Some people apparently think I contend that product recalls can only take place if the CSPC insists. I have certainly argued that the CPSC has no authority to demand or even ask for a recall unless certain specific conditions are met. Hate to be the bearer of bad news, guys, but there are limits to the agency's legal authority. Companies themselves can recall products for any reason. There need not be a safety reason - you can recall something from the market because the color's wrong, the material is somehow less than expected, wrong size, wrong instructions, wrong packaging, whatever. A company's ability to recall its own products is not limited by law.
In the case of the McDonald's Shrek glasses, yes, McDonald's declared a voluntary recall. That's not unusual - the vast majority of recalls are voluntary. Only a tiny handful of recalls every year are "mandatory". In any event, the critical issue here is NOT that McDonald's made this choice. As we have discussed, the publicity from this event forced McDonald's hand - they had to protect their brand at all costs. The issue here is that the CPSC apparently "urged" the company to "do the right thing". [These words come from the OnSafety blog, the official blog of the CPSC, believed to be written by Scott Wolfson, Director of Public Affairs.] It was apparently the "right thing" to do although the agency conceded that the glasses were "not toxic", in other words SAFE.
While companies are allowed to choose to recall safe products at their pleasure, the CPSC does not have the unlimited legal authority to reach out to American companies and tell them to take this kind of voluntary action.
The power to recall emanates from certain provisions of the CPSA and FHSA. Notably, Section 12(a) of the CPSA, the agency can't go to court unless there is an "imminent hazard". What might that be? "As used in this section, and hereinafter in this Act, the term 'imminently hazardous consumer product' means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury." Given that the glasses have been acknowledged to be "non-toxic", this standard is impossible to meet.
The relevant term in the FHSA is "banned hazardous substance". In Section 2(q)(1)(A), it is defined as "any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted". [If a ban is done pursuant to subsection (B) of this clause as a "household item" because it is chemical in nature, it must be done by rule, subject to comment and so on. There was no rulemaking process involved in this case.]
"Hazardous material" is defined in Section 2(f)(1)(D) in relevant part as "Any toy or other article intended for use by children which the Commission by regulation determines, in accordance with section 3(e) of this Act, presents an electrical, mechanical, or thermal hazard." And Section 3(e) refers only to electrical, mechanical or thermal hazards, clearly inapplicable here.
Bottom line, the McDonald's glasses are outside the reach of the CPSC . . . if the wording of its principal empowering laws matter anymore.
Thursday, June 10, 2010
CPSIA - What Does "Not Toxic" Mean?
Apparently, certain people who should know better have asserted that "not toxic" does NOT connote safety. They implausibly argue that it's "not the same thing". In other words, the argument goes that if you were to contend that something is "not toxic", it is somehow different than saying that it's "safe". I beg to differ. Certain people apparently think I don't "get it".
We should check that out, don't you think?
I am pretty sure these certain people are native speakers of English, so we can't go there.
Mr. Dictionary stepped up to resolve this difficulty. Here are some definitions that may help sort this out. Some dictionaries do not define "non-toxic", relying instead on the definition of the root word "toxic". I hope you, too, can make this leap.
a. American Heritage Dictionary (Official Edition): This is on my desk for just such an occasion. "Toxic" is defined as "Of or caused by a toxin or poison". The definition of a "toxin" is (in relevant part) "a substance, produced by a plant, animal or microorganism that . . . is capable of producing poisoning when introduced into the body . . . ." A "poison" is "a substance that causes injury, illness or death, esp. by chemical means". So I derive that "not toxic" means that the substance in question will NOT cause "injury, illness or death". I think you might call such a thing "safe".
b. The Free Dictionary: Two definitions of "nontoxic": (i) not producing or resulting from poison, and (ii) safe to eat. So according to this dictionary, "not toxic" means you can eat it safely. Not sure I'd recommend that for, say, a painted glass, but perhaps other people would.
c. Wikipedia: "Toxicity" is defined as "the degree to which a substance is able to damage an exposed organism." So something that is "not toxic" is something that has NO ability to damage an exposed organism. Another word for such a thing is "safe".
d. Thesaurus.com: Perhaps most pertinently, the primary synonym for "non-toxic" is "harmless" and the short definition is "not injurious or dangerous". The full list of synonyms is "controllable, disarmed, gentle, guiltless, hurtless, innocent, innocuous, innoxious, inoffensive, inoperative, kind, manageable, naive, nonirritating, nontoxic, painless, paper-tiger, powerless, pussycat, reliable, safe, sanitary, simple, soft, softie, sound, sure, trustworthy, unobjectionable, unoffensive". [Emphasis added] The antonyms are "bad, destructive, evil, harmful, hurtful, injurious, sinful, wicked".
