book, after all you haven’t got many any more!”
“Is your child bored – buy him/her a toy today, after all you haven’t got any any more!”
“Is your child getting enough exercise – buy a bike, after all you haven’t got one any more”
and so on and so on…….!
In one fell swoop we have resolved the recession, helped all the big makers of these items whose taxable profits from this will help Obama give even more money to the banks and will have given our waste disposal workers and landfill operators enough work to last for years which means they will have to recruit thereby solving any unemployment problems!
“All power to the CPSIA”
Sunday, April 5, 2009
Saturday, April 4, 2009
CPSIA - A Warlord Announces Himself
Our country's Federal system of law is based on a concept of legal hierarchy. Under the Supremacy Clause in Article VI of the Constitution, Federal law reigns supreme over State and local laws. Arguably, this provision was essential to the forging of a single nation from 13 Colonies by the Founding Fathers. Supremacy of Federal Law enables our Federal government to impose rules that benefit us as a nation over the parochial interests of States that might be contrary to the common weal. We depend on this system.
Unfortunately, the CPSIA by design degrades the supremacy of Federal law by giving wide latitude to State Attorneys General (SAGs) to independently enforce the law as they see fit. States also have the right to create their own safety laws with few restrictions because of weak preemption. Congress did this by plan. Notably, to do otherwise would have caused conflict with California's cherished Proposition 65 Consumer "Right to Know" law. As business people and as consumers, should we really care about this legal "technicality"? To answer this question, let’s look at the alternative.
Not every country has the benefit of a well-organized federal system. Some balkanized countries suffer from independent and uncooperative internal territories. This was the case in Europe before the European Union, as each country had its own rules and regulations, enforcement policies and courts. Trade is often a casualty of balkanization as internal boundaries or borders become points of resistance – or taxation. These internal divisions may not even be legal in nature, but rather tribal or power-based. This is the situation in Iraq.
The Americans got a rude surprise when the reality of the Iraq invasion set in: Iraq was not like home. What they believed could become a homogeneous nation was in fact a fractured, tribal land ruled by competing warlords. To move from place to place safely, Coalition forces had to negotiate and cultivate, territory by territory, appealing to each local leader (warlord) for support and cooperation. There was no way to implement rules centrally – they had to be negotiated neighborhood by neighborhood. This was and remains an uphill battle. Interestingly, similar problems bedevil the Americans in Afghanistan.
The CPSIA empowers SAGs to become modern American Warlords. These often ambitious local elected officials have no obligation to abide by CPSC policy, legal opinions or even Commission decisions, nor do they have any obligation to even inform the CPSC of their enforcement activities (until they file suit). Thus, as created by Congress under the terms of the CPSIA, there are now essentially 51 schemes of laws and 51 safety warlords governing the children's products marketplace. This remarkable "improvement" in the law is said to be sacrosanct to our Congressional leaders (read, Democrats) and not up for discussion. This is very worrisome to me – I think I do care about this. Are the SAGs going to behave consistently with national policy, only stepping in when the CPSC is not following its own rules – or will they do as they please, damn the consequences? Might the SAGs even make up their own law? Will the States behave themselves and play for the common good?
For answers, let us look westward. On March 25, California Attorney General Edmund Brown wrote a letter to the CPSC responding to its call for comments on the new phthalates test method and the draft approach for determining which products are subject to Section 108 phthalate ban.. See http://www.learningresources.com/text/pdf/CalAGPhthalateLetter25Mar09.pdf. Never mind that the CPSC has issued its interpretation of the CPSIA on phthalate testing and the phthalate bans, Warlord Brown will be doing things differently in his tribal region, California. In this remarkable letter, Warlord Brown announces that notwithstanding whatever test procedure the CPSC might settle on, the tribal region of California intends to enforce its phthalates ban component by component. Take that, Federal system! In a friendly gesture, Warlord Brown encourages the CPSC to see things his way. He also notes strongly that phthalates concentrations of 0.1% should be considered an overall limit, not phthalate by phthalate, which implies another serious division in enforcement policy. I am sure California businesses are rejoicing over Warlord Brown’s enlightened stance.
