CPSIA - Consumers Union is Hazardous to Your Health

Lies, innuendos, misstatements, twists - which is it this time?

Today Ami Gadhia, one of the Consumers Union CPSIA hacks (a.k.a. "Policy Counsel") weighed in with her usual bunk about the lurking "dangers" in children's products.  In particular, today's tripe is a protest against modifying the CPSIA.  Her writings and utterances are invariably infuriating for their lack of perspective, tall tales and general fear mongering.  In her article "Turning Back the Clock on Child Safety Protections", Ms. Gadhia continues her fine tradition of twisting and obfuscating the facts.  Considering her background in the subject matter and her law degree, one must assume ill-intent.  This can't be accidental.

Let me debunk her junk one-by-one:

a.  "Turning Back the Clock on Child Safety Protections":  The Op-Ed's title is absurd in light of the actual bill's wording.  The CPSIA Amendment (ECADA) is a mild and surgical bill intended to offer minimal but effective relief from over-regulation while preserving the structure of the CPSIA.  Killing the CPSIA is politically impossible, it appears, so this is the best that can be offered at this time.  Ms. Gadhia must be asserting that ANY change in the CPSIA is a setback.  This argument is always left unproven - but no one ever holds her accountable so why not tell the tall tale?  The consumer groups rely on the appeal of the "zero sum" argument which also goes unchallenged.  It goes like this:  ANY change in the CPSIA which might benefit a business is THEREFORE a setback for children's safety.  If the Cubs lose 15-5, they are somehow better off if they instead lose 13-5.  Right. . . .

b.  Ms. Gadhia, like her fellow manipulators in the consumer "advocacy" field, relies on an emotional appeal to kick off her crock - the story of a child who swallowed magnets, leading to gory injury.  A few notes on this line of reasoning:

• The CPSIA is NOT a toy law.  Despite Ms. Gadhia's relentlessly repetitive references to toy safety, the law applies equally to ALL children's products, from shoes and t-shirts to pens to rhinestones to ATVs and bikes to books to educational products to carpet to what-have-you.  By focusing on toy gore, Ms. Gadhia lulls her reader into overlooking the awesome overreach of this bill.  We don't want kids injured by magnets . . . ergo, we should ban all hazards in all things.  Huh?
• The magnet hazard she refers to had never been seen by the agency previously.  It was a classic latent hazard, unregulated specifically because it was unrecognized.  You can see Gib Mullan, the current General Counsel of the House Energy and Commerce Committee and former General Counsel and Director of Compliance at the CPSC say ON VIDEOTAPE (at the CPSC Tracking Labels hearing) that the agency first thought the problem was a small parts issue, not a strong magnets issue.  No law can effectively regulate UNKNOWN hazards.  Claiming that the CPSIA "solves" this safety issue is pure baloney.
• The magnet hazard was addressed promptly and effectively by the agency without the need for changes implemented by the CPSIA. The agency had this power under its 1972 enabling legislation and following laws.
• Sometimes bad things happen to good people.

c.  Ms. Gadhia intones ominously about banned phthalates and their links to "a variety of health risks".  As has been well-documented here, that provision was placed in the law at the last minute by Diane Feinstein, true to her San Francisco roots.  This is the same place that worked for years to ban circumcision.  Yes, they are really scientific in that community.  For a discussion of phthalates, please watch the 60 Minutes segment in which I appeared.

d.  Ms. Gadhia trots out yet another misleading but longstanding justification for not changing the CPSIA - namely that it passed by an overwhelming majority of Congress.  I fail to grasp the intellectual power of this "infallibility of Congress" argument, and further note that dozens of members of Congress have been trying to change the law ever since.  There has been more than a dozen bills floated to amend this "perfect" law since August 2008.  In addition, the timing of passage of this law (three months ahead of the 2008 Presidential poll electing Mr. Obama) made it very dangerous politically to vote against this terrible law if you wanted to keep your job in Congress.  Even Mr. Bush had to sign it for political reasons.  The political and media frenzy in 2008 made rationality impossible, and minds were made up.  Have you ever made a bad call when you were furious?  'Nuf said . . . by everyone except the dangerous Ms. Gadhia.

