CPSIA - Participate in the AAFA Email Campaign to AMEND THE CPSIA!

The American Apparel and Footwear Association sent out the following request to the thousands of affected companies and individuals concerned about Congress' inaction on the CPSIA.  Please show your support by sending in an email in support of ECADA (the pending CPSIA Amendment in the House Energy and Commerce Committee).

Thank you!


"Hi.  At some point over the past few years, you have contacted Congress to urge relief from the crushing burdens of the Consumer Product Safety Improvement Act (CPSIA) using the legislative action center that we host on the AAFA website. Your advocacy has proved critical in raising Congressional awareness of the many problems that have characterized the CPSIA so far.

But we still need your help. Urgently!

A key House committee is currently considering amendments to the CPSIA that would provide relief in a number of areas, including testing, inaccessibility for phthalates, very small business, used products, ATVs and bikes, and retroactive application of the lead rules.

This amendment (H.R. 1939) will make our product safety system operate smarter while making sure that small businesses and other product safety stakeholders don’t get smothered in stifling regulations, extraordinary testing costs, and burdensome paperwork. We can’t let serious product safety risks be ignored while we endlessly test safe products and drive companies out of the children’s product business.

This amendment will not be considered unless Members of Congress hear from their constituents – you and your neighbors – demanding immediate action.

Help us bring commonsense back to our product safety rules.

Time for action is now. Your voice matters.

Please take a moment and send an email to your elected House and Senate members urging them to swiftly pass an amendment to the CPSIA. Please urge your family and friends to contact Congress.

Click here to make your voice heard and help get action on this important issue.

Thanks.

Steve Lamar
Executive Vice President
American Apparel and Footwear Association


Please see below some important resources:

- Copy of NAM ad that appeared in the Hill Newspaper urging action

- Op-Ed by Product Safety Expert Eric Stone describing the CPSIA Amendment

- Editorial from The Wall Street Journal

- Read ECADA"

CPSIA - American Job Creators (Remember When We Did That?)

The House Majority Leader wants to know how the CPSC and the CPSIA are affecting your business.  They have a website set up for you to download everything you know about the misconceived CPSIA and resulting three year nightmare.  The first agency listed on the web page is the CPSC.

Have some fun with this!  Feel free to post your insights here, too.

CPSIA - NSSEA Calls for Letters on ECADA

The NSSEA (National School Supply & Equipment Association) is calling for letters in support of the pending CPSIA Amendment legislation (ECADA).  Please send the below letters BY FAX to your House Representative and to members of the House Committee on Energy and Commerce.  You can get the fax numbers off each Representative's website.  The mark-up may happen as soon as Monday June 20th (but is not scheduled yet to my knowledge).

Now's the time to stand up and be counted!!!  There are two forms of letter below (Manufacturer and Dealer/Retailer).  Please modify as appropriate.


Letter from Manufacturers:

Dear XXXXXX:

I am writing as a constituent and concerned member of the National School Supply & Equipment Association (NSSEA) to express my support for HR 1939, the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). We urge you to support this important bill that fixes problems created by the Consumer Product Safety Improvement Act (CPSIA) while maintaining the core provisions of this law that ensures the safety of consumers.

[INSERT INFORMATION ABOUT YOUR BUSINESS, INCLUDING NUMBER OF EMPLOYEES]

The safety of our products and the safety of our customers are our top priorities. Unfortunately, we have encountered many problems in trying to comply with the well intentioned but overly burdensome CPSIA. We have been forced to spend thousands of dollars for unnecessary lead and phthalate testing and continue to deal with compliance programs that change multiple times to meet constantly changing rules. ECADA provides common sense reform to sections of CPSIA which have burdened our industry during these challenging economic times. Given your strong record as a friend of small business and manufacturers, I hope that I can count on your support for this bill.

A costly new rule mandating a burdensome, unreasonable testing regime, the lifting of the stay on third party testing for lead substrates, and the retroactive application of a tighter lead standard despite overwhelming evidence showing that this new limit is not technologically feasible are just several challenges that my company will face this year if the reforms in ECADA are not approved by Congress soon. ECADA reduces the most excessive regulatory burdens created by CPSIA while maintaining protection for consumers. The bill enhances the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and prioritize testing based on cost-benefit analysis, and improves the CPSC’s public database by ensuring more accurate information.

As manufacturers and small business struggle to recover from the worst recession in decades, it is vital that government does not impose costly and unnecessary regulations that have no positive impact and hinder the fragile recovery. I urge you to vote for ECADA to ensure that companies like mine can continue to provide quality products and services that are so important to our children's education.

Sincerely,

XXXXXXXX

 
Letter from Dealers/Retailers:
 
Dear XXXXXX:
 
I am writing as a constituent and concerned member of the National School Supply & Equipment Association (NSSEA) to express my support for HR 1939, the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). We urge you to support this important bill that fixes problems created by the Consumer Product Safety Improvement Act (CPSIA) while maintaining the core provisions of this law that ensures the safety of consumers.

[INSERT INFORMATION ABOUT YOUR BUSINESS, INCLUDING NUMBER OF EMPLOYEES]

The safety of our products and the safety of our customers are our top priorities. Unfortunately, we have encountered many problems in trying to comply with the well intentioned but overly burdensome CPSIA. As a distributor, we fear that the range of products offered by our suppliers will continue to narrow due to the costs manufacturers incur for unnecessary lead and phthalate testing. In turn, the needs of American students will be unmet, including those children with disabilities and special learning needs, because fewer specialized products will be available to our customers.

CPSIA has caused considerable confusion in the marketplace due to the constantly changing rules and regulations associated with the law. ECADA reduces the most excessive regulatory burdens created by CPSIA while maintaining protection for consumers. The bill provides common sense reform to sections of CPSIA which have burdened our industry during these challenging economic times. The bill enhances the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and prioritize testing based on cost-benefit analysis, and improves the CPSC’s public database by ensuring more accurate information.

Given your strong record as a friend of small business and manufacturing, I hope that I can count on your support for this bill. As small business struggles to recover from the worst recession in decades, it is vital that government does not impose costly and unnecessary regulations that have no positive impact and hinder the fragile recovery. I urge you to vote for ECADA to ensure that companies like mine can continue to provide quality products and services that are so important to our children's education.

Sincerely,

XXXXXXXX

CPSIA - Business Roundtable Torches Obama for Anti-Business Policies

In a scorching 54-page letter to departing OMB Chief Peter Orszag, the Business Roundtable and Business Council (via Ivan Seidenberg, CEO Verizon Communications, and James Owens, CEO Caterpillar Inc.) outlined the many problems caused by this Administration for the business community. I am pleased to say that the CPSIA made a cameo in this letter (see below), likewise TSCA reform. I am sure Mr. Waxman cares not, but it's nice to know that our issues rank right up there.

The bubbling and surging frustration and despair I feel over the two-year CPSIA torture chamber is echoed by prominent business leaders in this letter. Business people are beyond exasperated after 18 months of Obama and his left wing allies who have never had to make a payroll. As I have said countless times now, our company has a sterling record for safety and the children's product industry itself has an almost unassailable record for protecting children from injury from lead and from phthalates (according to the CPSC's recall data itself).

How did we turn into public enemy number one? We are left to twist in the wind, and our regulators seemingly could give a damn. I have had enough . . . and that puts it mildly.

Here is the letter. You can read the report by clicking on the link above, it's rather interesting. I have also reproduced the verbiage on TSCA and the CPSIA below the letter.