[Interestingly, one of Warlord Brown's arguments is that the CPSIA is modeled on the California ban, and thus, the interpretation of the law must follow California’s (namely, his). As a resident of Illinois, I am somewhat less sympathetic to this view. I did not have a chance to vote for or against this elected official and used to think that Federal policy was allowed to vary from that of California.]
The implications of the Brown letter are shattering. This letter is tantamount to a declaration of the supremacy of California law over Federal law. All hail Sacramento, our new national Capitol! The failure of Congress to create a simple, clear, prophylactic preemption rule, and to drive SAGs out of the children's products safety law enforcement business, will have a severe depressing effect on commerce. Of course, the CA power broker gang of Pelosi, Waxman, Boxer and Feinstein is not likely to permit any restrictions to be placed on their home state SAG. The reality is that the vast majority of companies cannot manage different legislative schemes governing their products. Most U.S. companies do not employ lawyers on their staff and even if they did, could not afford to monitor, much less accommodate, the shifting sands of 50 States' rules and enforcement policies. Presumably then, businesses will either learn to live with trade-inhibiting local rules with all the risk that goes along with it, or just give in to the most aggressive Warlords. Of course, were the latter to occur, a competition between Warlords would result, to determine which one is the toughest hombre on the range. Many companies would leave the marketplace were that to occur. I think you can count on this Democratic- controlled Congress to sit idly by and watch the spectacle with delight.
This is but one of many terrifying aspects of the CPSIA. It is not the one on people’s minds today because it is not generating expense . . . yet. This kind of risk will hit someone, sometime. So far, California has announced a broad settlement with toy companies over violations of local lead laws (http://ag.ca.gov/newsalerts/print_release.php?id=1636), and 39 SAGs feasted on Mattel for $12 million in another action (https://mail.learningresources.com/exchweb/bin/redir.asp?URL=https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://www.azag.gov/press_releases/dec/2008/Mattel%252520CJ.pdf ). When this moves downstream, the children's markets we depend on, that you depend on, will shrivel before your eyes. You heard it here first. It’s time to Amend the CPSIA before it's too late.
Unfortunately, the CPSIA by design degrades the supremacy of Federal law by giving wide latitude to State Attorneys General (SAGs) to independently enforce the law as they see fit. States also have the right to create their own safety laws with few restrictions because of weak preemption. Congress did this by plan. Notably, to do otherwise would have caused conflict with California's cherished Proposition 65 Consumer "Right to Know" law. As business people and as consumers, should we really care about this legal "technicality"? To answer this question, let’s look at the alternative.
Not every country has the benefit of a well-organized federal system. Some balkanized countries suffer from independent and uncooperative internal territories. This was the case in Europe before the European Union, as each country had its own rules and regulations, enforcement policies and courts. Trade is often a casualty of balkanization as internal boundaries or borders become points of resistance – or taxation. These internal divisions may not even be legal in nature, but rather tribal or power-based. This is the situation in Iraq.
The Americans got a rude surprise when the reality of the Iraq invasion set in: Iraq was not like home. What they believed could become a homogeneous nation was in fact a fractured, tribal land ruled by competing warlords. To move from place to place safely, Coalition forces had to negotiate and cultivate, territory by territory, appealing to each local leader (warlord) for support and cooperation. There was no way to implement rules centrally – they had to be negotiated neighborhood by neighborhood. This was and remains an uphill battle. Interestingly, similar problems bedevil the Americans in Afghanistan.
