In my recent post on the CPSC's latest lead compliance guidance, I observed that the agency differentiates regulation of known childhood hazards by the "intent" of the product's maker, irrespective of the physical effect of the hazard on children. This rather shocking development derives from the awful CPSIA, where the marketing intent of a product is used to determine if the product is inside or outside the new restrictions. Safety be damned?
For this reason, a ballpoint pen (a "pen") is okay, unregulated and untested as to lead if it is not "primarily" intended for children. If a pen is "primarily" intended for children, it needs to be proven lead-free (within the new standards, okay). Notably, all children use pens. Thus, we can safely assume there are two kinds of pens used by children: (a) those primarily intended for children (the smaller set of pens) and (b) those NOT primarily intended for children (the larger set of pens). The CPSC is only interested in testing and regulating the smaller set, the ones primarily intended for children - this in spite of the fact that the agency knows that the unregulated larger set is used universally and in high numbers by children. In theory, the pens in both sets could be identical - and it wouldn't matter. Conclusion: the "new" CPSC is all about enforcement (which pens are regulated and which are not?) and NOT about safety (which pens are actually safe and which are not?). This is truly sad - for American consumers (including me and my family).
How did this happen?
The law pushed us here, and the new leadership at the CPSC, led by Inez Tenenbaum, was only too enthusiastic to take us along for the ride. The new CPSC outlook appears to be that the CPSIA defines safety and ergo, vigorous enforcement of the law makes everyone "safer". If the law proscribes a product, a feature or a use, it is unsafe, and barring compelling evidence to the contrary, if the law doesn't proscribe the product, feature or use, it's safe. That's it. Turning back to the astounding pen decision, the rationality of the CPSC's position is therefore dependent on the CPSC having NO information suggesting that pens present a danger to children from lead. This makes it possible for them to say that it's fine to sell unregulated pens to kids. Of course, it also means that they are knowingly outlawing something that they KNOW is safe (pens primarily intended for children). They just don't want to admit it.
Ah, that's the rub, isn't it? They won't admit that their mission has been terribly distorted by this law. They want to pretend that, in fact, they are still the champions of safety. [Ed. Note: In many ways, the CPSC remains a great champion of safety. The implementation of the CPSIA is NOT one of those ways.] How far will they go to assert moral high ground as the CPSIA police rather than as an agency with a safety mission first and foremost?
Earlier today, the Grand Haven Tribune posted (yet another) article about the ill-effects of the CPSIA. This time the article focused on the dilemma faced by small cottage industries and handcrafters under the new safety law. Consider the quotes from the CPSC spokesperson in light of our discussion:
"'This law is intended to make products safer for children because there are too many incidents where children have ingested too much lead,' said Kathleen Reilly, public affairs specialist for the U.S. Consumer Product Safety Commission. 'There are many, many products that contain lead. So this takes a look at preventing that.' With the product safety act, the commission plans to significantly reduce the total lead content in products from 600 parts per million to 100 ppm by August 2011. Products now must not contain more than 300 ppm, according to the act. 'We're not trying to put people out of business,' Reilly said. 'But there has to be safer standards for children's products. . . . We're not out to get anyone. . . . We're just following the law to make sure people at home who make children's products make safe products. How do you know whether or not it's safe if it's never been tested?'"
So, the CPSC says that the standards are needed to stop "too many incidents" where children have ingested "too much lead". From toys, hairbows and clothing - or from lead paint on the walls of their homes or by ingesting lead in dirt? The new CPSC shockingly does not distinguish among these sources of lead - it just reads the law, enforces it . . . AND then justifies it. The assertion that we have a widespread lead poisoning problem from children's products is the justification, however fantastic and faulty. I would like to point out that the notorious lead-in-paint recalls of 2007/8 resulted in ONE reported injury and ZERO deaths over 25 months. Hmmm.
The agency continues its justifications with the implication the agency believes and believed that "safer standards" were necessary. Is it true that the CPSC went to Congress to ASK for these new standards? Did they testify in favor of the tighter standards, saying that they were necessary to stop a public health crisis? Did the CPSC Staff rise up and demand that standards be tightened? The answers are no, no and no. However, Ms. Reilly's remark makes a good sound bite and it makes the agency's enforcement policy sound appropriate and necessary.