June 21, 2010

The Honorable Peter R. Orszag
Director
The Office of Management and Budget
725 17th Street, NW
Washington, DC 20503

Dear Director Orszag:

As a follow‐up to your request to both Business Roundtable and The Business Council for examples of pending legislation and regulations that have a dampening effect on economic growth and job creation, we surveyed our membership to get their views. Attached are an Executive Summary and detailed description of what they see as government initiatives that will cause slower rather than faster growth.

Obviously the list is long, but we believe the cumulative effect of these proposals will help defeat the objectives we all share – reducing unemployment, improving the competitiveness of
U.S. companies, and creating an environment that fosters long‐term economic growth.

As business leaders we are increasingly concerned that the political expediencies of the short‐term harm our ability to partner with government to create policies that foster growth. Now more than ever we need to work as businesses and as government to make the United States a place where we can attract the investment that is needed if we are to remain the strongest economy in the world. [Emphasis added]

We would be pleased to meet with you to discuss any and all of these issues.

Sincerely,

Ivan G. Seidenberg
Chairman & CEO
Verizon Communications
Chairman, Business Roundtable

James W. Owens
Chairman & CEO
Caterpillar Inc.
Chairman, The Business Council

Excerpts:

CPSIA: "Product Safety: The Consumer Product Safety Improvement Act (CPSIA) and the Consumer Product Safety Commission’s (CPSC) implementing regulations are more expansive than necessary to protect consumers and impose unjustifiable regulatory and economic burdens on the regulated industry." (page 42)

TSCA: "TSCA Modernization: Compliance with the proposed safety standard appears to be nearly impossible and will result in a flood of litigation. It will gridlock American industry, ultimately stifling investment and costing valuable American jobs. Under the complex regulatory framework being proposed, EPA will be unable to meet required deadlines which will effectively bar new products from the market. Under these proposals, foreign manufacturers will have a distinct competitive advantage to produce new chemical solutions." (page 12)

CPSIA - HTA Letter Questions Imperfect Waxman Amendment (CPSEA)

[Emphasis added. Actual Letter can be viewed here.]

May 12, 2010

To:

The Honorable Bobby Rush
Chairman, Subcommittee on Commerce, Trade and Consumer Protection

The Honorable Ed Whitfield
Ranking Member, Subcommittee on Commerce, Trade and Consumer Protection

The Honorable Henry Waxman
Chairman, Committee on Energy & Commerce

The Honorable Joe Barton
Ranking Member, Committee on Energy & Commerce

Re: The Consumer Product Safety Enhancement Act (CPSEA)


To the Leadership of the House Commerce Committee:

Thank you again for the opportunity to testify before your committee and for your continued attention to the needs of our small businesses. We would like to reiterate our position on the CPSEA and the relief we are seeking for our members.

We have previously endorsed the CPSEA because it is the only opportunity currently available to save small batch manufacturers from extinction after February 10, 2011, when the CPSC's stay of enforcement of third party testing requirements expires. Under the CPSIA as it currently stands, many of our members are substantially limiting the products that they offer--some foregoing children’s products altogether--while others are laying off employees or limiting their business growth.

We have stated clearly that the CPSEA can and should be improved to reduce unnecessary regulatory burdens on small businesses without compromising safety. The CPSEA as currently written will likely save some of our member businesses. With improvements, however, you can save almost all of them. For the record, we would like to review the improvements we would like you to consider.

First and foremost, we would like the CPSEA to clearly state that small batch manufacturers are exempt from third party testing requirements. While report language to that affect would be helpful, a more explicit exemption within the language of the bill itself would provide more immediate and substantial relief. You can accomplish this by allowing:

* the use of XRF testing as an alternative testing method for lead in paint and lead in substrate

* alternative testing methods for products intended for use in classrooms or for children ages 7-12

* EN-71 testing as an alternative testing method

* CPSC rulemaking to allow for alternative testing methods based on risk analysis

* exemptions for small batch toymakers from ASTM F-963 testing

This language should be in the bill itself, not just in the report language. In the intervening days since our initial endorsement of the CPSEA, we have heard conflicting answers from several different CPSC commissioners as to the commission's willingness or ability to provide affordable alternative testing methods for small batch manufacturers. If this bill is truly meant to benefit small batch manufacturers, it must be more clear and explicit in the exemptions it provides.

Second, we wish to reiterate our belief that alternative testing methods should be available to all companies. The Small Business Administration defines toy and clothing manufacturers with less than 500 employees as small businesses, which is far in excess of the CPSEA's $1 million limit. If a revenue limit is used, it should be based only on income generated by the manufacture or importation of children's products without including other unrelated business income. A manufacturer's ability to pay for testing any given product is a function of the revenue it generates from that particular product, not the overall size of the company.

Third, we stated publicly during the April 29 hearing that the functional purpose exemption for products exceeding 300ppm/100ppm lead will not benefit our members because of the narrow scope of the exemption and the cost required to obtain it. The CPSC should instead be given authority to make exemptions to specific materials or product categories based on risk analysis. For example, the commission should have the power to exempt brass as a material and children's saddles or microscopes as a product category. This is the only way in which small businesses would be able to take advantage of the functional purpose exemption.

Fourth, we believe that small batch manufacturers should be entirely exempted from mandatory labeling requirements.

Finally, we hope to settle any confusion regarding our intent in endorsing the CPSEA. We endorsed it as our only available alternative. We truly believe that many of our members will be forced out of business after February 10, 2011 without meaningful, clear reform provided by your committee. We believe that the CPSEA can and should be improved to better target risk and provide more comprehensive relief for our members, who were never the source of unsafe products in the first place.

We remain hopeful that the democratic process can prevail and that a meaningful and bipartisan reform of the CPSIA can be enacted. We urge members of the committee to mark up the CPSEA and allow open discussion within the product safety subcommittee. The CPSIA was a bipartisan bill—its reform should be, too.

You hold the livelihoods of hundreds of small businesses in your hands. Please, make this work.

On behalf of the 435 small business members of the Handmade Toy Alliance, we thank you again for your attention to this important issue.

Respectfully,


The Handmade Toy Alliance

savehandmadetoys@gmail.com
http://www.handmadetoyalliance.org/

Board members:

Cecilia Leibovitz, Craftsbury Kids, VT
Dan Marshall, Peapods Natural Toys, MN
Jill Chuckas, Crafty Baby, CT
Mary Newell, Terrapin Toys, OR
Jolie Fay, Skipping Hippos, OR
Marianne Mullen, Polkadotpatch, VT
Rob Wilson, Challenge & Fun, MA
Randy Hertzler, euroSource, PA
Kate Glynn, A Child's Garden, MA

CPSIA - Dingell Links

Barb from OH asked for links to pertinent past blogposts relating to John Dingell. Here are a few:

• (September 18, 2009) CPSIA - Dingell v. Tenenbaum (9-10-09 Hearing)
• (March 6, 2009) CPSIA - Important Letter to CPSC by Rep. John Dingell

There were quite a few public replies to Mr. Dingell in March. I published my replies on March 9 and March 13.

CPSIA - Sample Letter to the House re Waxman Amendment

This is the letter I am sending:

"Vote NO on the pending Consumer Product Safety Enhancement Act of 2010 (CPSEA)! This legislation fails to address the critical issues confronting small businesses and children's product manufacturers under the CPSIA. Without genuine reform, implementation of the CPSIA will choke off commerce in this marketplace, especially for beleagured small businesses.