So, just to be clear, when someone, anyone says something is "not toxic", what they mean is that it is SAFE. This is always the case, even if they flap their arms wildly about . . . for reasons that only they can provide.
Always happy to help.
Mr. Dictionary
We should check that out, don't you think?
I am pretty sure these certain people are native speakers of English, so we can't go there.
Mr. Dictionary stepped up to resolve this difficulty. Here are some definitions that may help sort this out. Some dictionaries do not define "non-toxic", relying instead on the definition of the root word "toxic". I hope you, too, can make this leap.
a. American Heritage Dictionary (Official Edition): This is on my desk for just such an occasion. "Toxic" is defined as "Of or caused by a toxin or poison". The definition of a "toxin" is (in relevant part) "a substance, produced by a plant, animal or microorganism that . . . is capable of producing poisoning when introduced into the body . . . ." A "poison" is "a substance that causes injury, illness or death, esp. by chemical means". So I derive that "not toxic" means that the substance in question will NOT cause "injury, illness or death". I think you might call such a thing "safe".
b. The Free Dictionary: Two definitions of "nontoxic": (i) not producing or resulting from poison, and (ii) safe to eat. So according to this dictionary, "not toxic" means you can eat it safely. Not sure I'd recommend that for, say, a painted glass, but perhaps other people would.
c. Wikipedia: "Toxicity" is defined as "the degree to which a substance is able to damage an exposed organism." So something that is "not toxic" is something that has NO ability to damage an exposed organism. Another word for such a thing is "safe".
d. Thesaurus.com: Perhaps most pertinently, the primary synonym for "non-toxic" is "harmless" and the short definition is "not injurious or dangerous". The full list of synonyms is "controllable, disarmed, gentle, guiltless, hurtless, innocent, innocuous, innoxious, inoffensive, inoperative, kind, manageable, naive, nonirritating, nontoxic, painless, paper-tiger, powerless, pussycat, reliable, safe, sanitary, simple, soft, softie, sound, sure, trustworthy, unobjectionable, unoffensive". [Emphasis added] The antonyms are "bad, destructive, evil, harmful, hurtful, injurious, sinful, wicked".
So, just to be clear, when someone, anyone says something is "not toxic", what they mean is that it is SAFE. This is always the case, even if they flap their arms wildly about . . . for reasons that only they can provide.
Always happy to help.
Mr. Dictionary
Wednesday, June 9, 2010
CPSIA - McDonald's Fallout Continues
The spectacle of the McDonald's cadmium "scare" continued to unfold today.
Let's not forget that this recall was "urged" by the CPSC although the CPSC admits in writing that the glasses are "non-toxic". In other words, the glasses are safe. As the manufacturer notes: "'It could have been any glass company,' said Ron Biagi, an executive with Arc International, which made the glasses. 'We all do the same thing using materials from the same suppliers.'" McDonald's clearly had no choice in the matter, suffering a terrible loss of prestige no matter what the outcome. So the CPSC, Rep. Jackie Speier, one anonymous tipster and a hyperbolic press forced a highly wasteful and destructive recall.
The tumult, chaos and confusion thoughtlessly spawned by the CPSC continues to unfurl in almost predictable fashion: "But the returns [to McDonald's] are just the beginning of the next chapter in the cadmium debate, with the CPSC poised to set new limits on the metal even as it downplays the McDonald's recall and environmental advocates aim to use the episode to build momentum for reform of federal toxics law."
A terrible move deserves an even worse follow-up.
What's the cause for alarm here? The glasses are safe, so says the CPSC . . . as it dramatically lowers the standard for cadmium. Yeah, nobody's worried.
The consumer group talking heads can't resist chiming in: "Don Mays, senior director of product safety for Consumer Reports, said cadmium was being used in some manufactured goods to replace lead, which has been eliminated from many products in response to heavy regulation and widespread health concerns. Many of those goods were once commonly associated with lead, like paint and inexpensive jewelry. 'We’re just starting to see this,' Mr. Mays said. 'It’s starting to creep into a lot of consumer products that never had it before.'”