e.  The Consumers Union storyteller informs us that ECADA "would poke some serious holes in the product safety net".  What a dream if Ms. Gadhia were actually right that this amendment would actually dent the CPSIA that I hate.  It doesn't, regrettably.  To "prove" her points, she lists four lies:

• "The bill undermines safety testing for children's products".  The bill eliminates MANDATORY testing as required by the CPSIA.  It does not ban testing, nor does it discourage or remove the incentive to test.  Excessive testing is one of the original problems cited in the bill, and has cost our company well in excess of $1 million since the passage of the bill - all without making even one product in our product range safer, even a little bit.  This term is the brainchild of the consumer groups (Rachel Weintraub?), reasoning that if the government didn't require mandatory testing, no testing would be done.  This misconception overlooks the enforcement of the new standards.  It is IMPOSSIBLE to assess whether you comply with the standard without testing.  Enforcement of the standard, as is anticipated, means that everyone WILL test.  What is being eliminated is the role of Mother Government "helping" us by telling us how to run our businesses.  If the standard is enforced, people will HAVE TO test.  If they don't enforce the standard, they won't enforce mandatory testing either. What's the big deal here?  Just the opportunity for Ms. Gadhia to mindlessly bang her drum.
• "The bill undermines lead protections".   Ms. Gadhia informs us that consumer confidence would "erode" if the current one-size-fits-all standard is replaced 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."  OMG - standards that are reasonably tailored to the individual hazard and individual product!  NO - please tell me we still live in a world where books, t-shirts, diamonds and rubies, ATVs, bicycles, appliances, pens, carpets, DVDs and toys are ALL subject to exactly the same rules. What is the world coming to???  I presume Ms. Gadhia thinks we are idiots, or else this is all she has, which ain't much.  Anyone surprised?
• "The bill undermines the effectiveness of the new crib safety standard".  I have previously addressed this issue - the three Dem Commissioners made this same baseless accusation a few days ago.  See my reply in this space.
• "The bill undermines the new public database for people to report and read about product safety problems".  Ms. Gadhia warns "the provisions in this legislation would place onerous burdens on the person making the complaint, thereby discouraging parties with valuable safety information from reporting."  Whoa - you mean we won't get to see stuff like this, this and this again???

Ms. Gadhia needs to get one last jab in:  "The Leisy family's experience shouldn't happen to another child."  Okay, I don't want to see any child injured ever again for any reason . . . but does Ms. Gadhia even make a coherent argument here?  Does one thing have ANYTHING to do with another?

It's time to turn back the clock on irrationality and lowest common denominator government.  Who should set the tone for us - the Anthony Weiners of the world (did you hear that his wife is pregnant?) or people that are interested in children's safety AND the viability of American businesses that provide jobs to your neighbors and valued products to your kids?  I think it's time that our representatives in Congress, especially those in Congress calling themselves Democrats, to stand up for WHAT'S RIGHT rather than what's easy or what's safe (for their job security).  We pay them to lead, not to cower.  PASS ECADA AND END THE CPSIA CHARADE!

CPSIA - Perhaps Mark Pryor is Detrimental to the American Public

I have resolved to "out" the politicians who stand between federal law and rationality when it comes to the CPSIA. We endured two years of torture at the hands of Henry Waxman in the House, who spent 18 months denying that anything was wrong with the CPSIA - and then tried to put through an amendment to his liking in the dead of night. I exposed that deceptive effort, but it didn't change much in Mr. Waxman's approach.