True relief will only come if the CPSIA is amended to restore to the CPSC Commission true authority for risk assessment. In addition, a reduced age limit under the law and more focused (less extensive) testing is necessary to restore balance to the market. A full hearing featuring testimony from affected regulated companies will set the record straight on the pain points of this two-year-old landmark legislation.

With out-of-control CPSC rulemaking now totalling almost 2500 pages and growing seemingly every day, the CPSIA implementation has now surpassed every company's ability to process and master. The law has become incomprehensible as new rules piled upon old rules are causing gridlock and widespread economic loss. Without decisive Congressional action to restore common sense to this unrelenting crisis, small businesses and big businesses alike will have to exit the children's market permanently.

This loss of supply will greatly harm consumers (including schools and teachers) and will cost thousands of jobs.

Save the children's product market - vote NO on the CPSEA and demand true reform to fix the CPSIA once and for all."

Time to Make Your Voices Heard!

I have perhaps the most important request of you readers since I started blogging on the CPSIA 18 months ago.

Tomorrow at 2pm Eastern time, the House Energy and Commerce Committee Committee will be marking up Henry Waxman’s “fix” to the CPSIA. In my opinion, this is no fix at all. I sent the e-mail below out earlier today that details why I think this “deal” should be rejected.

Now is the time for your voices to be heard. I encourage you to e-mail members of the Committee before 2pm tomorrow to voice your concerns about the proposed “fix” and demand that the Committee begin drafting a legislative solution that truly addresses the problems with the CPSIA.

You can find e-mail addresses for the Committee at here. Click the name of the Member of Congress, then click “contact” and that will take you to a form where you can submit an e-mail. You can choose one Committee member or all of them – it’s your choice but I ask you to send at least one e-mail by 2pm tomorrow. If you happen to live in the Congressional District of a Committee Member, even better.

If we don’t speak up now, we have only ourselves to blame.

My letter from earlier today:

Dear Friend,

We are at a critical juncture right now as the House Committee on Energy and Commerce is in the late stages of considering an amendment to the CPSIA. The proposed legislation has been analyzed in my blog over the past few weeks, but is now about to move to the subcommittee “mark-up” phase. Assuming it proceeds past mark-up, the bill will be put to a vote at the committee and then by the House, and submitted to the Senate for its consideration. This could happen rather quickly given its sponsorship by Henry Waxman. Notwithstanding his desires, the Republicans are not yet on board with this “bipartisan” bill and Senate cooperation is another unknown.

I wanted you to see my latest blogpost on this amendment and hope you will contact your representatives in Washington to express your concern. The new Waxman Amendment does nothing to fix the fundamental issues in the CPSIA and continues to stack the deck against small business in favor of big business and certain favored industries. If this legislation proceeds in its present form, Congress is likely to assert that they have “listened” to our complaints and addressed them, washing their hands of the matter. With almost 2500 pages of rules already promulgated by the CPSC to implement the CPSIA, and more spewing out on a daily basis, this law is not only incomprehensible to most businesses but completely unmanageable as well. Based on testimony by Chairman Inez Tenenbaum at last week’s Senate Appropriations Committee meeting, it seems clear that the CPSC is transitioning to an enforcement posture (from its implementation phase). Therefore, you can safely assume that you will held responsible in a matter of months by a CPSC that has little sympathy for your problems complying with their blizzard of rules. [If you doubt this, read my blogposts about penalties.]

The time to act is NOW. We must block this amendment.

Richard Woldenberg
Chairman
Alliance for Children’s Product Safety

CPSIA - Report on the CPSC's Recommended Changes to the Law

There has been an eery silence emanating from Bethesda over the upcoming report due to Congress on January 15 listing needed changes to the CPSIA. As you know, last week the Commission voted 2-2 to NOT discuss their report in front of you. So we'll get to see it when it's final, done and cannot be changed. The People Have Spoken!

Late last week, I published my recommended changes to the law and my list of other changes to process and procedure at the CPSC that I believe are necessary to restore rationality to the safety law governing children's product safety. It is important that you also express your views on this topic to the Commissioners. There isn't MUCH time left to influence the Commissioners but it's worth a try. You are welcome to use my list for inspiration or as a shortcut.

The Commissioners' email addresses are:

Inez Tenenbaum: itenenbaum@cpsc.gov
Robert Adler: radler@cpsc.gov
Thomas Moore: tmoore@cpsc.gov
Nancy Nord: nnord@cpsc.gov
Anne Northup: Commissioner_Northup@cpsc.gov

Thank you!

CPSIA - Anne Northup Calls for Your Ideas

In her blogpost of January 6, Commissioner Anne Northup asks that you send her your ideas on how to change the CPSIA. Her email address is Commissioner_Northup@cpsc.gov.

She, like Nancy Nord, offered her thoughts on the unfortunate snuffing of a five Commissioner discussion of these issues in her blog from this morning. I urge you to read it. These blogposts are apparently the venue that is being left to Nord and Northup to talk to you. As I have noted repeatedly, Commissioner Adler, the self-appointed Prince of "Darkness", has stated that we all "know" the views of the Commissioners through their blogs. That's all the Sunshine he has left for you.

So you better read their blogs.

Open government, you gotta love it. Shame we, the general public, aren't in charge anymore . . . .

CPSIA - Tracking Labels Answer Received Today

The CPSC answered my letter of September 18 regarding tracking labels today. In a nutshell, my question was about how small businesses are supposed to ascertain "cohort information" from fungible products if we are permitted to not use lot markings. The answer to that question was not clear (to me) from the Tracking Labels Guidance.

In today's response, the CPSC seems to indicate more flexibility than I had read into the Guidance. Tony Cook of the Office of General Counsel states: "Your letter suggests that the manufacturer lacks flexibility regarding information that must be 'ascertainable'. As with the 'marking' requirement, the manufacturer's reasonable judgment and consideration of the manufacturer's particular circumstances, are guiding issues." He carries on helpfully: "Without such an approach, an absolute requirement to have ascertainable all required information would in effect swallow the Commission's considered course with respect to marking." This is the conflict that motivated my concern.

On the other hand, Mr. Cook states ". . . what can be marked and what can be ascertainable are separate questions". This is the rub, of course. This means that even if you can't mark the item, you might still have to be able to ascertain the cohort information. How do you do that? Well, you can't.

It all boils down to what is considered "reasonable judgment". In fact, I have never found this a challenging standard to meet in our business but that was before there were huge penalties and possibly jail time to consider.

In an environment where the regulators want us to exercise sound judgment, there needs to be some recognition that the incentive to take the risk of exercising judgment only makes sense when that judgment is PROTECTED. No one wants to risk huge fines for doing their job (or let their teammates incur this risk). Thus, I think the CPSC needs to look at the question about ascertainability again. The CPSC needs to say flat out that it will respect the judgment of manufacturers on how they determine which information, if any, can be ascertainable, as long as the decision on marking was deliberate, consistent and made on a good faith basis.

In the case of our business, tracking labels serve no particular purpose except to slow us down and waste our money. We have recalled 130 pieces since 1984 (out of an estimated one billion shipped, all units believed recovered) so the risk to consumers, at least thus far, seems controlled. I would like the authority to decide how much to spend on tracking labels and information retention/accessibility, based on my knowledge of our products, our market, our track record and our legal obligations. Then, if we exercise good faith and are reasonable and consistent in our approach to markings and cohort information, the CPSC should respect our decisions. thus, a failure to mark or ascertain would not be held against us unless our balancing of the equities is demonstrated to be unreasonable.

