CPSIA - Dear President Obama

An Open Letter to President Obama:

Dear President Obama,

Tuesday's election results were a message to your administration. The "shellacking" you experienced was a referendum on your economic policies as well as a passionate call for smaller government.

Readers of my blog have heard all about these issues for two years. It is frustrating to me that you and your administration remain in the dark. You weren't listening.

My industry, children's products, suffered mightily at the hands of your administration. Admittedly the problem began on Mr. Bush's watch but it was your Democrats who refused to relent or admit their errors. Since passage of the Consumer Product Safety "Improvement" Act in 2008, your party has refused to consider our industry's increasingly pathetic pleas for mercy. The result has been utter market chaos and dramatic financial loss. This regulatory "railroad job" has driven many of us into politics against you and your party out of desperation and profound anger over this undeserved and insensitive treatment.

If you take the midterm election results seriously, you must reexamine the impact of this law on our industry and promptly offer sensible relief.

The problems with the CPSIA can be divided into four categories - Cost, Complexity, Risk and Intrusion. Please give up the idea that these problems can be overcome with tax relief or some sort of economic incentive. If you break my leg, I won't be able to get up and run like an Olympic champion no matter how many carrots you dangle in front of my nose. It's time to be accountable for the damage that the CPSIA wrought - and then directly address it.

Cost: The many ridiculous new rules in the CPSIA dramatically raise the cost of operating our businesses. It goes far beyond the asphyxiating testing costs that the CPSIA imposes. Wasteful administrative costs are skyrocketing in every direction. For instance, tracking labels do not magically appear on our products - we must hire people to redesign each of our products and our manufacturing processes, and we must hire yet more people to make sure we don't screw up these tasks. We sell or manufacture literally thousands of skus (items) - but have had only one tiny recall in the last 26 years. This is PURE UNADULTERATED WASTE. We nevertheless must incur these costs to keep the CPSC happy.

These well-documented costs come from somewhere. You may wonder why we're not hiring. [In fact, I have previously disclosed in this space that our head count continues to decline, an uninterrupted trend since 2007 to this very day.] Well, we must fund these unproductive costs from productive activities - sales, marketing, product development - you know, activities that produce new revenue. [Please note: your proposed tax increases will be paid from the same kitty.] Unlike you, we can't solve our money problems by printing more dollar bills - we have to EARN them. If you make us waste our money, we must shrink our business to pay these new costs. WE GIVE UP GROWTH TO PAY THESE WASTEFUL COSTS.

I find it exasperating to have to explain this to you.

Complexity: We now face perhaps 3,000 pages of new safety rules and laws applicable to our business. I have never included rules on childcare or infant items in this total. For those miserable companies who stubbornly persist in making this kind of item, their total is probably well in excess of 3,000 pages. Each word of those pages is a possible felony.

The pre-CPSIA total was about 100 pages of rules, most of which were inapplicable to our business. There was very little to remember - which made it easy for us to administer our business. We could teach the rules, we could remember the rules, we could follow the rules, we could set up sensible priorities oriented around safety (not merely compliance). This is no longer the case.

Face it, President Obama, NO ONE understands these new rules. I include the CPSC on that list. There are just too many rules, and they are riddled with inconsistencies, flaws and head scratchers. The rules are also a mess, existing in many forms, in many places, never correlated or conformed, and are certainly not indexed. The rules have no underlying logic, so it is not possible to anticipate how any rule should work or does work - you have to find the rule and study it, preferably with an expensive lawyer helping you. Even finding a particular rule is quite a treasure hunt.

We are pretty busy - this does not enhance our productivity.

I believe that unless one is a rabbinic scholar or some kind of savant, it is not possible to master 3,000 pages of dense and inconsistent rules. The CPSC has done little to make sense of these rules.

Consider the paradox of musical instruments - full-sized musical instruments are not considered "Children's Products" even if marketed EXCLUSIVELY to children. Does that make ANY sense to you? Remember, these are SAFETY rules so if musical instruments are unsafe for some reason, wouldn't logic suggest that we should not let children interact with them? And if they're safe, then they shouldn't be regulated at all. Right? Interestingly, the CPSC says that if you shrink the same instruments down for children, they WOULD BE considered "Children's Products" and subject to the CPSIA, even if marketed side-by-side with slightly larger, full-sized instruments which are not regulated. This makes absolutely no sense, is completely indefensible as public policy and creates a terrible quandary for any business attempting to interpret and apply these rules.