Now, post-2010 midterm elections, the winds have shifted and there is much more recognition that the CPSIA is deeply flawed. The House is controlled by Republicans who have long recognized and admitted that the law needed to be changed in important ways to save jobs (without sacrificing "safety"). Unfortunately, certain members of the Senate remains wedded to the Waxman script and seem committed to fall on the sword to protect each precious word of that defective and fundamentally flawed law. As they rise up to stand in the way of progress and rationality, I commit to YOU that I will out them in this space.

One person who is already raising his profile to protect this law is Senator Mark Pryor of Arkansas. I am told he has a copy of the signed CPSIA framed in his office (I haven't seen it personally, I admit) so presumably he is very proud of "his" law. It's a shame he hasn't been listening since he cast his vote in 2008. In today's USAToday, Mr. Pryor opines that de-funding the CPSIA database would be "detrimental to the American public".

Why does Mr. Pryor think this? "Private consumer complaint websites tend to focus more on performance issues, which is why 'one central place where consumers can go to find accurate information' about safety is needed, says Sen. Mark Pryor, D-Ark., who is pushing to keep the funding in place for the database." [Emphasis added]

Perhaps a place with accurate information about consumer product incidents is "needed" but is the CPSIA database such a thing? Why, precisely, does Mr. Pryor thinks the database information will be "accurate"? After all, we know that Inez Tenenbaum admitted in Congressional testimony that the agency will likely post inaccurate or misleading information. Remember, "that's what the rub is". We also know that the General Counsel of the CPSC says that the database will not be trustworthy, featuring "complaints" without shedding light on "causation". Remember, the General Counsel touts the disclaimers all over the website, which she is considering AMPLIFYING. In other words, she admits/acknowledges/trumpets that the information may not be true and can't be relied upon. In other words, it's not accurate.

Senator Pryor, are you listening?

I am sure the answer is "no". Expect more of this from Mr. Pryor. According to Wikipedia, he is quoted in the movie "Religulous" saying "You don't need to pass an IQ test to be in the senate".

No argument here.

CPSIA - John Stuart Mill and Crib Safety

"I have observed that not the man who hopes when others despair, but the man who despairs when others hope, is admired by a large class of persons as a sage."

John Stuart Mill
1828

The CPSC recently congratulated itself for banning drop-side cribs. Scott Wolfson clucked on Twitter: "RT @Scott_wolfson: The lifesaving crib rules approved by #CPSC today are a key part of the #CPSIA. #CPSC wants all babies to have a #safesleep." Other people, like Rep. Jan Schakowsky, also rushed forward to take credit for this change in regulation.

To judge from these press releases, a real crisis in public safety has been addressed. Is that true?

Wasn't it Winston Churchill who once said that history is written by the victors???

I have not touched the crib issue previously because, frankly, it's too hot to handle. Who would want to defend a product associated with baby deaths? There but for the grace of G-d goes I. On the other hand, the projected compliance expense of $550 million is breathtaking, particularly given the fact that the agency's ruling is both retroactive and mandates replacement of cribs in certain childcare facilities. Even Commissioner Robert Adler calls this expansion of the CPSC's role as "uncharted territory". This sets a new precedent for government (CPSC) intrusion that I find troubling, even under these circumstances.

The always astute Lenore Skenazy questions the CPSC's justification of three fatalities a year linked to drop-side cribs. She labels herself "subversive" for looking at the numbers. [You know you were thinking it, admit it!] Based on the injury figures released by the CPSC, she notes that the deaths attributed to drop-side cribs are less than those attributed to spider bites (five per year). She puts the drop-side crib-related deaths in the context of 4 million births per year and asks where the limit is in our effort to save ourselves.

Skenazy rattles off many other death statistics (such as 1,300 per year from stair falls) for further perspective on the scale of the drop-side crib "crisis". She does not discuss pool deaths, which number between 1-2 per day and generate 11-12 childhood emergency room treatments for serious injuries daily. But the obsession of this CPSC is drop-side cribs, so we should not worry about those other things . . . .

Lenore makes a good point. What IS the limit? And how much should we pay? Is this really a public health crisis, and if it is, aren't all those other causes of childhood deaths similarly a crisis? Who gets to decide which crisis is our top priority?