None of this would be necessary except for the ridiculous penalties and fines possible under the CPSIA. The indiscriminate manner of penalizing under the law makes minor issues (even inconsequential errors) into potentially serious problems. In addition, given that the CPSC recent practice of doling out penalties for long ago settled disputes, the long tail of 20-20 hindsight makes this dilemma particularly uncomfortable.

I appreciate the CPSC's effort in replying to me, and look forward to working with them to bring more clarity to this very important point.

CPSIA - Letter to CPSC Re Continuation of Testing and Certification Stay

Dear Chairman Tenenbaum, Commissioners Adler, Moore, Nord and Northup:

I am writing to strongly urge the Commission to vote to extend the CPSIA testing and certification stay (the “Stay”) originally implemented on January 30, 2009 and due to expire on February 10, 2010. The Stay should be continued for at least one year PAST issuance of final implementing rules and regulations relating to testing frequency, sampling, component testing, re-testing requirements, testing standards for phthalates and ASTM F963, enforcement policies and certification of sufficient laboratories to handle the market’s volume requirements.

The Stay has served its purpose well. When originally adopted in January, the Commission intended to create a pause to allow the issuance of implementing rules and further permit market adjustment to those new rules. The Stay was needed to avoid confusion and chaos in the marketplace. Unfortunately, the task of issuing implementing rules to fully realize the goals of the Stay has not been completed. The incomplete state of the full range of testing rules and related activities (like test lab certification) has prevented full implementation of testing and certification in the marketplace. While many companies are testing aggressively, as the much-reduced toy recall rates attest, the market is simply not ready for full implementation. No one knows what full implementation even means.

Many critical tasks remain incomplete:

• The "15 Month Rule" was not issued when due on November 14th. The stakeholder feedback from this week’s workshop on the “15 Month Rule” has not been received, much less reviewed or digested.
• Comments on the "15 Month Rule" are due on January 11. These comments have not received yet.
• The CPSC has not even solicited comments on the lifting of the Stay from stakeholders.
• Component testing rules have not been promulgated, despite calls by Commissioner Nord in her January 30th Statement on the Stay.
• The CPSC has not issued its phthalates test standard.
• The CPSC has not certified any testing laboratories for the phthalates test standard yet.
  The CPSC has not certified labs for ASTM F963 testing yet.
• The CPSC admits that it has not certified enough labs to handle a full burden of testing for many product classes or safety tests.
• The CPSC acknowledges that fixed testing costs are creating a serious burden on small businesses.
• The CPSC has not defined "children's product", "toy", "play" or "childcare article" yet.
• The CPSC acknowledges that many companies have not acted to fill market gaps like component testing because the rules are not final (or even drafted in this case).
• The CPSC is on its third enforcement policy on lead and lead-in-paint.

Other serious issues relate to the practical impact of the rules on the marketplace. First, the current rules are complex and disorganized, having been released in several places and formats. Even video testimony includes unique statements of agency policy. Some “rules” contradict other rules. Many important industry questions posed to the CPSC remain unanswered months or more than a year later. The task of mastering the vast array of FAQs, letter rulings, rules, exemption requests and so on baffles even the largest companies. Notably, Mattel officials complained of this very problem in a recent meeting with Commissioner Adler and speculated on the practical impossibility of compliance by small companies. The timing of the lifting of the Stay in February will clearly affect small businesses adversely.

Second, manufacturers and their supply chains need time to adjust to new rules. Many of these new rules are not even drafted yet, much less ready to be issued in final form after public comment. This delay is not the fault of the manufacturing community . . . but the consequences could be quite significant for manufacturers if the Stay is lifted suddenly. Most legislative programs that involve a significant change in process or requirements include time for adjustment by manufacturers. It is not unusual for supply chains to receive two or even three years to shift to the new requirements. For instance, U.S. Customs started working on its new “10+2” program in June 2004, issued final rules in November 2008, has been running seminars nationwide for more than a year, and will only fully implement 14 months later in late January 2010 (compliance date). A reasonable lifting of the Stay requires at least a 12 month lead-time from implementation of the last component of the testing rules. Furthermore, to ensure successful implementation, the agency will need to make considerable investments in supply chain education and training during that 12 month lead-time. The agency must also make sure that the final rules are clear, simplified and understandable. Anything less will expose most businesses to the constant risk of conflict with 51 different regulators – regardless of their corporate efforts to comply.

Some suggestions have been made to lift the Stay in piecemeal fashion. We strongly urge the Commission to lift the Stay in the “right way” all at once after offering the regulated community a clean, complete, coherent package of rules, regulations and certifications sufficient to put manufacturers in an adequate position to successfully and efficiently comply with the new rules. Rolling out testing rules one-by-one with a similar ramp-up of compliance will only ensure that no one understands the rules for as long as possible.

The confusion engendered by a piecemeal implementation of the new testing rules will not only constitute a form of regulatory water torture, but will certainly cause regular conflicts between (a) the CPSC and its regulated community, (b) consumer groups, regulators and regulated companies, (c) State Attorneys General and regulated companies, and (d) regulated companies and their dealers/retailers. By lifting the Stay under these uncertain conditions, the Commission would be risking complete market chaos. The misery suffered by regulated companies and industries would be matched by equal misery at the CPSC. Under these circumstances, the agency would face a steady stream of crises caused by testing controversies and confusion without end. I fear that a drip-drip-drip implementation of the testing and certification requirements will render the agency crippled with overwork, inefficiencies and wear-and-tear.

These poor outcomes are avoidable by dynamic Commission action to delay the lifting of the Stay.

Manufacturers of children’s products are good law-abiding citizens who want to follow the law. Until the CPSIA rules are clearly written and implemented, following the law is an impossible task. Please take bold action to support the lawful activities of the regulated community by promptly continuing the Stay for one year past the issuance of final implementing rules and regulations relating to testing frequency, sampling, component testing, re-testing requirements, testing standards for phthalates and ASTM F963, enforcement policies and certification of sufficient laboratories to handle the market’s volume requirements.

Thank you for consideration of my views on this important topic.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.

Chairman
Alliance for Children’s Product Safety

CPSIA - Send Me Your Notes about Disappearing Products

We need some data about your sense of regret and loss over the disappearance of favorite products. We are interested in everyone's feelings, so feel free to share if you are a consumer, a teacher, a school administrator, a parent, a store owner, a distributor, whatever. We want to know about CPSIA-related product disappearances. Are you finding it harder to find that educational product you know and love or need, that t-shirt your daughter wants, that piece of jewelry you wanted to buy for a birthday, that special hair bow you need to make your baby sparkle? Have you lost suppliers, supply items, product lines you depend on? What are the casualties brought on by the CPSIA?

Please send me your notes. You can leave them as comments to this post, or email them to me at rwoldenberg@learningresources.com or fax them to me at 847-281-1730. Please provide your name and address, as well as a return email address.

We need to make ourselves heard. Please ask friends, family and associates to answer this call. Thank you!

CPSC - Rep. Michael Burgess Bashes the CPSIA

Rep. Michael Burgess (R-TX26), a practicing physcian for nearly three decades, wrote a three-page letter to Reps. Henry Waxman and Bobby Rush. [Dr. Burgess was also a speaker at our April 1 Rally.]

The letter certainly makes interesting reading. Here's a couple snippets. Please remember that Rep. Burgess is a medical doctor, presumably able to assess the scientific need for the strong restrictions in the law.