The complexity and opacity of the rules outstrips EVERYBODY'S abilities. We are completely stymied - and it's your fault. You and your team refused our advice on how to resolve these issues.

Risk: The CPSIA is a tort lawyers' dream. With the coming public database, our industry will be a feeding trough for these vipers. To say the least, you have permitted the government to set up a system DESIGNED to be gamed by lawyers and litigants.

How do you think business people will react to this massive expansion of the tort system? Please note that NO ONE contends that there are more injuries to address - it is absolutely clear that the effect of the CPSIA is to create many more claims of action. More cost, more risk - and as a result, there WILL be less economic activity.

Good job, guys!

Add to this misery the current practice of this CPSC to press for recalls that do not meet the CPSA's legal standards for recalls (substantial risk of injury or death) and to impose huge vindictive penalties. The agency is on the war path, trying with all its might to scare us to death. This is an especially powerful economic depressant for small businesses which typically lack the resources to resist these pressures. Small businesses are more conservative and tolerate risk less comfortably as they manage their own money and see themselves as having more to lose than mass market companies or public companies.

The aggression of the new CPSC is out of control. The current Chairman likes to BRAG about her big penalties. Trust has been utterly destroyed in the manufacturing community. In two short years, the CPSC squandered its reputation as a partner in safety, someone to be trusted. Who in their right mind would trust this CPSC? If you doubt me, ask McDonald's how they feel about being pressured to recall 12 million acknowledged safe Shrek glasses (and the ensuing media frenzy over cadmium - all without ANY documented injuries from cadmium in children's products EVER). Or ask Schylling Associates or Daiso how they feel about penalties imposed on them for rule violations without any injuries. By all appearances, those penalties reflected regulatory anger, not endangered public safety.

[While you're at it, ask the CSPC why they never completed their FOIA disclosure to me on the Schylling penalty.]

Seemingly, almost any violation of these rules can be twisted into a felony charge now. We joke in our office about visiting each other in jail - but it's not really funny at all. I simply cannot fathom conducting my affairs in a way that risks being charged with a felony. As a lawyer, the criminal risk imposed by the CPSIA is completely unacceptable to me and highly offensive. I often say that felonies cannot be committed accidentally - except in the Children's Product industry. The unavoidable accumulation of trivial infractions with heavy penalty risk gives the CPSC winning leverage in any negotiation. The game is FIXED. Everyone knows it, too.

This is no stimulus plan, by the way.

Intrusion: It's this simple - we have a new partner who showed up two years ago - the U.S. government. They don't know anything about our business and have never run any operation similar to ours but they now reserve the right to check all our work and to second-guess us. Mother May I? That's the new game in our business.


Could we live without ANY of this? Yes, most definitely. While the zealots behind this self-destructive law like to emphasize the POSSIBILITY of injury from lead and love to repeat the simple-minded chestnut that there is "no safe level of lead", they FAIL utterly to tie these claims of POSSIBLE injury to data of ACTUAL injury. There is no "nexus". Lead may be "bad" but it has no history of causing injury in children's products. Leaded gasoline, house paint and industrial pollution are the culprits that caused blood lead levels to rise materially - that's undeniably true. Congress missed the boat entirely with the CPSIA - it's all cost, no benefit.

Lead injuries from children's products are virtually unknown. My study of CPSC recalls in 1999-2010 totals one death (from a piece of jewelry) and three unverified injuries from lead in 11 years. Given the truly massive size of our industry and the children's marketplace, and the literally trillions of interactions with our industry's products each year, this injury total is statistically equivalent to ZERO. Instead of punishing our industry, you should give us a good citizenship award. We have earned the trust of U.S. consumers.

The path forward is clear but frankly, I Still don't think you get it. Trust has been broken. Until you and your administration DEMONSTRATE that you are taking a DIFFERENT path, we will continue to conduct a war against the CPSC and Congress. This defective law deserves a FULL repeal. It is misconceived and has cost countless jobs. I hope you and your associates will not continue to deny the obvious, to fly in the face of data and reason. The voters are on to this scam. They voted many Democrats out of work in midterm elections. If you and your team don't wise up quickly, in the over-regulation of our industry and other industries, they'll vote the rest of you out in two years.