The worst of this string of justifications is her assertion "How do you know whether or not [a toy is] safe if it's never been tested?" Where did Ms. Reilly come up with this one? I was not aware that the CPSC actually believed the old chestnut that it is appropriate to assume the worst about products unless manufacturers preemptively test. Say, this sounds faintly familiar . . . yes, it's coming back to me . . . . Anyone remember this quote: "Businesses’ assertion that they’re having to test products they know are safe is absurd. You only know if a product is safe if it’s been tested." [Emphasis added] The author: Rachel Weintraub, director of product safety for the Consumers Federation of America in the Wall Street Journal on September 10. In other words, the CPSC has adopted the consumer groups' rationalization for the CPSIA to justify their emphasis of enforcement over safety.
Ironically, the coherence of the CPSC's new message is destroyed by the fact that items outside the regulation (such as pens not intended for children) won't be tested but may be used widely by children. Are they still "safe"? Go on, CPSC, chase your tail!
The mission at the CPSC used to be safety. A product, component, material or use was evaluated for risk, and it was regulated only if it presented a harm. Now Congress has fobbed off a dangerous defective law on the CPSC, installed an enforcement-first Chairman, who in turn ramped up the agency's PR machine to make the new police force look like a safety patrol. In fact, the new leadership seems obsessed with enforcement and rarely asks about actual safety when discussing products affected by the CPSIA. When thinking about brass or about pens, does the subject even come up? Do I need to remind you of the rhinestones fiasco? The agency solves this problem with its "public affairs specialists", employed to lull the public into submission with the tranquilizer that we always needed this excessive regulation. . . . That makes it all okay!
I am disappointed in myself that I am even somewhat surprised by all this. After all, history is written by the victors and in this case, the Democrats put their people in charge and told them what to do. The retelling of the safety story has begun, and in the process the 37-year mission of the agency is being obliterated before our very eyes. Ironically, I feel strongly that this will end in Americans being less safe, not more.
Showing posts with label Marketing Intent. Show all posts
Showing posts with label Marketing Intent. Show all posts
Friday, October 23, 2009
Wednesday, October 21, 2009
CPSIA - CPSC Isn't Interested in These Ways to Poison Children
In a clarification of the rules implementing the CPSIA, the CPSC today documented which ways to poison children with lead are legally permissible.
First, it is okay to incorporate as much lead as you want in your product, provided that it is not "intended primarily" for children: "The Commission is often asked what products must comply with the lead content limit, i.e., what is a 'children’s product' under the law. The answer is anything that is designed or intended primarily for a child 12 years of age or younger. 'Primarily' is the key word used in the law. Not everything a child uses or touches must meet the lead content limit, only those things designed or intended primarily for a child 12 years old or younger." So, this means that the lead limits only apply to products intended "primarily" for children, and does NOT apply to products that children might use but aren't aimed at the children's market. [This is the dilemma in the brass bushings case.] Regulation of children's products exists in its own little world, and hazards that exist within that market don't exist outside it - is that it?
The CPSC will make a determination about this intent based on what you say or what you and others think about your product: "We consider how the product is marketed as well as what the manufacturer has said about the product (if reasonable) and whether consumers commonly recognize the product is being intended for a child 12 or younger." Given that the CPSC is supposed to protect consumers from untoward product hazards (hence the agency's name), I think it is fair to conclude that the CPSC has decided use of lead is only dangerous if the leaded product is intended for children. Intent apparently affects the physiological impact of lead. Interestingly, this is also the case with phthalates. Perhaps these materials were banned from children's products because they can be activated by mind control, which is clearly dangerous.
I find the CPSC's position compelling, as it suggests that perhaps the rules for small business under the CPSIA should be different. Many people have suggested to me that we should demand different rules for small business. After all, small businesses are severely and unfairly penalized under the new law - perhaps small business should get a pass? I have always said "no" on the grounds that parents are unlikely to forgive injury based on who caused it. Injuries are bad, whether caused by a big business product or a small business product. Therefore, it seems imperative to me that one (rational) set of rules needs to apply to everyone.