1. "I voted for this bill. At the time, I was compelled by the arguments we should work diligently to bring the Consumer Product Safety Commission into the 21st Century. . . . Sadly, this intent has ushered in a virtual avalanche of unintended consequences. . . . During a time of recession and staggering job loss, [businesses large and small] are suffering while the CPSC is moving at a staggering snail's pace to implement the 42 required actions under this law. This has caused me to regret my vote for the nebulous language of this bill. In our zeal to protect children from lead in children's toy products, we have endangered an entire industry." [Emphasis added]

2. "Furthermore, Ms. Nord stated numerous times that her hands were tied at the CPSC due to the language of the CPSIA. This complaint is one that, regardless of whether it is true or not, needs to be addressed. The CPSC should not have to spend all their time fielding exclusion requests from the application of the CPSIA. The CPSC should be implementing, enforcing and punishing for lead in toy products. Not for clothes, not for shoes, not for books, not for wooden jewelry and not for all-terrain vehicles."

3. "[At last week's hearing, we] should have had third party testers who could explain to us . . . how they are going to test this multi-billion dollars industry every minute, of every hour, of every day, of every year until Congress addresses this issue. We cannot say we are addressing the problems as a result of our own actions with having a hearing with one panelist." [Emphasis added]

Thank you, Rep. Burgess. You speak the truth. I note you copied the White House on your letter. I hope someone is listening. . . .

CPSIA - Letter to CPSC re Tracking Labels Guidance 9-18-09

September 18, 2009

VIA FEDERAL EXPRESS

Todd Stevenson
Director, Office of the Secretary
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814

Re: Section 103 Tracking Labels Guidance

Dear Mr. Stevenson:

I am writing on behalf of the Alliance for Children’s Product Safety, an organization comprised of small businesses in many industries impacted by the Consumer Product Safety Improvement Act (CPSIA). I request your prompt consideration of an urgent matter regarding the impact of Section 103 tracking labels guidance issued on July 21 (the “Guidance”) on small businesses in America.

By way of background, I would like to draw your attention to the fact that I have expended considerable effort to help the agency avoid mishap in the implementation of the CPSIA’s troubling tracking labels provision in recent months. I have testified before the CPSC on tracking labels (May 12 hearing, second panel), wrote a comment letter on Section 103, sent a letter to Rep. John Dingell in part addressing tracking labels and posted no less than 38 blog entries related to tracking labels, including a comprehensive list of “unanswered questions” about the Guidance. To date, none of my “unanswered questions” have been addressed by the agency in any form as far as I know.

The Guidance was originally heralded as a document sensitive to the interests of small businesses. Some terms seemed to offer relief to small lot manufacturers who did not already mark products with lot information. This regulatory approach was forecast by Commissioner Moore in his May 13 statement explaining his vote on the NAM tracking labels stay petition, when he noted that tracking labels implementation would be “a learning process for all of us and not an excuse to punish an unwitting mistake.”

Unfortunately, the Guidance also specified that all of the information in Section 103 needed to be “ascertainable” by both the manufacturer and consumers. This has been interpreted to mean that manufacturers must be able to produce “detailed production information, including the means to distinguish products made from different factories, made with different components, at different times” for any product pulled from any store shelf anywhere and at any time. The Commission made it clear that this is a serious legal obligation. As Mr. Moore wrote on July 20, “those who fail to keep the information required by the tracking label provision . . . will not find a very sympathetic ear at the Commission.”

The issue of what “ascertainable” means gets to the heart of the issue that Mr. Moore highlighted. It is also at the heart of the tracking labels dilemma for small businesses. In my “unanswered questions” blogpost on August 14, I posed the following question:

The Guidance states: “The question of what should be ascertainable is a different question than whether that specific information can be marked on the product or packaging.” [Emphasis added.] Thus, it appears that the CPSC will not permit ANY manufacturers to sell ANY children’s product for which the specified Section 103 information is not “ascertainable”. In other words, if a consumer calls up to inquire about the Section 103 information for any unit of a children’s product made on or after August 14, regardless of whether made by a small lot manufacturer, that information must be available – or less. Correct?

Elsewhere in the Guidance, the CPSC advises that small lot manufacturers need not create a lot marking system if one does not currently exist. So, essentially, the rules require that co-hort information be “ascertainable” on items without lot markings. This is, for all practical purposes, impossible. An unmarked item is fungible with all other similar unmarked items. If small businesses are not required to mark by lot, then it will be impossible to distinguish products by lot.

This is a massive problem for small businesses. It is not solvable as far as I can tell. The Guidance says on one hand that we do not need to mark by lot, and on the other hand, says we will be exposed to civil and criminal penalties if we cannot “ascertain” lot information. This is faulty “guidance” at a minimum. It is tantamount to requiring universal marking of products by lot – although the Guidance states the exact opposite.

Please do not overlook the fact that Section 103 applies to every children’s product sold in this country without exception. It is a common misconception in the market that tracking labels are only required for items subject to the new lead limits or the phthalates ban. Thus, the scale of affected industries and product classes is incomprehensibly large.

As I have testified and written extensively on the issues relating to tracking labels for businesses catering to low volume specialty markets, I will not highlight again the many reasons why this rule is impractical in the extreme. Please consider, however, a very practical business problem. Many specialty items are low-priced and have not been designed optimally for tracking labels. The Guidance recognized the seriousness of this issue for the bulk vending industry, but overlooked it for everyone else. Frankly, the practical issues for items that sell for $0.25 are virtually identical for items that sell for $10. In any event, “ascertaining” co-hort information on any children’s product without a lot marking is basically impossible (without changing every lot in some physical way, a manufacturing “solution” likely to quickly degrade into utter chaos or commercial disaster). It is therefore likely that most products sold into specialty markets will violate the Guidance unless they incorporate permanent lot markings.

Members of the Alliance for Children’s Product Safety are facing a profound disaster as a consequence of this rule. Products are already being dropped for an inability to meet the “ascertainable” rule, particularly under threat of penalties under the CPSIA. No one working for a children’s product manufacturer will risk going to jail over co-hort information; they are much more likely to drop products to avoid the issue entirely. The economic damage will be deep and wide – and will contribute nothing to consumer safety. It is ironic that declining product availability as a result of implementation of Section 103 may lead to fewer recalls, thus giving the misimpression that children are safer. In fact, children will simply go to poorly-stocked schools and enjoy a lower standard of living.

I call on the Commission to review and modify the Guidance to provide real and meaningful relief from the requirement on “ascertainability” for small businesses catering to specialty markets. Your prompt attention to this urgent issue will save jobs, products and industries.

Thank you for your prompt consideration of this important matter.

Sincerely,

Richard Woldenberg
Chairman
Alliance for Children’s Product Safety

cc: Chairman Inez Tenenbaum
Commissioner Robert Adler
Commissioner Thomas Moore
Commissioner Nancy Nord
Commissioner Anne Northrup

CPSIA - My Letter to Inez Tenenbaum (9-17-09)

September 17, 2009

VIA FEDERAL EXPRESS

The Honorable Inez Tenenbaum
Chairman
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814

Re: Safety of Rhinestones and Crystals

Dear Chairman Tenenbaum:

I am writing on behalf of the Alliance for Children’s Product Safety, an organization comprised of small businesses in many industries impacted by the Consumer Product Safety Improvement Act (CPSIA).

Of particular concern to Alliance members is the “unintended consequences” of the CPSIA, namely that many safe products will be explicitly or effectively forced from the market despite sterling safety records, and that many viable and law-abiding businesses will be economically crippled (or worse) by new testing, labeling and other obligations and liabilities under the new law.