The problem was never the law. Before Congress "improved" it, the CPSA was a powerful law that enabled the CPSC to closely supervise children's markets. Let's not forget that the recalls in 2007/8 were conducted under PRIOR law - the unamended CPSA had plenty of teeth. The recalls in 2007/8 were clearly a COMPLIANCE problem, not a problem with the rules themselves. For various reasons, some people weren't following the law closely enough. As objectionable as that may be, it is also important to remember that the 2007/8 recalls were associated with virtually NO injuries. So what should we have done, in lieu of all the tough new standards and venal penalty provisions in the CPSIA?

The agency should have been reorganized to work on compliance more effectively. The agency needed to invest in education, outreach to industry and more effective partnership with industry. This idea that we in the business community can't be trusted is revolting and completely untrue - it is a populist idea you and your allies flogged to get elected. If you want to keep your jobs for much longer, you need to drop this caustic idea. We are not bad people or incompetent people - we can be trusted and can be good partners (as our record proves). No, not everyone will be good or conscientious. Bad people and incompetent organizations cannot be legislated away (at a reasonable cost). Still, the data indicates that a lower cost approach of partnership and education will produce very good results.

Fixing this law will be a stimulus plan that creates JOBS. Please give us back control of our financial statements and we will find a good way to spend our own money to grow our businesses. We don't need your help - we need you to GET OUT OF THE WAY.

Yours sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
Vernon Hills, Illinois

CPSIA - August, The Month To Scare (Oops, Save) The Populace

Well, it's August, almost time for Congress to recess for elections which means it's also time for your Dem friends to save you again. Makes a nice story for election time. Remember how Congress saved us two years ago, by passing a little bill called the Consumer Product Safety Improvement Act on August 14, 2008? I bet you're getting ready for the bill's second birthday party! Anyhow, the Congressional cicadian rhythm drove a couple Pelosi clones, Rep. Jan Schakowsky (D-IL) and Jackie Speier (D-CA), to timely release their latest legislative salvos designed to prove up their worth to you, the voters.

Ms. Schakowsky, one of Illinois' "finest" who is rated the Number One Spender in Congress by the National Taxpayers Union (thanks, Jan!), offered up another CPSIA-like morsel, the noxious H.R. 5786 Safe Cosmetics Act of 2010. Before we go on, who's against safe cosmetics? Everyone raise their hands . . . no one? Okay, we're all for safe cosmetics. So what's the problem?

• Annual registration with the FDA for all manufacturers, including much proprietary and confidential information.
• A federally-mandated schedule of new fees for the FDA to assess on the now poorer cosmetics companies.
• New safety labels (an old Schakowsky standby to make everyone so much safer).
• FDA review of the "physical, chemical and toxicological properties" of each chemical or mixture listed on the label. And lots of testing.
• New FDA regulations on banned chemicals and so on.
• New prohibitions, meaning that penalties and perhaps criminal actions are possible.
• Mandated public reporting of "adverse health effects".

The trial bar has to be licking its chops. And Jan gets to claim to her constituents that they can't live without her. After all, who else is going to save them??? Just like the CPSIA saved our company, our employees and our customers. So, so, soooooo safe and we get an even bigger federal government as an added bonus!

Not content to be outdone, savior-in-training Jackie Speier followed up her ratting out of safe McDonalds Shrek glasses with the newly-minted H.R. 5920 Toxic Metals Protection Act of 2010. Anyone against being protected from toxic metals??? Hmmm, no one? Thank heavens we have such an alert member of Congress ready to sweep in to protect us - right before elections! One of the big effects of this law is to make lots of things illegal and to specify civil and criminal liability for infractions. We really needed this!

Ms. Speier explains her "motivation": “'Children’s developmental health in this country is threatened by exposure to products containing cadmium,' said Congresswoman Speier. 'In May, Wal-Mart removed cadmium-tainted jewelry from its shelves. Last month, McDonald’s recalled over 12 million glasses containing cadmium, and SmileMakers Inc. recalled 68,000 Children’s Happy Charm Bracelets and Football Rings for containing this toxic metal. It’s time to be smart and aggressive about the risks posed by toxic metals that can cause children harm. This legislation is aimed at protecting them from hazardous levels of metals in products they might use.'" Oops, she forgot to mention that the Shrek glasses were acknowledged to be safe by the CPSC or that none of these products is associated with a single injury. Details . . . .