If, however, lead is okay if delivered by pen (". . . most consumers would not consider an ordinary ball point pen as being intended primarily for use by a child 12 years of age or younger") but not by way of an electrical cable in a potato clock, then perhaps we can rethink the other rules by analogy. Thus, this new CPSC position paper suggests that it might also be okay for certain kinds of businesses to poison kids. Pen companies, for instance, are apparently unrestricted - your Bic can be made of pure lead, that's fine with the CPSC. By this same pretzel logic, I think it is reasonable to hold that small businesses are exempt from the law. Why not?!
In the same document, the CPSC also reiterated their excellent advice on materials that can be included in children's products without testing for lead. They chose to remind us that our old friends palladium, rhodium, osmium, iridium and ruthenium are okey-dokey in children's products. The fact that these materials are well-known to be poisonous, explosive and made from spent nuclear fuel rods did not apparently deter the CPSC. I know I am not a "safety professional" but I would think that at least some of these materials are hazardous substances under the FHSA, presumably making them poor candidates for exemption from the CPSIA. Given that these materials continue to appear on the CPSC's exempt list suggests that I must not fully appreciate their safety benefits . . . .
Of course, the CPSC's permission to use these materials on the grounds that they are lead-free seems remarkably out of touch with reality. Each of these materials, like other permitted materials like surgical steel, certain stainless steels, gold, silver, platinum and titanium, as well as diamonds, rubies, sapphires, emeralds and natural or cultured pearls, is absurdly expensive and in many cases, quite rare. It may sound good to say that the market is full of available alternatives, but if they are ridiculously expensive or hard to obtain, how is that any different than giving us permission to use pixie dust or krytonite? As a practical matter, not at all.
Someday, I wish the CPSC would issue practical advice that made sense to me. Once upon a time, I actually thought our nation's safety laws were rational, understandable and predictable. Nowadays, they are riddled with traps for the unwary and require teams of people to interpret and administer them. The implementing rules are detached from any semblance of the reality of the marketplace: "The products on this list are all things the Commission has determined do not contain lead over 100 ppm, which is within the allowable 300 ppm limit. Thus, they will comply with the law (and must always comply) and, therefore, do not need testing and certification. They do not need to be tested by a third party laboratory to prove they are, in fact, made of something on the list, and they do not need to be tested to prove that they meet the lead content limits . . . . Some retailers may want manufacturers and importers to test and certify their products, but those tests and certificates are not required by the Commission for the materials or products on the list." That makes it fine, I guess - the CPSC has had nothing to do with this "mysterious" phenomena.
As long as the CPSC thinks it is okay to wear blinders while doing its job, we will continue to get rules describing the legal and illegal ways to poison children and other safety conundrums. I am tired of it, what about you?
First, it is okay to incorporate as much lead as you want in your product, provided that it is not "intended primarily" for children: "The Commission is often asked what products must comply with the lead content limit, i.e., what is a 'children’s product' under the law. The answer is anything that is designed or intended primarily for a child 12 years of age or younger. 'Primarily' is the key word used in the law. Not everything a child uses or touches must meet the lead content limit, only those things designed or intended primarily for a child 12 years old or younger." So, this means that the lead limits only apply to products intended "primarily" for children, and does NOT apply to products that children might use but aren't aimed at the children's market. [This is the dilemma in the brass bushings case.] Regulation of children's products exists in its own little world, and hazards that exist within that market don't exist outside it - is that it?
The CPSC will make a determination about this intent based on what you say or what you and others think about your product: "We consider how the product is marketed as well as what the manufacturer has said about the product (if reasonable) and whether consumers commonly recognize the product is being intended for a child 12 or younger." Given that the CPSC is supposed to protect consumers from untoward product hazards (hence the agency's name), I think it is fair to conclude that the CPSC has decided use of lead is only dangerous if the leaded product is intended for children. Intent apparently affects the physiological impact of lead. Interestingly, this is also the case with phthalates. Perhaps these materials were banned from children's products because they can be activated by mind control, which is clearly dangerous.
I find the CPSC's position compelling, as it suggests that perhaps the rules for small business under the CPSIA should be different. Many people have suggested to me that we should demand different rules for small business. After all, small businesses are severely and unfairly penalized under the new law - perhaps small business should get a pass? I have always said "no" on the grounds that parents are unlikely to forgive injury based on who caused it. Injuries are bad, whether caused by a big business product or a small business product. Therefore, it seems imperative to me that one (rational) set of rules needs to apply to everyone.