We are aware of your recent testimony at a CPSIA oversight hearing conducted by the House Subcommittee on Commerce, Trade and Consumer Protection on September 10, 2009. In your testimony, you expressed concern that swallowing “50 beads” (referring to rhinestones, glass beads or crystals) might lead to measurable change in blood lead levels and would hence be considered “unsafe.” You also indicated that your statement of July 17, 2009 explaining your vote to deny the Section 101(b) exclusion request of the Fashion Jewelry Trade Association and other organizations for such beads was “poorly worded,” and the level of lead in such beads was in fact a cause for concern. You mentioned, in particular, beads with lead levels of 23,000 ppm.

We are puzzled by this testimony and kindly request clarification.

Notably, you wrote in your statement of July 17 that “Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children.” You also stated clearly that risk assessment by the Commission “appears to be in direct conflict with the statutory language [of the CPSIA]” and therefore the agency is foreclosed from considering factors such as “bioavailability of lead, accessibility of the lead to children, foreseeable use and abuse, foreseeable duration of exposure, marketing and life cycle of the product” in any exemption proceeding. We are therefore confused by your testimony that your vote against the exclusion request was actually motivated by a safety concern (risk assessment).

The clarity and consistency of CPSC administration of the CPSIA is a serious issue for businesses attempting to comply with the new law. It is well-known that confusion among the regulated industries has caused market chaos and considerable business losses. The rhinestones decision, followed by your recent Congressional testimony, creates serious new issues that will further confuse those trying to comply with the law.

We request that the Commission provide clarification on your July 17 contention that exemption requests will be made without regard to risk assessment. If risk assessment is not permitted by the CPSIA in such proceedings (as has been consistently stated by you as well as by Commissioners Nord and Moore), we request that the Commission explain the relevance of the safety considerations of swallowing 50 rhinestones on the rhinestones exemption request decision. If your testimony before Congress indicates that risk assessment is now permitted in CPSIA exemption proceedings, please explain the legal basis for this change in statutory interpretation.

We believe that the terms of the CPSIA require that the CPSC deny the exclusion request for rhinestones based solely on the lead levels in the stones; however, we do not believe rhinestones, crystals or glass beads present any health issue for children. Rhinestones are well-known to be safe. These stones are a classic “innocent victim” of CPSIA, like so many other safe product classes similarly affected.

We request the information that you used to support your testimony that swallowing 50 beads present a health risk to children. In particular, we believe this conclusion is dependent on two theses:

a. That swallowing 50 beads is a “foreseeable use and abuse”.
b. That swallowing 50 beads will cause a measurable change in blood lead levels (one micro-gram per deciliter of blood).

Likelihood of Swallowing 50 Beads. Based on a review of medical literature, the risk of swallowing 50 beads is minimal for “normal” children. For instance, in "Foreign-Body Ingestion in Children: Experience With 1,265 Cases", Journal of Pediatric Surgery, Vol. 10, No. 10 (October, 1999), pp. 1472-1476, the authors document 552 cases of proven foreign body ingestion but do not indicate any record of jewels being ingested. Although NEISS data (this author reviewed data from 2005) shows that jewelry is known to be ingested by children, many cases in the database are not proven (merely suspected) or involve products not relevant to this issue, and in the vast majority of cases, the swallowing are inadvertent or accidental. The accidental nature of ingestion of jewelry is quite relevant here, as the accidental ingestion of four bracelets or 20 rings in incontestably improbable. In addition, such a serious incident would take a great deal of time and an intent to create mischief, none of which is considered a “foreseeable use and abuse” of a children’s product. It is notable that rhinestones are not meant to be ingested, have no flavor or smell and are, in fact, rocks. Rocks are not food and are unlikely to be ingested by children with normal mental health or normal intelligence.

On February 2, 2009, the Fashion Jewelry Trade Association and related organizations submitted a request for exclusion of these stones from the lead limits of the CPSIA under Section 101(b) (the “February 2 Letter”). In that letter, they provided industry data on the use of decorative stones in jewelry. Notably, the February 2 letter indicates that jewelry intended for children six years or younger contains between 4-15 stones. Thus, a child of six years of age or younger would have to consume 4-13 pieces of his/her jewelry to swallow 50 beads. This appears to be a highly unusual event.

We therefore request that CPSC provide data supporting your contention that swallowing 50 beads is a “foreseeable use or abuse” of children’s products containing rhinestones, crystals or glass beads..

Likelihood of Blood Lead Level Changes. In their February 2 letter, the Fashion Jewelry Trade Association and related organizations provided a technical study entitled “Evaluation of Lead in Crystal Beads and Rhinestones” prepared by the respected consulting company, Exponent. In its study, Exponent calculates the lead leaching rate of rhinestones (with lead levels in excess of 600 ppm) in saline (mouthing, 0.15 micro-grams per gram of stones) and acid extraction (ingestion, 0.52 micro-grams per gram of stones). Likewise, it notes that one gram of the most common size of such stones (10PP) equal 333 stones. [Obviously, larger stones require fewer stones to reach one gram in mass, but the analytical results are similar.]

Studies of the daily intake of lead for children demonstrate that lead is present throughout the food system and is present in our air and water as well. As a consequence, children will inevitably consume lead throughout the day by simply breathing, eating and drinking water. [It is well-accepted that the largest source for childhood lead is house paint, followed by dirt and air.] A recent study of dietary intake of lead by children in India indicates that tolerable daily intake of lead far exceeds 10 micro-grams per day (see “Dietary and Inhalation Intake of Lead and Estimation of Blood Lead Levels in Adults and Children in Kanpur, India”, Risk Analysis, Vol. 25, No. 6, pp. 1573-1588, December 2005). Similarly, the Exponent study submitted on February 2 indicates that the FDA has determined that six micro-grams of lead per day is required to produce a one micro-gram of lead per deciliter change in blood lead levels in children six years old or younger. Thus, to produce such a change in blood lead levels from jewels would require sustained daily ingestion of 12 grams of stones (roughly 4,000 stones or hundreds of pieces of jewelry) or mouthing of 42 grams of stones (roughly 14,000 stones or more than 1,000 pieces of jewelry). Clearly, this is unlikely to occur, particularly accidentally.

It goes without saying that ingestion of 50 beads is far more likely to result in physical injury because of intestinal blockage or similar maladies than from lead poisoning. We do not believe any NEISS cases involving the accidental ingestion of jewels were considered a lead poisoning risk by the attending physicians. We kindly request that the CPSC provide data on any incident in the NEISS database documenting that the attending physician considered lead poisoning a risk from the ingestion of jewels.

We also kindly request that the CPSC provide back-up data and analysis to support your assertion that the CPSC “could not determine” whether swallowing 50 beads will cause a measurable change in blood lead levels.

The Need for Flexibility. Finally, we note that in last week’s hearings, Rep. George Radanovich asked you whether you needed “flexibility so [you] can exempt safe products”. You replied that it was ‘premature” for you to answer that question. We are concerned by your unwillingness to answer this question definitively and kindly request an explanation as to why it is “premature” to ask for flexibility to exempt safe products from the lead limits of the CPSIA. Given that the agency has a limited budget, please explain how the Commission will deploy its resources to regulate and supervise safe products, when the need to deal with unsafe products or safety risks is so overwhelmingly large.

Thank you for your prompt consideration of this important matter.