Then there's the swelling pile of Op-Eds and Editorials touting the "urgent" need to tighten the noose on chemicals (LA Times: "The new regulations will be burdensome on industry — and even more so if the state approves the recommendations we've listed here — but they should also pay dividends by lowering health care bills and environmental cleanup costs, as well as spawning a new industry dedicated to developing safer chemicals."). [Ed. Note: I love the part about how the bill will lower costs! I wish newspaper editorial writers knew how to add and multiply - they could really figure stuff out with those skills.] Henry Waxman, current shield of the CPSIA and guardian of the rules and regulations that ensure the business death of the children's product industry, wants to finish the job by making us account for every chemical in every product. TSCA Reform - super! We'll all be so safe . . . in the unemployment line.

Your Congress at work - making the world safe from jobs and prosperity, an August tradition!

CPSIA - Fashion Jewelry Loses a BIG One

With morbid anticipation, I just read the statements of the three CPSC Commissioners on the Fashion Jewelry industry petition to exclude crystals and glass beads from the overbearing strictures of the CPSIA. On a day when I was a bit emotionally damaged by Tom Watson's failure to win the British Open, these statements more or less finished me off. Should we laugh or cry over this decision? Cry, because it bodes terribly for all of us.

The jewelry industry made all the usual arguments for excluding these non-controversial items from the law. The items in question have no history of causing injury, they are infrequently abused, the amount of lead possibly ingested is absurdly low, etc. Been there, done that. The staff recommended against the petition, per form, because the law clearly states that nothing can be exempt unless it either is always within the law's lead limits (in other words, it already complies) or else it cannot emit so much as an atom of lead into the body. The CPSC staff has previously opined that it has yet to identify a single Earthly material which meets this "common sense" standard which is why it has recommended denial of each and every stay.

The two Democrat Commissioners voted to deny the request on the grounds that the law does not permit exceptions. They then said they would direct the enforcement activities of the agency toward the class of children they deemed most "at risk" (a relative term, if there ever was one). Republican Nord also voted against the exclusion as required by law, but recommended a stay, mainly to allow Congress to fix the law.

Seems like "same old, same old", right? Not in this author's opinion. Here's what I take away:

a. The Days of Easy Stays are Over. The ATV'rs and bike industry can take some (limited) pleasure in their short stays. The window seems closed. Of course, it also means that when their stays are up, they are likely in big trouble. Chairman Tenenbaum took a strict constructionist view of the law: "[Having concluded that swallowing crystals and beads is foreseeable as required under Section 101(b)(1)(A),] the question turns to whether the ingestion or mouthing of these beads would result in the absorption of any lead by a child. In making a determination, I was mindful that the statute does not use the term "harmful" amount or another term which would allow staff to utilize a risk based approach." [She later explicitly rejects a risk based approach as not permitted under the CPSIA.] In other words, true to her word at her confirmation hearing, Ms. Tenenbaum is committed to enforcing the laws handed down by Congress without judgment. She read the law faithfully and did what it instructed. There was no consideration of consequences of the decision or of the relative risk posed by these materials.

Commissioner Moore chimed in with his own analysis of Congress' instructions on the narrow question of crystals. In quoting from the House Report behind HR 4040 (CPSIA), Moore noted that "Paragraph (4) authorizes the CPSC, in very narrow circumstances, to exclude, by rule, certain materials and products from the total lead weight limits. The lead content of these materials must be in a form that will not result in absorption of any lead whatsoever into the human body. . . ." [Emphasis added.] There you go.

Mr. Moore also notes that this decision of the Commission effectively overrules a Proposition 65 settlement applying to crystals. Not sure how the Commission's decision could be made more disruptive or commercially devastating. Even the over-the-top Proposition 65 is outdone by the CPSIA. The reliance of jewelry companies on this California settlement was seemingly not taken into account by Commissioners Moore or Tenenbaum. I believe the effect of this decision is to render the industry's inventory prepared in compliance with various states laws like California and Minnesota instantly WORTHLESS. To continue to sell these items on Monday is an intentional violation and we all know what misery that might bring. More gratuitous business risk and economic losses from your friends in Congress. . . .