The CPSIA empowers SAGs to become modern American Warlords. These often ambitious local elected officials have no obligation to abide by CPSC policy, legal opinions or even Commission decisions, nor do they have any obligation to even inform the CPSC of their enforcement activities (until they file suit). Thus, as created by Congress under the terms of the CPSIA, there are now essentially 51 schemes of laws and 51 safety warlords governing the children's products marketplace. This remarkable "improvement" in the law is said to be sacrosanct to our Congressional leaders (read, Democrats) and not up for discussion. This is very worrisome to me – I think I do care about this. Are the SAGs going to behave consistently with national policy, only stepping in when the CPSC is not following its own rules – or will they do as they please, damn the consequences? Might the SAGs even make up their own law? Will the States behave themselves and play for the common good?
For answers, let us look westward. On March 25, California Attorney General Edmund Brown wrote a letter to the CPSC responding to its call for comments on the new phthalates test method and the draft approach for determining which products are subject to Section 108 phthalate ban.. See http://www.learningresources.com/text/pdf/CalAGPhthalateLetter25Mar09.pdf. Never mind that the CPSC has issued its interpretation of the CPSIA on phthalate testing and the phthalate bans, Warlord Brown will be doing things differently in his tribal region, California. In this remarkable letter, Warlord Brown announces that notwithstanding whatever test procedure the CPSC might settle on, the tribal region of California intends to enforce its phthalates ban component by component. Take that, Federal system! In a friendly gesture, Warlord Brown encourages the CPSC to see things his way. He also notes strongly that phthalates concentrations of 0.1% should be considered an overall limit, not phthalate by phthalate, which implies another serious division in enforcement policy. I am sure California businesses are rejoicing over Warlord Brown’s enlightened stance.
[Interestingly, one of Warlord Brown's arguments is that the CPSIA is modeled on the California ban, and thus, the interpretation of the law must follow California’s (namely, his). As a resident of Illinois, I am somewhat less sympathetic to this view. I did not have a chance to vote for or against this elected official and used to think that Federal policy was allowed to vary from that of California.]
The implications of the Brown letter are shattering. This letter is tantamount to a declaration of the supremacy of California law over Federal law. All hail Sacramento, our new national Capitol! The failure of Congress to create a simple, clear, prophylactic preemption rule, and to drive SAGs out of the children's products safety law enforcement business, will have a severe depressing effect on commerce. Of course, the CA power broker gang of Pelosi, Waxman, Boxer and Feinstein is not likely to permit any restrictions to be placed on their home state SAG. The reality is that the vast majority of companies cannot manage different legislative schemes governing their products. Most U.S. companies do not employ lawyers on their staff and even if they did, could not afford to monitor, much less accommodate, the shifting sands of 50 States' rules and enforcement policies. Presumably then, businesses will either learn to live with trade-inhibiting local rules with all the risk that goes along with it, or just give in to the most aggressive Warlords. Of course, were the latter to occur, a competition between Warlords would result, to determine which one is the toughest hombre on the range. Many companies would leave the marketplace were that to occur. I think you can count on this Democratic- controlled Congress to sit idly by and watch the spectacle with delight.
This is but one of many terrifying aspects of the CPSIA. It is not the one on people’s minds today because it is not generating expense . . . yet. This kind of risk will hit someone, sometime. So far, California has announced a broad settlement with toy companies over violations of local lead laws (http://ag.ca.gov/newsalerts/print_release.php?id=1636), and 39 SAGs feasted on Mattel for $12 million in another action (https://mail.learningresources.com/exchweb/bin/redir.asp?URL=https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://www.azag.gov/press_releases/dec/2008/Mattel%252520CJ.pdf ). When this moves downstream, the children's markets we depend on, that you depend on, will shrivel before your eyes. You heard it here first. It’s time to Amend the CPSIA before it's too late.
Friday, April 3, 2009
CPSIA - "Joe Consumer" and Consumers Union
"Joe Consumer" strikes again, this time spreading misinformation by quoting a misleading Consumers Report Blog about the CPSIA Rally. Joe posted a comment on my blogpost below about http://www.thepoptort.com/, the misleading blog he "authors" on behalf of The Center for Justice and Democracy, and directed readers to his blog on the Rally. Joe presumably knows he is spreading misinformation, as the 12 comments on the CR Blog make clear the many issues that post. I hardly know what to say - this is Justice and Democracy? Not in my book.