Sincerely,

Richard Woldenberg
Chairman
Alliance for Children’s Product Safety

cc: Commissioner Robert Adler
Commissioner Thomas Moore
Commissioner Nancy Nord
Commissioner Anne Northrup

CPSIA - Update on CPSIA Hearings

Some interesting news items relating to tomorrow's exciting hearings at the Subcommittee on Commerce, Trade and Consumer Protection featuring the testimony of CPSC Chairman Inez Tenenbaum:

a. Rep. Joe Barton and Rep. George Radanovich wrote a letter stating their concern over the lack of small business witnesses at the upcoming hearing. Seems reasonable to me. This letter was highlighted in a BNA article today entitled "Commerce Panel Republicans ‘Concerned’ CPSC Oversight Hearing Lacks Balance".

George Radanovich wrote another letter in advance of the hearing giving hints about what to expect tomorrow. Rep. Radanovich's letter sets out a list of questions that he asks Ms. Tenenbaum to be prepared to answer. There seems to be a lot to discuss tomorrow. Watch for the interplay between these questions and previous testimony given by the CPSC to Rep. John Dingell last Spring.

b. We have today submitted more than 110 letters to Reps. Waxman, Rush, Barton and Radanovich submitted by you, the readers of this blog, protesting the incomplete consideration of the issues caused by this law. I have posted these letters here (group letters) and here, here, here and here (letters to individual legislators). The letters will also be posted at www.AmendTheCPSIA.com. This is a great expression of democracy in action. If, by some twist of fate, the Democrats decide to listen for a change, you will know you played an important role in bringing about change. Hopefully, before it's too late.

c. To complete the sense of circus, our dear friends, the consumer groups, decided it was time to issue some press releases to spread their propaganda. I have posted their pearls here and here plus a letter to Rep. Rush and Rep. Radanovich here. This disturbing set of documents continues to promote misleading notions about the law and safety itself. It is hard to read them and believe protecting consumers is their mission, as opposed to politics.

I frankly don't have the time or energy here to rebut their many misleading remarks (or worse). Here is a short list of objectionable claims from these documents. The answer to these claims has in many or all cases been discussed in this space previously.

- The CPSIA "equipped the agency with the authority it needs".
- Children's products will be "safer" because now they must be tested before sale.
- Children will be "safer" because the use of phthalates in children's products is now banned.
- The CPSIA empowers "the CPSC to exempt certain materials from the testing and certification requirements, and to relieve those manufacturers of products that are in no danger of violating the new standards." [Exemptions under Section 101(b) are ONLY possible for mateirals that cannot EVER possibly violate standards. No discretion is possible under the law. This is a FACT.]
- The stay on mandatory testing under the CPSIA allows companies "more time to come up to speed on the new rules".
- The basis for the CPSIA was "too many dangerous [imported] products . . . on store shelves, some seriously harming, and even killing, their customers".
- "The CPSC had neither the funds nor the regulatory authority to effectively solve these problems. . . ."
- "Consumers lost confidence in our product safety net because of the many recalls of children’s products and the numerous deaths and injuries posed by those products."
- "[T]he CPSIA turned voluntary standards for toys and other juvenile products into mandatory requirements which will help to ensure that those products meet safety standards." [Ms. Tenenbaum has publicly stated that voluntary standards are effective and work well. The statement made by the consumer groups appears to be factual but is actually only their political platform.]

And . . . according to the propaganda sheets, the following items are apparently "myths":

- CPSIA deadlines were unrealistic
- CPSIA provisions . . . make it harder to do business.
- CPSIA has to be changed through additional legislation to address business concerns about expensive testing and exemptions of certain products.

Finally they cite the AAP's uncontested but highly misleading testimony about lead. As you may recall, this testimony prompted the assertion that with its "perfect legislative process", the CPSIA was perfect, too, and thus would not be reopened. I have rebutted the AAP testimony on more than one occasion, most notably here.

You will be able to watch the hearing online at the website of the Subcommittee. Try this link and if it doesn't work, check out the website of the Subcommittee for a better link.

CPSIA - Time to Write Mr. Waxman et. al.

The House Subcommittee on Commerce, Trade, and Consumer Protection has scheduled a hearing on Thursday, September 10 at 10:00 AM. The hearing is entitled “Consumer Product Safety Commission Oversight: Current Issues and a Vision for the Future.” The Subcommittee inexplicably is planning to call exactly ONE witness, CPSC Chairman Tenenbaum, to discuss the CPSIA.

I disagree with the Subcommittee on this decision. The business community (particularly Small Business) raised many legitimate and serious objections to this law and its implementation. To exclude the business community from this hearing is to distort the truth and to keep inconvenient views off the record. It's wrong.

There is something we can all do. We must URGENTLY write the Committee and Subcommittee to express our strong objections over calling only one witness. Remember, this is the first hearing sponsored by this committee since the bill passed 13 months ago. [Doesn't that make your blood BOIL?!] The hearings are set for next Thursday (seven days away, including a holiday), so this is a "today" project. Please HELP. Thanks.

Here's how to do it:

a. Prepare your letter, ideally on your business letterhead, and send it to me at HOUSECPSIAHEARING@COX.NET. We will deliver the letters to the appropriate parties by hand.

b. Format:

[Date]

The Honorable Henry Waxman
Chairman

The Honorable Bobby Rush
Subcommittee Chairman

House Energy and Commerce Committee
2125 Rayburn House Office BuildingWashington, DC 20515

The Honorable Joe Barton
Ranking Member

The Honorable George Radanovich
Subcommittee Ranking Member

House Energy and Commerce Committee
2322A Rayburn House Office Building
Washington, DC 20515

Dear Chairmen and Ranking Members:

[Letter body]

Sincerely,

[Your Name]
[Your Title]
[Email address or Cell phone]

The body of my letter is shown below. You are welcome to use my letter for inspiration, but it's probably best if you write your own letter.

Thanks for your help!


My letter:

"Dear Chairmen and Ranking Members:

I am writing in regard to the Committee hearing set for September 10, 2009 in which the Hon. Inez Tenenbaum, Chairman of the U.S. Consumer Product Safety Commission (CPSC), is scheduled to testify on the implementation of the Consumer Product Safety Improvement Act (CPSIA).

I am very disappointed that no small businesses impacted by the new law have been invited to share their experiences in testimony before the Committee. The business community has been actively calling for hearings since the passage of the CPSIA because of the draconian effects of the new law. Our family business makes educational products for schools and has an exemplary 25-year safety record because of our hard work to assure high quality and compliance with law. Yet the innumerable, onerous provisions of the CPSIA have had a devastating impact on our ability to conduct business. These issues need to be explored by the Committee based on the testimony of real companies suffering real pain.

The problems caused by the law are myriad. The overly broad definition of “children’s products” swept in many products incapable of harming children from lead or phthalates. The CPSC itself has been hobbled by the CPSIA’s strict new rules that prohibit risk assessment. The agency has no flexibility to exercise judgment and as a result, have issued impractical guidance and unworkable regulations. In addition, the exemption process under the law is both very limited and very expensive.

The severe penalties under the law are not scaring companies into compliance – they are shooing companies out of the market. Even the CPSC’s own guidance to resale shops advises stores to consider the option to stop doing business in children’s products.

The deck is stacked against small business under the new law. Ironically, while crafters are left to puzzle over how to “ascertain” co-hort information on their products, the new law awards a freebie to large businesses who seek to test their own products.

I strongly believe that the perspective of businesses like our company is essential to a complete picture of the problems caused by the CPSIA and its implementation. Thank you for your consideration of this important matter.