As J.S. Mill points out, despair sells well so we are naturally inclined to accept on face value the shrill self-congratulations of the politicians who are so busy making us so safe. I have been battling the same self-justifications and self-praise by politicians and consumer "advocates" over lead for three years. Does the absence of injury statistics matter to anyone?

Interestingly, the CPSC provides some context on its crib decision. If you read through the document announcing the change, you will find out a few interesting tidbits:

• Despite Ms. Schakowsky's claim to have created this regulatory storm, the industry has been working on standards for many years. ASTM F 1169–10, the full-size crib standard, was originally published in 1999 and has been revised several times since 1999, including 2010. The same can be said of the voluntary standards for non-full-size cribs. The statement in the CPSC press release noting that "[t]he federal crib standards had not been updated in nearly 30 years" is pretty misleading - the voluntary standards relied upon by the agency and the industry have been regularly revised. [Until this administration took over, the CPSC relied on voluntary standards as a matter of public policy.] Even more remarkably, please note that the current CPSC action adopts these voluntary standards as the new mandatory standards with minimal amendments, calling the adopted standards "substantially the same" as the voluntary standards. Hmmm.
• The CPSC initially issued mandatory standards for cribs in 1973 and amended them in 1982. There has been on-and-off activity at the agency in the ensuing years. Crib safety was not a new subject to the Commission when Ms. Schakowsky announced the latest crisis. Ms. Schakowsky didn't solve the crisis either when she purportedly wrote this provision of the CPSIA. Is it actually certain that there ever was a crisis in drop-side cribs . . . or was Ms. Schakowsky simply looking to bulk up her hagiography?
• Annual sales of cribs are estimated at 2.4 million per year, including non-full-size cribs (approximately 300K per year). Thus, over 11 years (2000-2010), that's 32 deaths and an estimated 26.4 million cribs sold and 40 million babies born. Crisis? There are approximately 591 models of full-size cribs and 81 non-full-size cribs on the U.S. market, according to the CPSC. In recent years, the CPSC has recalled 11 million "dangerous" cribs defect" since 2007 (about 40% of the estimated total sales in the last 11 years).
• A pilot CPSC project of data gathering on crib injuries from November 1, 2007 to April 11, 2010 generated a total of 3,584 "incidents", including 147 deaths associated with full-size cribs. Some of these incidents go back as far as 1986, btw. Of the 147 fatalities, 107 were not related to any structural defect in any way. Of the 35 fatalities related to "structural problems", 18 were related to drop-side cribs. [The CPSC document contains a detailed analysis of the injuries, as well.] So of entire pool of fatalities from cribs in this period, 18 of 147 were related to drop-side cribs in some way - 12% of the total fatalities. The CPSC press release somehow omitted this additional fact.

This data cannot be correlated to the December 17 CPSC press release in which they note 32 deaths since 2000 (11 years). There is no data provided on the AGE, CONDITION or QUALITY of the cribs involved in the deaths, no information on the MAINTENANCE or STRUCTURAL INTEGRITY of those cribs or whether the hardware failure was apparent or not. In its May 7th press release, the CPSC notes however that the 32 deaths include "some [fatalities which] occurred in cribs where the drop side detached without caregivers noticing the detachment, while some other deaths occurred after a consumer tried to repair the detached drop side, but the repair ultimately failed." [Check out the photos to see what a consumer "repair" might look like.] No quantification whatsoever. Arguably, this CPSC statement suggests that any solution to the problem involves, in whole or in part, user education.

The CPSC did not supply data to distinguish between product failures/defects and parental or caregiver error or misuse. It's all laid at the feet of the crib design. The CPSC's "analysis" is pretty simple - you don't need drop-sides for your baby to sleep comfortably in a crib, and if we eliminate drop-sides from the market, presumably a certain number of unnecessary infant deaths can be avoided. It's a presumption, however.