Consumers Union was honorable enough to post my comment, along with 11 others similarly critical of their work. To blunt Joe Consumer's nonsense campaign, I reproduce here the actual CR Blogpost and my reply.
Rick
http://blogs.consumerreports.org/safety/2009/04/businesses-rally-against-cpsia-consumer-product-safety-improvement-act.html
April 02, 2009
Businesses rally against CPSIA
We’ve reported many times on the Consumer Product Safety Improvement Act of 2008, a vital new law that helps ensure the safety of children’s products and revitalizes the beleaguered Consumer Product Safety Commission. The Act was signed into law last August by then-President George W. Bush after receiving overwhelming bipartisan support in Congress. It was created in response to the millions of toys, cribs, and other children’s products recalled for dangerous design flaws or dangerous levels of lead that injured and even killed children. But this week, more than seven months after the bill’s signing, some members of the business community staged a rally to ask that the CPSIA be amended.
Many who participated in Wednesday’s rally in Washington D.C. were industry lobbyists and representatives of large companies and of trade organizations that protested the effect of the bill on their businesses. Some who spoke at today’s rally, including Toy Industry Association President Carter Keithley, claimed that there are no health impacts from lead in toys. Others who spoke suggested that adult clothing was covered by the law, which is not the case. The lead testing restrictions apply only to children’s products. Further, some of the members of Congress who criticized the CPSIA voted in favor of the bill last summer.
The takeaway: The implementation of this law, which changes the way companies do business and makes a broad category of children’s products safer, has not been handled well. Congress expressly provided the CPSC, the agency charged with making the law work, the authority to address legitimate questions about its application. Unfortunately, the CPSC has been slow, if not downright reluctant, to provide timely exemptions or give clear guidance about the law’s actual requirements.
Folks with legitimate questions about the new law can and should certainly speak their minds, but it’s not okay when industry challenges the effects of lead on children’s health. It is absurd and flies in the face of good science. The American Academy of Pediatrics has repeatedly said there is no safe level of lead. That lead-tainted products crept their way back into the marketplace—even though lead paint was banned 30 years ago—is a clear indication that former laws and the agency that enforces them weren’t strong enough. It’s also disappointing that organizations such as TIA and the National Association of Manufacturers (NAM), which formerly embraced the new law, are now calling for widespread changes.
One point of agreement did surface today. Apparently, NAM agrees with consumer groups that the current leadership at the CPSC is responsible for the problems regarding the failure to issue timely guidelines or appropriate exemptions based on sound science. This is a major problem. Nancy Nord has held the position of Acting Chair since June 2006, after the resignation of Hal Stratton. The agency desperately needs new, more effective leadership at the helm—someone who will put consumer safety first, while also guiding the industry in its compliance efforts.
My comment on the CR Blogpost:
The Rally against the CPSIA on April 1 in Washington was no April Fool's joke. Efforts to marginalize the clear message of the Rally will not work. The CPSIA is misguided and misconceived in its precautionary "guilty until proven innocent" design. The ill-effects on industry and the children's products market cannot be jusified with vague assertions that the law solves some sort of public health emergency. The "emergency" does not exist.
Please note that you have made some serious mischaracterizations and factual errors in this "fact-checked" blog. First of all, you claim that the speakers were "industry lobbyists and representatives of large companies and of trade organizations". In fact, of the 20 Rally speakers (other than legislators), there were three speakers from trade organizations, namely the Presidents of the TIA, AAFA and NAM, and NO lobbyists. Every other speaker but one (the representative of Reckitt Benckiser) was from a small business or an individual. In other words, the Rally featured speakers from 16 small businesses or individuals, one large business, three representatives of industry organizations and no lobbyists. Your statement is misleading and untrue.