I believe the Commission's stay decision on pens needs to be read very, very narrowly in light of the jewelry decision. It is hard for me to believe that the logic of the pens decision will be utilized again. Until it is, I believe that decision should be regarded as limited to the specific facts and circumstances of pens.

b. Economics Will Not Be Considered in Exclusion Decisions. Commissioner Nord produced a laundry list of immediate economic harm from the decision to reject a stay. It is shocking. Presumably, this data was available to the entire Commission but notably neither Tenenbaum nor Moore mentioned it. This makes sense because the CPSIA does not make financial impact relevant in these decisions. The Commission's decision is driven by the law's definition of the interest of consumers (note, I do NOT mean the ACTUAL interest of consumers), namely that "any lead is too much lead" and thus, financial impact is outside the decision matrix. I do not think this is right, because the law is really just a bundle of economic incentives, and in making this decision, the Commission is changing the rules of the market which will change behavior. Products will be killed, choice reduced and companies will exit. The widespread elimination of children's departments in the resale industry is a pertinent example of this effect. By narrowly defining consumer interests in this way, the CPSC ensures maximum economic damage to everyone.

Here's a glimpse of the future: In two years, the Commission will make a decision on whether the new 100 ppm lead limit is technologically feasible. This term is defined in the CPSIA in Section 101(d) - and nowhere will you find a reference to economics. Thus, my new pet saying can be taken as LAW now: If Rolex CAN do it, Timex MUST do it. Put that in your pipe and smoke it.

[There will be a Congressional election before this determination is made, please note. Some careful consideration of your voting choices could have a significant effect on this law, for those of us still in business by then.]

c. The Commission Seems to Think that Enforcement Discretion Makes Violations Go Away. The statements make clear that the CPSC won't be enforcing this rule outside of the market for children six years of age and under. What they do not address is the fact that they have clearly stated that these materials violate the law for all children 12 years of age and under. Thus, to "knowingly" import or sell these items into their no-enforcement zone is to take the chance that a shift in regulatory wind could mean BIGGGG trouble. The CPSC is unable to restrict the 50 State AGs either, so it leaves everyone WIDE OPEN to nastiness on the State level. Sound good? Who would take this chance?

The gerry rigging of this law in this way does not replicate the law that preceded the CPSIA (if that was the goal). In other words, this construct simply does NOT work to lessen risk or financial harm. By saying that the CPSC will only enforce in certain circumstances does NOTHING to make it easier to do business. We are not allowed to violate the law, whether the CPSC wants to enforce it or not. Read the penalties section and think about how penalties have been handed out so far (with lots of imputed "knowing" conduct). In the olde days, the decision on where to enforce or not was completely effective to demarcate the part of the market that needed to tighten its legal belt because back then, everything wasn't illegal. Now it is. The policy to only enforce in part of the market doesn't relieve any responsibility under the law - it only gives the appearance of shifting risk to that part of the market. Remember your 15(b) obligation to report - it still applies to ANY violation. Remember your whistleblower risk - you can't discuss using violative materials in the no-enforcement zone or risk "problems". Remember that any intentional violation of the law, whether the CPSC intends to enforce or not, could be grounds for a felony charge. Hey, it's not my idea - read the law. Do you want to run your business feloniously, even if the Commission says it's okay (today)?

d. Forget "Common Sense". The Commissioners in avoiding the obvious conclusion that glass beads and crystals can be safely sold and sticking closely to the ridiculous language on exemptions (notwithstanding the encouragement of the CPSC by a "primary sponsor" of the CPSIA to grant exclusions for "materials that can be shown to pose no [risk of a] measurable increase in a child's blood lead level", as noted by Ms. Nord) clearly breaks with the tentative baby steps of the Commission under Nord and Moore to introduce a semblance of common sense into the implementation of the CPSIA. Those days seem to be over. The new attitude appears to be that the law as written is to be enforced and that blunting the edges with "common sense" is inappropriate.