If, however, lead is okay if delivered by pen (". . . most consumers would not consider an ordinary ball point pen as being intended primarily for use by a child 12 years of age or younger") but not by way of an electrical cable in a potato clock, then perhaps we can rethink the other rules by analogy. Thus, this new CPSC position paper suggests that it might also be okay for certain kinds of businesses to poison kids. Pen companies, for instance, are apparently unrestricted - your Bic can be made of pure lead, that's fine with the CPSC. By this same pretzel logic, I think it is reasonable to hold that small businesses are exempt from the law. Why not?!
In the same document, the CPSC also reiterated their excellent advice on materials that can be included in children's products without testing for lead. They chose to remind us that our old friends palladium, rhodium, osmium, iridium and ruthenium are okey-dokey in children's products. The fact that these materials are well-known to be poisonous, explosive and made from spent nuclear fuel rods did not apparently deter the CPSC. I know I am not a "safety professional" but I would think that at least some of these materials are hazardous substances under the FHSA, presumably making them poor candidates for exemption from the CPSIA. Given that these materials continue to appear on the CPSC's exempt list suggests that I must not fully appreciate their safety benefits . . . .
Of course, the CPSC's permission to use these materials on the grounds that they are lead-free seems remarkably out of touch with reality. Each of these materials, like other permitted materials like surgical steel, certain stainless steels, gold, silver, platinum and titanium, as well as diamonds, rubies, sapphires, emeralds and natural or cultured pearls, is absurdly expensive and in many cases, quite rare. It may sound good to say that the market is full of available alternatives, but if they are ridiculously expensive or hard to obtain, how is that any different than giving us permission to use pixie dust or krytonite? As a practical matter, not at all.
Someday, I wish the CPSC would issue practical advice that made sense to me. Once upon a time, I actually thought our nation's safety laws were rational, understandable and predictable. Nowadays, they are riddled with traps for the unwary and require teams of people to interpret and administer them. The implementing rules are detached from any semblance of the reality of the marketplace: "The products on this list are all things the Commission has determined do not contain lead over 100 ppm, which is within the allowable 300 ppm limit. Thus, they will comply with the law (and must always comply) and, therefore, do not need testing and certification. They do not need to be tested by a third party laboratory to prove they are, in fact, made of something on the list, and they do not need to be tested to prove that they meet the lead content limits . . . . Some retailers may want manufacturers and importers to test and certify their products, but those tests and certificates are not required by the Commission for the materials or products on the list." That makes it fine, I guess - the CPSC has had nothing to do with this "mysterious" phenomena.
As long as the CPSC thinks it is okay to wear blinders while doing its job, we will continue to get rules describing the legal and illegal ways to poison children and other safety conundrums. I am tired of it, what about you?
Tuesday, January 13, 2009
CPSIA - The Misconception of a Marketing Intent-driven Law
From: Rick Woldenberg
Sent: Tuesday, January 13, 2009 8:48 PM
To: 'Christian.Fjeld@mail.house.gov'; 'robin.appleberry@mail.house.gov'
Cc: 'brian.mccullough@mail.house.gov'; 'shannon.weinberg@mail.house.gov'; 'william.carty@mail.house.gov'; 'mjg@brown-gidding.com'; Etienne Veber; 'challengeandfun@gmail.com'; 'kathleen@fashion-incubator.com'; 'Stephen Lamar (slamar@apparelandfootwear.org)'; 'Nancy Nord (nnord@cpsc.gov)'; 'Joe Martyak (jmartyak@cpsc.gov)'; 'Mary Toro (MToro@cpsc.gov)'; 'tmoore@cpsc.gov'; 'Patrick Magnuson (patrick.magnuson@mail.house.gov)'; 'Carter Keithley (ckeithley@toy-tia.org)'; 'Rick Locker (fblocker@LockerLaw.com)'; 'Desmond, Edward'; 'David Callet (calletd@gtlaw.com)'; 'ravitz.georgia@arentfox.com'; Dennis Goldman; 'Pamela Gilbert (pamelag@cuneolaw.com)'; 'Robert Adler'; 'Dan Marshall (dan@peapods.com)'; 'erik.lieberman@mail.house.gov'; 'cfalvey@cpsc.gov'; Judy Bailey (judith.bailey@mail.house.gov); adele@narts.org; kmchugh@astratoy.org
Subject: CPSIA - The Misconception of a Marketing Intent-driven Law