Second, you indicate that a "takeaway" of the meeting was that the problem was poor implementation of the CPSIA. In fact, that must be your opinion, but not the stated opinion of the speakers at the Rally. The message was clear and consistent among the Rally speakers that the problem is the law itself. Implementation was not the focus of these remarks. We were not pointing fingers at the CPSC either - but you are. In describing the Rally and then characterizing your opinion as the "takeaway", you suggest that we hold that view - which we do not.
Third, you mischaracterize the message of the scientists who appeared at the Rally, Dr. Barbara Beck, Dr. Rick Reiss and Dr. William Waddell. Each of these toxicologists reinforced the common wisdom quoted by Dr. Waddell: "The dose makes the poison." Dr. Beck clearly stated that we ingest more lead daily in our food than is likely ingested from use of many regulated children's products. You are welcome to review their remarks at our website www.AmendTheCPSIA.com. Again, you state your opinion as though it were a fact. This is misleading to your readers who trust your fact-checked blog for accuracy.
There are other, more minor errors or mischaracterizations, such as your assertion that some speaker claimed that the CPSIA applied to adult clothing (the President of the AAFA was the only speaker from the apparel industry and made no such claim), and your assertion that the 2007/8 recalls "injured and even killed children" (an analysis of recalls in this period from lead in children's products showed one death from swallowing a lead bangle on a bracelet, and one reported injury from lead-in-paint).
Finally, you also mischaracterize the remarks of the Rally speakers as endorsing YOUR view that Nancy Nord is at fault for the delays and failures to issue exemptions that you assert. I do not recall Ms. Nord's name or role being mentioned during any speech, and she was certainly not a focus of the day's events. Speaking for myself, I do not agree with your statement at all, and would observe that the data shows that Acting Chairman Nord and Comm. Moore have voted 2-0 in their last 23 decisions. It is hard to understand the reasons behind the finger pointing at Ms. Nord or at Republicans in general if the Commissioners are apparently acting in bipartisan unison. Is it because attacks on Ms. Nord make a nice diversion from an examination of the law itself?
Consumers Union was honorable enough to post my comment, along with 11 others similarly critical of their work. To blunt Joe Consumer's nonsense campaign, I reproduce here the actual CR Blogpost and my reply.
Rick
http://blogs.consumerreports.org/safety/2009/04/businesses-rally-against-cpsia-consumer-product-safety-improvement-act.html
April 02, 2009
Businesses rally against CPSIA
We’ve reported many times on the Consumer Product Safety Improvement Act of 2008, a vital new law that helps ensure the safety of children’s products and revitalizes the beleaguered Consumer Product Safety Commission. The Act was signed into law last August by then-President George W. Bush after receiving overwhelming bipartisan support in Congress. It was created in response to the millions of toys, cribs, and other children’s products recalled for dangerous design flaws or dangerous levels of lead that injured and even killed children. But this week, more than seven months after the bill’s signing, some members of the business community staged a rally to ask that the CPSIA be amended.
Many who participated in Wednesday’s rally in Washington D.C. were industry lobbyists and representatives of large companies and of trade organizations that protested the effect of the bill on their businesses. Some who spoke at today’s rally, including Toy Industry Association President Carter Keithley, claimed that there are no health impacts from lead in toys. Others who spoke suggested that adult clothing was covered by the law, which is not the case. The lead testing restrictions apply only to children’s products. Further, some of the members of Congress who criticized the CPSIA voted in favor of the bill last summer.
The takeaway: The implementation of this law, which changes the way companies do business and makes a broad category of children’s products safer, has not been handled well. Congress expressly provided the CPSC, the agency charged with making the law work, the authority to address legitimate questions about its application. Unfortunately, the CPSC has been slow, if not downright reluctant, to provide timely exemptions or give clear guidance about the law’s actual requirements.