It's hard to argue with their logic but it's also hard to know what has been accomplished. We do know that the ban of drop-side cribs costs a lot of money, however. Isn't that relevant, even a little bit? If user education is essential to ANY "solution", how do we know we have spent our $550 million well or achieved anything whatsoever? The precise mechanism leading to the fatalities cannot be determined from the paltry data released to the public. Table pounding by advocates is, regrettably, not data. As Mr. J.S. Mill notes, the advocates' histrionics are likely to be taken as "sage" in this case. What if we knew that ten years out, the replacement cribs caused the same number of deaths or perhaps even MORE deaths? The rate of fatalities in these cribs in already remarkably low. How can we be sure that the new cribs will be better? Should we just take Nancy Cowles' word for it?

I find it interesting that the crib industry has been rather quiet on this change in rules. There are literally dozens of suppliers of cribs in this country, and more than 11 million units have been recalled. Why such quiet from these companies? I suspect the reason is that most consumer do not blame the brands for these recalls, and few people are motivated to return their cribs. [That includes me. Consumer advocates label recalls "unsuccessful" when we the people don't do what they want us to do.] So the cost of the recalls is probably modest BUT the government is mandating that $550 million be spent by childcare providers on NEW cribs. Why would crib manufacturers object to this cost-effective stimulus plan?! Surely many people taking the old drop-side crib out of the attic will say "Whoa, that was recalled. I better buy a new one . . . ." Many, many people.

Thank you, CPSC, for making us so darned safe! The crib industry probably loves you (secretly). Not so sure about hotels and childcare providers. Ultimately I know who pays for all this, however, and it isn't the consumer advocates or the regulators. It's the guy who stares back at you from your bathroom mirror.

The CPSC for its part did something easy and self-serving: they saved us from yet another lurking danger that none of us could see, all at our expense. I wonder if the CPSC would be as enthusiastic in their actions if they had to pay for it out of their own budget (or pocket). The money they spend is OURS, and they never even need to steady their hand to write the check. I don't know about you, but I think it's much easier to spend someone else's money, especially when there are a lot of zeroes involved. The CPSC is making us do it for our own good. Does anyone see a problem here?

The new rule sets dangerous new standards for CPSC (government) intrusion into our businesses and into our lives. The CPSC's action means that the Commission thinks it's now okay to take retroactive action with impunity. This is a BIG change in regulatory policy. Bob Adler notes: "The Commission has never before entered into a rulemaking, whether or not required by Congress, that not only has retroactive applicability, but also requires the replacement of every product in a given product class – particularly in an occupational setting like child care facilities." OMG - and this is okay . . . why??? Because he says it's a crisis and it's important to do.

This is government power without restraint, and it's a serious issue. This is much more serious that drop-side crib deaths. I do not know how to run a business in a market regulated by people who make up the rules to suit their mood. I thought there were protections against this.

Let's hope Mr. Adler and his associates made a good judgment for all of us. They are spending our money and we have no choice but to do as we're told. That's "government of the people, by the people, for the people" nowadays, I guess.

I wonder what Abe Lincoln would think of this government . . . .

CPSIA - WARNING: Spine Alert!

761 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 50 days left until Election Day.

Imagine pushing back on a regulatory agency. Imagine protesting demands for a knee-jerk recall of an item without a demonstrated (as opposed to asserted) substantial product hazard. Imagine someone standing up to the CPSC. Imagine . . . .

Okay, it didn't happen here. But Elfe Juvenile Products did zing the CPSC in its letter resisting a mimic recall of strollers by Health Canada. It even took them to task for a crib recall - wow! Without coming out and using pejorative terms, only implying them, Elfe accused Health Canada of "blindly" following the CPSC and conceding the authority of the U.S. agency. That can't be a compliment . . . .