The CPSIA presents puzzles for those intent on complying with its terms. I mentioned one perplexing consequence of the CPSIA in my letter entitled “CPSIA Problems Seem Endless” dated January 12, namely that the rules for total lead can apply differently for a manufacturer and its dealer for the VERY SAME PRODUCT. In that letter, I noted that an industrial product would not subject the manufacturer to CPSIA lead standards for good reason, as the product is not intended for children 12 years of age or younger. However, if the manufacturer sells the product to a dealer who puts it in a catalog that he then mails to schools, the dealer becomes subject to the total lead rules. The common understanding of the CPSIA rule defining a Children’s Product depends entirely on intent, in other words, what is in your heart and in your business plan when you offer the product for sale. The nature of the product does not govern the application of the new lead standards. In this particularly case, since the manufacturer is objectively free of testing obligations and the dealer is objectively subject to the testing standards, the law creates an immediate conflict in the supply chain. Since it is likely that the dealer sells only a small volume of the distributed product (and therefore cannot afford to test the product profitably) and because the manufacturer will lose very little business by refusing to test the product, this industrial product will be dropped from the school catalog. There is no information here to suggest that the product was not safe by any definition. We’ll never know, because no one will test it, and commerce in this item will stop in the school market.
These small stories are meaningful, especially when viewed in the aggregate. These battles in the marketplace are a direct result of the disruptive effect of a poorly designed rule. The definition of Children’s Product should be objective, so that all sellers of the same product are subject to the same rule. The principal reason for this change is that an intent-based law creates too much confusion and dislocation. Either a product is for children or it’s not, and what you think when you sell it should be irrelevant. If intent is essential to the definition, the result will be a smaller economy or a CPSC that will never cease issuing rulings. The CPSC, by the way, has had objective rules in place for many years governing age grading. Age grading is essentially a tool for deciding if something is a product intended for children. The confusing addition of the overly-broad definition of Children’s Product makes the rule on age grading harder to comprehend, and will create lasting confusion among companies attempting to sort out how to comply with law.
I do not think this is good public policy and will reverberate in our economy for some time to come. One common misconception is the debate about the CPSIA is that the current furor relates simply to February 10, the notorious “National Bankruptcy Day”. Actually, I think that’s just the beginning of the misery. While the frictional transition issues brought upon us by the September 12 legal opinion of the CSPC General Counsel will eventually pass, the costs from testing will soon begin to mount. After that, the monumental, suffocating and expensive chore of lot markings will kick in to do their economic damage, too. These elements of the CPSIA will cause many small decisions to be made. This letter sets out one of the change mechanism. Imagine decisions of this nature, times a million or ten, and then you may begin to see the true negative impact of the new law.
I need to note that this law is supposed to be about SAFETY. The above discussion notably has nothing to do with safety. Why? Because the misery caused by the CPSIA has never had anything to do with safety. No one can rationally argue that the enormous spectrum of affected products and industries have a long record of personal injuries caused by lead. There is simply so such data available. It is therefore no great leap to grasp the enormity of the economic calamity – we are going to severely distort our economic decisions because of legally-mandated waste of precious capital and suffer major losses all in the name of safety, although no one can link these activities with any actual safety risk. Theoretical safety risks are not worth the destruction of countless markets.
I call on Congress to take immediate steps to substantially revise the CPSIA to protect markets while providing reasonable assurance of safety for children.
Sincerely,
Richard Woldenberg
Chairman
Learning Resources, Inc.