Does anyone care that the CPSC SAYS THIS ISN'T TRUE? "After an Associated Press investigation first uncovered the high cadmium levels in some children's jewelry, CPSC Chairwoman Inez Tenenbaum publicly warned manufacturers in Hong Kong not to replace lead with cadmium or other toxic metals. Tenenbaum told senators in April that 'we really don't think' companies are deliberately swapping out lead for other hazardous chemicals, 'but we think they're being careless and not realizing that you cannot use these metals in children's products.'" [Emphasis added]
Some in the press aren't persuaded. After all, urban myths are true . . . aren't they? "[David Lazarus of the LA Times] notes that Cadmium has probably stayed off the radar for so long because people weren't widely aware of its use. The focus has primarily been on the danger of lead products, and lead product replacements weren't a primary concern. Chinese manufacturers began using Cadmium insted [sic] of lead to get the same vivid pigments in product colors." Right. David Lazarus knows all about this.
And then there are our Democratic leaders in Congress. It's election season so there's little incentive to be a calming influence. "Congresswoman Jackie Spear [sic], who first received the anonymous tip about the Shrek cups, doubts Europe is the Cadmium culprit due to its strict manufacturing rules. Spear [sic] suspects either a subcontractor or ingredient provider in China; China is one of the leading Cadmium producers in the world. . . . Spear [sic] says she has legislation in the works that would expand the Cadmium ban in U.S., specifying removing its use in any product for children."
And the basis for Rep. Speier's hunch is . . . what, exactly? The glasses were made in a U.S. factory: "In contrast to the Chinese-made children's jewelry recalled earlier in the year, the drinking glasses were manufactured in the United States, by the Millville, N.J.-based company ARC International. Ron Biagi, vice president for North American sales at ARC, said he was surprised by the recall and vouched for the safety of the glasses. While environmental and consumer groups pointed to the importance of identifying the producer of the cadmium-tainted enamel used on the McDonald's glasses, Biagi declined to name ARC's supplier. 'It's not fair for me to pull them in,' he said." OMG, somebody decent is left in the world! I had about given up hope.
Having set off the blaze, CPSC Director of Public Affairs Scott Wolfson again spewed more of his patented mixed signals sure to sow seeds of doubt: "'What's so important is for parents to understand the difference. ... Children are not at an acute risk; the glasses are not toxic,' Wolfson said, adding that 'there are no signs we're looking at a wave here of cadmium becoming the next lead.'" Which is why, Scott, you and your agency acted so promptly to push for a recall of this non-toxic product made of common materials in wide distribution in this country for years without any detectable adverse health effect? Which is why you told America to stop using the oh-so-safe glasses "immediately" in your OnSafety blog? Do I have this wrong? Clear as mud. Very believable, too.
There are terms for this that are too crass for a family publication like my blog. Let your imagination run. How will all this resolve itself? Of course, not very well. Justified by fear of "bone softening" (that sounds HORRIBLE, doesn't it?) and other bizarre maladies that supposedly COULD befall us from unspecified exposure to cadmium, we will get many new and ineffective regulations imposing yet more devastating costs and devastating risk on the children's product industry.
While hatred of government is a necessary by-product of the massive self-inflicted injury of the CPSIA, we will more pertinently be faced with the difficult challenge of protecting our life's work - our businesses. The livelihoods of our friends and associates at our company, the economic well-being of our customers and suppliers (often our close friends, too) and in our case, the economic future prospects of the kids who are being educated with our products, all hang in the balance. I don't know what stops this freight train before it tragically collides with reality. Certainly not leadership or a show of character from our government.
I hate to close these essays sounding like a Tea Partier (not that I resent the label). I don't wish to be marginalized for having strong views about an abdication of leadership and judgment by our government leaders. Say what you will, the McDonald's fiasco was fomented by politicians with agendas. Many companies and people - and our economy - will be severely damaged as a result.
There's nothing to be proud of here.
Let's not forget that this recall was "urged" by the CPSC although the CPSC admits in writing that the glasses are "non-toxic". In other words, the glasses are safe. As the manufacturer notes: "'It could have been any glass company,' said Ron Biagi, an executive with Arc International, which made the glasses. 'We all do the same thing using materials from the same suppliers.'" McDonald's clearly had no choice in the matter, suffering a terrible loss of prestige no matter what the outcome. So the CPSC, Rep. Jackie Speier, one anonymous tipster and a hyperbolic press forced a highly wasteful and destructive recall.
The tumult, chaos and confusion thoughtlessly spawned by the CPSC continues to unfurl in almost predictable fashion: "But the returns [to McDonald's] are just the beginning of the next chapter in the cadmium debate, with the CPSC poised to set new limits on the metal even as it downplays the McDonald's recall and environmental advocates aim to use the episode to build momentum for reform of federal toxics law."