“'My review of the applicable Canadian legislation does not reveal any mandate given to Health Canada to blindly accept decisions made by an administrative agency in a foreign jurisdiction. To do so, would, of course, be an unacceptable submission to the sovereignty of another country,' Ivan Bern, Elfe’s general counsel, wrote to Health Canada on Jan. 19."

Ouch. The next day our highly reactive agency announced a recall of 1.5 million strollers for laceration hazards and fingertip amputations.

Have you ever scratched your head and asked why the stroller and crib folks aren't pushing back? Well, confronting a federal agency that has already sic'ced the U.S. Attorney on some of its hapless victims (notably, Daiso) and rabid State Attorneys General like Illinois' Lisa Madigan is to tempt a deluge of litigation all over the country, merited or not. And they are certainly not above manipulating the press for the kind of hysterical headlnes certain to kill your business. Look at baby slings. Bankruptcy is your likely fate if you try to defend yourself. Never litigate with someone who has a printing press, as they say.

Well, one of them finally spoke up. The day after the U.S. stroller recall, Health Canada posted a recall for the Elfe-distributed stroller for the same hazard. "'In our opinion, there is no ‘trend’ to be discerned, unless it is that of 1,499,993 consumers acting responsibly, and possible seven instances where the goal of perfection in human behaviour was demonstrated to be unattainable,' Elfe’s general counsel told Health Canada." Not that it mattered what they thought - Health Canada proceeded with a recall immediately anyhow.

To add to the strangeness of this interaction, Elfe was also a distributor of Simplicity cribs at the time. Those cribs started crib mania at the CPSC and also created a craze over "responsible parties" after Simplicity was driven into bankruptcy. The CPSC busily talked down Simplicity cribs, labeling them "dangerous". No statistical analysis of the use of these cribs was released to my knowledge, just an injury count over many years. [I raised three children with dropside cribs without incident. I was also raised in a dropside crib to my knowledge. Although some people think I was dropped on my head as a child, that's not the crib's fault.]

Consider what happened next in Canada: "Following these statements, Elfe, the former distributor of Simplicity products in Canada, provided different advice to Canadian parents, telling them to make sure the crib was assembled properly. And 'if the drop-side is installed upside down or not securely attached,' Elfe recommended parents reinstall the drop-side the proper way with new hardware, to be provided free of charge by the company. A few days later, Health Canada posted Elfe’s voluntary recall on its website, saying the department had assessed Elfe’s metal retrofit kit and determined that it did not adequately correct the hazard posed by the drop-side crib. The newly released private correspondence reveals Elfe didn’t think this course of action was needed, accusing Health Canada again 'deferring to the CPSC’s unilateral actions' in the face of negative press." [Emphasis added]

Frankly, this is the closest the press has come to reporting the truth about the CPSC and the mania spawned by the CPSIA. The CPSC is feeding public perceptions of danger where the agency formerly took the view that consumers bore some responsibility to use their equipment properly and to maintain it in good condition. Nowadays, these issues are twisted into asserted "substantial product hazards" and are accompanied by a government-sponsored negative publicity campaign (think of all the Good Morning America appearances you have seen Tenenbaum make). The agency almost blatantly dares companies to push back - with Lisa Madigan, Jerry Brown and other State Attorney General thugs waiting to pounce. The toxic commercial environment in the U.S. is not enough to satiate them - they must cross borders to spread ill will and poisonous markets to other countries.

There is no way to argue with this kind of tyranny. Their assertions are considered "findings". The political nature of such "findings" is rarely outed. Even when the company itself initiates a recall, the agency implicitly claims it as its own (like a skin on the wall) and announces it as one of its consumer "triumphs". These recalls exist on the CPSC website as precedent undistinguished from other recalls - influencing the decision-making of other companies and eroding the confidence of consumers. With the CPSC imprimatur, recalls are taken as signs of further corporate bad behavior.

Hats off to Elfe for at least trying to push back. I wish they had more company. The only way to end this kind of regulatory tyranny is to expose it and to resist corporate slander at the hands of a rogue agency.