Folks with legitimate questions about the new law can and should certainly speak their minds, but it’s not okay when industry challenges the effects of lead on children’s health. It is absurd and flies in the face of good science. The American Academy of Pediatrics has repeatedly said there is no safe level of lead. That lead-tainted products crept their way back into the marketplace—even though lead paint was banned 30 years ago—is a clear indication that former laws and the agency that enforces them weren’t strong enough. It’s also disappointing that organizations such as TIA and the National Association of Manufacturers (NAM), which formerly embraced the new law, are now calling for widespread changes.
One point of agreement did surface today. Apparently, NAM agrees with consumer groups that the current leadership at the CPSC is responsible for the problems regarding the failure to issue timely guidelines or appropriate exemptions based on sound science. This is a major problem. Nancy Nord has held the position of Acting Chair since June 2006, after the resignation of Hal Stratton. The agency desperately needs new, more effective leadership at the helm—someone who will put consumer safety first, while also guiding the industry in its compliance efforts.
My comment on the CR Blogpost:
The Rally against the CPSIA on April 1 in Washington was no April Fool's joke. Efforts to marginalize the clear message of the Rally will not work. The CPSIA is misguided and misconceived in its precautionary "guilty until proven innocent" design. The ill-effects on industry and the children's products market cannot be jusified with vague assertions that the law solves some sort of public health emergency. The "emergency" does not exist.
Please note that you have made some serious mischaracterizations and factual errors in this "fact-checked" blog. First of all, you claim that the speakers were "industry lobbyists and representatives of large companies and of trade organizations". In fact, of the 20 Rally speakers (other than legislators), there were three speakers from trade organizations, namely the Presidents of the TIA, AAFA and NAM, and NO lobbyists. Every other speaker but one (the representative of Reckitt Benckiser) was from a small business or an individual. In other words, the Rally featured speakers from 16 small businesses or individuals, one large business, three representatives of industry organizations and no lobbyists. Your statement is misleading and untrue.
Second, you indicate that a "takeaway" of the meeting was that the problem was poor implementation of the CPSIA. In fact, that must be your opinion, but not the stated opinion of the speakers at the Rally. The message was clear and consistent among the Rally speakers that the problem is the law itself. Implementation was not the focus of these remarks. We were not pointing fingers at the CPSC either - but you are. In describing the Rally and then characterizing your opinion as the "takeaway", you suggest that we hold that view - which we do not.
Third, you mischaracterize the message of the scientists who appeared at the Rally, Dr. Barbara Beck, Dr. Rick Reiss and Dr. William Waddell. Each of these toxicologists reinforced the common wisdom quoted by Dr. Waddell: "The dose makes the poison." Dr. Beck clearly stated that we ingest more lead daily in our food than is likely ingested from use of many regulated children's products. You are welcome to review their remarks at our website www.AmendTheCPSIA.com. Again, you state your opinion as though it were a fact. This is misleading to your readers who trust your fact-checked blog for accuracy.
There are other, more minor errors or mischaracterizations, such as your assertion that some speaker claimed that the CPSIA applied to adult clothing (the President of the AAFA was the only speaker from the apparel industry and made no such claim), and your assertion that the 2007/8 recalls "injured and even killed children" (an analysis of recalls in this period from lead in children's products showed one death from swallowing a lead bangle on a bracelet, and one reported injury from lead-in-paint).
Finally, you also mischaracterize the remarks of the Rally speakers as endorsing YOUR view that Nancy Nord is at fault for the delays and failures to issue exemptions that you assert. I do not recall Ms. Nord's name or role being mentioned during any speech, and she was certainly not a focus of the day's events. Speaking for myself, I do not agree with your statement at all, and would observe that the data shows that Acting Chairman Nord and Comm. Moore have voted 2-0 in their last 23 decisions. It is hard to understand the reasons behind the finger pointing at Ms. Nord or at Republicans in general if the Commissioners are apparently acting in bipartisan unison. Is it because attacks on Ms. Nord make a nice diversion from an examination of the law itself?
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