The Tenenbaum Commission's approach to statutory construction makes a lot of sense to me. I have long asked the Commission to enforce the written law and not make it up as they go along. Unwritten laws are even worse than bad written laws. I am glad the Commission is showing it can read. Congress remains in denial. I don't know if the jewelry decision is more of a message for Mr. Waxman or for you and me. If we or anyone wants a different way to administer safety, it will require a change in federal law. This is the reality of our situation, like it or not. This Commission apparently intends to enforce the law as written, and that won't change even if the law is foolish on its face. "Common sense" is no longer part of the calculus in interpreting this law strictly.

e. Don't Hold Your Breath for Relief on Tracking Labels. The narrow reading of the law by the Commission here, where almost nothing (other than money) was at stake, suggests grim tidings in the super-secret tracking labels guidance due to be voted into effectiveness without your comments on July 20. I can only speculate on why the Commission didn't think we should read the guidance before they voted on it. I think we could have handled it. The jewelry decision suggests that it is highly likely that the many problems created by the tracking labels provision will be left in place. As previously noted, the CPSC has not deigned to respond to ANY questions on the noxious tracking labels provision in the last 11-and-a-half months. We have no idea where they stand on anything.

Let me give you a great example - I think the guidance is going to require you to disclose your sources on your packaging and on your product directly. This was forecast by Gib Mullan and Cheryl Falvey at ICPHSO in February (we were told to "get over the mourning process"). This term alone will kill many companies and many products. All high volume customers will now have the option to go direct, courtesy of Congress. While this may seem like a zero sum game at first glance, what it really means is that the incentive to innovate or take financial risk on any item that you cannot protect will end. Private labeling will become much harder or impossible. Trading among competitors will end. The net result will be shrunken markets and withered companies. Serious consequences will follow. Again, the Commission has more or less indicated that economic consequences are not its concern, as Congress in its infinite wisdom has determined this provision is best for all of us. Brace for it.

I have long stated that tracking labels is the absolute worst part of this law. The emergency posed by this law is drawing near. If tracking labels becomes law on August 14 without delay and if this law isn't revised significantly in the very near future, the outlook appears very, very grim for all of us. The posture of this Commission suggests that we might be facing a worst case scenario soon. This is disappointing, to say the least. It is Congress' fault. The CPSC is doing what has been asked of it, ridiculous or not.

If you are still sitting on your hands, you might want to call your lawyer soon.

CPSIA - Updated Toy Recall Data

The TIA has published an analysis comparing first quarter and first half 2009 CPSC toy recalls against comparable period statistics for 2008. Total recalls are down 75% in the first quarter and 60% in the first half of this year. The comparison by units recalled and by category of recall is equally impressive.

So what does this mean? My guess is that the fundamental problem unearthed in 2007/8 was . . . compliance issues. There was NO safety issue, there was no defect in the law, there was no problem with a hobbled agency. This was, plain and simple, a case of companies ignoring or being ignorant of the law. There were also a couple of notorious and avoidable quality control breakdowns. Now, with the microscope placed over its head, the toy industry's safety issues are basically gone. Don't forget that this miraculous recall reduction occurred during a period in which the legal standards were still unchanged (first quartner 2009) and entirely in a period in which product testing IS STILL NOT REQUIRED. Does that suggest the possibility that the strictures of this law are OVERKILL? Well, I think so.

What would work fine is the prior law with better administration. Among other things, the penalties should be reconfigured (certainly to eliminate felonies except in the most egregious cases) and the self-reporting on violations should be scaled WAY BACK. The ASTM F963 standard should be also returned to voluntary status to keep things simple and focused from a regulatory standpoint. Lead-in-paint testing should REMAIN mandatory but a materiality standard (or official practice) should be adopted for violations.

Most importantly, the agency should recognize the need, the absolute URGENCY, of a liaison function with industry and of an educational mission. [This is old news.] The CPSC must take control of awareness of its rules and invest in better compliance through an enhancement of its relations with industry. Becoming the "cop on the beat" will NOT work to motivate compliance - it will motivate fear and loathing, deception and non-compliance. Good safety practices are economic for industry - because bad safety practices leads to high and unbudgeted expenses from tort and recall liability and higher insurance costs. It's in everyone's interest to behave responsibly, as long as the rules are reasonable and tailored to the need. The educational investment is no less pertinent than it is for the "Click It or Ticket" campaigns. This can be the salvation of the agency - and the children's product industry.

As Congress heads toward hearings on the CPSIA (finally), these new statistics deserve attention and analysis. A common sense approach to fixing this law can save a large industry and an important agency of the federal government while preserving the gains in compliance earned in the last two years.

CPSIA - Dents in the Education Market

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

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

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

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

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

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

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

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

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

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

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

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