A terrible move deserves an even worse follow-up.
What's the cause for alarm here? The glasses are safe, so says the CPSC . . . as it dramatically lowers the standard for cadmium. Yeah, nobody's worried.
The consumer group talking heads can't resist chiming in: "Don Mays, senior director of product safety for Consumer Reports, said cadmium was being used in some manufactured goods to replace lead, which has been eliminated from many products in response to heavy regulation and widespread health concerns. Many of those goods were once commonly associated with lead, like paint and inexpensive jewelry. 'We’re just starting to see this,' Mr. Mays said. 'It’s starting to creep into a lot of consumer products that never had it before.'”
Does anyone care that the CPSC SAYS THIS ISN'T TRUE? "After an Associated Press investigation first uncovered the high cadmium levels in some children's jewelry, CPSC Chairwoman Inez Tenenbaum publicly warned manufacturers in Hong Kong not to replace lead with cadmium or other toxic metals. Tenenbaum told senators in April that 'we really don't think' companies are deliberately swapping out lead for other hazardous chemicals, 'but we think they're being careless and not realizing that you cannot use these metals in children's products.'" [Emphasis added]
Some in the press aren't persuaded. After all, urban myths are true . . . aren't they? "[David Lazarus of the LA Times] notes that Cadmium has probably stayed off the radar for so long because people weren't widely aware of its use. The focus has primarily been on the danger of lead products, and lead product replacements weren't a primary concern. Chinese manufacturers began using Cadmium insted [sic] of lead to get the same vivid pigments in product colors." Right. David Lazarus knows all about this.
And then there are our Democratic leaders in Congress. It's election season so there's little incentive to be a calming influence. "Congresswoman Jackie Spear [sic], who first received the anonymous tip about the Shrek cups, doubts Europe is the Cadmium culprit due to its strict manufacturing rules. Spear [sic] suspects either a subcontractor or ingredient provider in China; China is one of the leading Cadmium producers in the world. . . . Spear [sic] says she has legislation in the works that would expand the Cadmium ban in U.S., specifying removing its use in any product for children."
And the basis for Rep. Speier's hunch is . . . what, exactly? The glasses were made in a U.S. factory: "In contrast to the Chinese-made children's jewelry recalled earlier in the year, the drinking glasses were manufactured in the United States, by the Millville, N.J.-based company ARC International. Ron Biagi, vice president for North American sales at ARC, said he was surprised by the recall and vouched for the safety of the glasses. While environmental and consumer groups pointed to the importance of identifying the producer of the cadmium-tainted enamel used on the McDonald's glasses, Biagi declined to name ARC's supplier. 'It's not fair for me to pull them in,' he said." OMG, somebody decent is left in the world! I had about given up hope.
Having set off the blaze, CPSC Director of Public Affairs Scott Wolfson again spewed more of his patented mixed signals sure to sow seeds of doubt: "'What's so important is for parents to understand the difference. ... Children are not at an acute risk; the glasses are not toxic,' Wolfson said, adding that 'there are no signs we're looking at a wave here of cadmium becoming the next lead.'" Which is why, Scott, you and your agency acted so promptly to push for a recall of this non-toxic product made of common materials in wide distribution in this country for years without any detectable adverse health effect? Which is why you told America to stop using the oh-so-safe glasses "immediately" in your OnSafety blog? Do I have this wrong? Clear as mud. Very believable, too.
There are terms for this that are too crass for a family publication like my blog. Let your imagination run. How will all this resolve itself? Of course, not very well. Justified by fear of "bone softening" (that sounds HORRIBLE, doesn't it?) and other bizarre maladies that supposedly COULD befall us from unspecified exposure to cadmium, we will get many new and ineffective regulations imposing yet more devastating costs and devastating risk on the children's product industry.
While hatred of government is a necessary by-product of the massive self-inflicted injury of the CPSIA, we will more pertinently be faced with the difficult challenge of protecting our life's work - our businesses. The livelihoods of our friends and associates at our company, the economic well-being of our customers and suppliers (often our close friends, too) and in our case, the economic future prospects of the kids who are being educated with our products, all hang in the balance. I don't know what stops this freight train before it tragically collides with reality. Certainly not leadership or a show of character from our government.
I hate to close these essays sounding like a Tea Partier (not that I resent the label). I don't wish to be marginalized for having strong views about an abdication of leadership and judgment by our government leaders. Say what you will, the McDonald's fiasco was fomented by politicians with agendas. Many companies and people - and our economy - will be severely damaged as a result.
There's nothing to be proud of here.
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