Sent: Tuesday, January 13, 2009 8:48 PM
To: 'Christian.Fjeld@mail.house.gov'; 'robin.appleberry@mail.house.gov'
Cc: 'brian.mccullough@mail.house.gov'; 'shannon.weinberg@mail.house.gov'; 'william.carty@mail.house.gov'; 'mjg@brown-gidding.com'; Etienne Veber; 'challengeandfun@gmail.com'; 'kathleen@fashion-incubator.com'; 'Stephen Lamar (slamar@apparelandfootwear.org)'; 'Nancy Nord (nnord@cpsc.gov)'; 'Joe Martyak (jmartyak@cpsc.gov)'; 'Mary Toro (MToro@cpsc.gov)'; 'tmoore@cpsc.gov'; 'Patrick Magnuson (patrick.magnuson@mail.house.gov)'; 'Carter Keithley (ckeithley@toy-tia.org)'; 'Rick Locker (fblocker@LockerLaw.com)'; 'Desmond, Edward'; 'David Callet (calletd@gtlaw.com)'; 'ravitz.georgia@arentfox.com'; Dennis Goldman; 'Pamela Gilbert (pamelag@cuneolaw.com)'; 'Robert Adler'; 'Dan Marshall (dan@peapods.com)'; 'erik.lieberman@mail.house.gov'; 'cfalvey@cpsc.gov'; Judy Bailey (judith.bailey@mail.house.gov); adele@narts.org; kmchugh@astratoy.org
Subject: CPSIA - The Misconception of a Marketing Intent-driven Law
The CPSIA presents puzzles for those intent on complying with its terms. I mentioned one perplexing consequence of the CPSIA in my letter entitled “CPSIA Problems Seem Endless” dated January 12, namely that the rules for total lead can apply differently for a manufacturer and its dealer for the VERY SAME PRODUCT. In that letter, I noted that an industrial product would not subject the manufacturer to CPSIA lead standards for good reason, as the product is not intended for children 12 years of age or younger. However, if the manufacturer sells the product to a dealer who puts it in a catalog that he then mails to schools, the dealer becomes subject to the total lead rules. The common understanding of the CPSIA rule defining a Children’s Product depends entirely on intent, in other words, what is in your heart and in your business plan when you offer the product for sale. The nature of the product does not govern the application of the new lead standards. In this particularly case, since the manufacturer is objectively free of testing obligations and the dealer is objectively subject to the testing standards, the law creates an immediate conflict in the supply chain. Since it is likely that the dealer sells only a small volume of the distributed product (and therefore cannot afford to test the product profitably) and because the manufacturer will lose very little business by refusing to test the product, this industrial product will be dropped from the school catalog. There is no information here to suggest that the product was not safe by any definition. We’ll never know, because no one will test it, and commerce in this item will stop in the school market.
These small stories are meaningful, especially when viewed in the aggregate. These battles in the marketplace are a direct result of the disruptive effect of a poorly designed rule. The definition of Children’s Product should be objective, so that all sellers of the same product are subject to the same rule. The principal reason for this change is that an intent-based law creates too much confusion and dislocation. Either a product is for children or it’s not, and what you think when you sell it should be irrelevant. If intent is essential to the definition, the result will be a smaller economy or a CPSC that will never cease issuing rulings. The CPSC, by the way, has had objective rules in place for many years governing age grading. Age grading is essentially a tool for deciding if something is a product intended for children. The confusing addition of the overly-broad definition of Children’s Product makes the rule on age grading harder to comprehend, and will create lasting confusion among companies attempting to sort out how to comply with law.
I do not think this is good public policy and will reverberate in our economy for some time to come. One common misconception is the debate about the CPSIA is that the current furor relates simply to February 10, the notorious “National Bankruptcy Day”. Actually, I think that’s just the beginning of the misery. While the frictional transition issues brought upon us by the September 12 legal opinion of the CSPC General Counsel will eventually pass, the costs from testing will soon begin to mount. After that, the monumental, suffocating and expensive chore of lot markings will kick in to do their economic damage, too. These elements of the CPSIA will cause many small decisions to be made. This letter sets out one of the change mechanism. Imagine decisions of this nature, times a million or ten, and then you may begin to see the true negative impact of the new law.
I need to note that this law is supposed to be about SAFETY. The above discussion notably has nothing to do with safety. Why? Because the misery caused by the CPSIA has never had anything to do with safety. No one can rationally argue that the enormous spectrum of affected products and industries have a long record of personal injuries caused by lead. There is simply so such data available. It is therefore no great leap to grasp the enormity of the economic calamity – we are going to severely distort our economic decisions because of legally-mandated waste of precious capital and suffer major losses all in the name of safety, although no one can link these activities with any actual safety risk. Theoretical safety risks are not worth the destruction of countless markets.
I call on Congress to take immediate steps to substantially revise the CPSIA to protect markets while providing reasonable assurance of safety for children.
Sincerely,
Richard Woldenberg
Chairman
Learning Resources, Inc.
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