Sincerely,"

CPSIA - Letter to John Dingell re his March 4 Letter to CPSC

I sent the following letter to Chairman John Dingell of the House Committee on Energy and Commerce today in response to his March 4 letter on the CPSIA. We are also sending copies of all the letters sent to commentsfordingell@cox.net to Chairman Dingell. My letter was sent to my full list of Capitol Hill contacts, as well.

FYI

Rick

http://www.learningresources.com/text/content/CPSIA/dingell.html

CPSIA - Letter of Etienne Veber to Rep. John Dingell

Dear Chairman Emeritus Dingell,

Thank you very much for showing true political leadership in asking that many serious CPSIA issues be addressed urgently. I hope that your recent letter to the CPSC will lead to prompt action to correct the excessive reach of this law and to reinvigorate a productive dialogue with the children’s product industry.

I am the President/CEO of Learning Resources, Inc. and Educational Insights, Inc., global leaders in hands-on learning educational toys and educational materials for children between the ages of 2-13. At our companies, we create engaging products in the subject areas of Reading/Language Arts, Math, Science and Social Studies for use at home and at school. Our products are used in almost every pre-K – 5 classroom in the United States, as well as in more than 80 countries around the world. While our main focus is on the school market, we also sell into the Toy market. I recently joined the Board of the Toy Industry Association (May 2008).

As a senior executive of a small educational products business (less than 150 employees), I am deeply concerned about the many unintended and devastating consequences of the CPSIA. Our Chairman, Rick Woldenberg, has taken a public stance on this issue for several months. For that reason, I would like to offer a different perspective based upon my own professional experience of 20+ years. Before joining Learning Resources in 2005, I worked for a number of years in the food industry, first as the President of NutraSweet (a subsidiary of the Monsanto Corporation) and later as CEO of Merisant, Inc. (maker of the Equal/Canderel brand sweetener). As a leader within that industry, I gained first-hand management experience of how highly-regulated (artificial sweeteners, biotechnology) as well as mass market-driven industries function.

The CPSIA imposes a regulatory burden on the children’s product industry that is as unmerited as it is excessive. While health issues related to biotech or food products are rather obvious, the risk of injury from the use of children’s products is not nearly so clear. Owing to the breadth of the definition of “children’s products” or even “toys” subject to the phthalates ban, the sweep of items included in the restrictions encompasses many items or categories of items that have never presented any risk of injury from poisons. A good example is books. The burden thus imposed is excessive (unrelated to risk) and unmerited (won’t improve safety if there was never an issue with safety). Both the lead and phthalates bans need to be carefully constrained to avoid unnecessary harm to commerce.

The children’s product industry is not prepared for the sudden imposition of heavy regulatory burdens. These changes will definitely lead to business closures and severe job losses. My experience at highly regulated industries is that their products must generate a lot of gross profit to cover high compliance costs. For instance, it can cost hundreds of million of dollars to take a drug or a food additive through the FDA approval process. Clearly, any manufacturer or marketer needs to achieve a reasonable return on such a massive investment to make the risk, effort and investment worthwhile. Children’s products are typically commodities and are priced low in a very competitive marketplace. The overhead and infrastructure needed to comply with the CPSIA is more than all but a tiny percentage of American children’s products businesses could handle. Compliance activities under the CPSIA are completely unreasonable for small manufacturers, single location stores or even small retail chains. By placing this burden (and the associated risk of civil and criminal penalties) on companies in this space, the new law will certainly foster and accelerate a transformation of the business community toward mass consolidation. This pressure is why there are no small drug or food ingredient companies anymore, and that’s why the CPSIA will make small children’s products companies an endangered species, too.

In a highly regulated industry, it is absolutely critical to capitalize on all of your investments. Products are simply too expensive to develop and obtain permission to sell, to be allowed to fail. It is therefore likely that highly regulated industries will concentrate on very few items after a Darwinian selection process. At my former company Merisant, we had two basic product lines, Equal (little Blue packets of sweeteners) and Canderel. These two items produced several hundred million dollars in annual revenue alone. By contrast, Learning Resources and Educational Insights have about 2000 items in their product lines and introduce as many as 200 new items each year. Despite our large product portfolio, our total annual revenues are substantially lower than that of Merisant. Do you think we can afford to run our companies the same way after the CPSIA? Certainly not – many of these items will quickly die because of the regulatory change. The kids and schools that need them will suffer, and because there was no quantifiable risk of injury from our products previously, it cannot be argued that anyone will actually be safer after we transform our company into its post-CPSIA form. This is a “lose-lose” proposition for our society.

Here are several comments that Congress needs to consider seriously to ensure the safety of our children without destroying law-abiding companies that are already suffering greatly in a depressed economic environment:

1/ Create an adequate transition period for new standards. There is virtually no precedent in CPSC history for a retroactive ban on anything, much less where there is no apparent public health crisis. It is unconscionable to impose "economic death" to good corporate citizens by labeling many of their assets as dangerous when in fact the products present no quantifiable risk of injury. Even the Prohibition gave industry years to clear out its supply chain. The timetable of implementation needs to be spread out over a much longer time to give companies time to absorb and adjust to the new rules, as well to foster a more effective partnership between the regulators and the industries being regulated.

2/ Sharply restrict use of the heavy penalties in the CPSIA. No one running a legitimate business with due care for their consumers should be exposed to the same remedies as "drug dealers". This is one of the most outrageous elements of the current version of the CPSIA and insults a broad swath of American society. The current law provides broad discretion to the CPSC to impose “instant death” remedies like million dollar fines, criminal charges and even asset forfeiture! These remedies should be extraordinary, not ordinary, and the law should specifically restrict their use. Otherwise, who would want or risk doing business under these conditions? The whistleblower provision is another highly coercive provision in the CPSIA that should be sharply curtailed or eliminated. It is utterly inappropriate in this law and under these circumstances.

3/ The lot traceability provisions of the CPSIA should be scrapped. Absolute traceability of individual production lots is not practicable (nor frankly justified) in the world of specialty products. The key concern is that a manufacturer must be able to efficiently identify a recalled product if indeed an issue arises. Many companies have demonstrated in the past that this can be achieved without lot markings. In addition, any company not marking by lot would always be able to retrieve all items from the market that cannot otherwise be specifically identified. The economics of lot markings are easy to assess for any manufacturer. If it is cheaper to mark by lot than suffer the open-ended economic consequences of a product failure, then manufacturers will mark their products. In this case, where public health risks are very remote, it does not make economic sense to require markings.

4/ The law should not require recall insurance nor give the CPSC the ability to create such a rule. The cost of such insurance would be absolutely prohibitive for small companies to bear. In addition, there is no market for recall insurance right now. Who is going to provide the insurance? AIG? This provision is yet another element of the CPSIA that punishes the many to get at the few. The failure of Simplicity to provide adequately for a recall of its cribs after bankruptcy is no justification to punish all who dare make children’s products in the future.

5/ The funding of the CPSC is inadequate and needs to be fixed. The CPSC is a good organization made up of talented folks who are highly committed to serving our government and country. The agency is clearly under-funded and under-staffed for the mandate they have under the CPSIA and other safety laws. Blaming the CPSC for CPSIA implementation problems is not justified and does not address the fundamental issue of inadequate resources. Funding for the CPSC needs to be considerably enhanced to facilitate a smoother implementation of the CPSIA.

As a highly responsible and law-abiding manufacturer of children’s products, we urge Congress to implement reasonable and common sense amendments to the CPSIA to fix its many serious flaws. Congress’ failure to act would have disastrous implications for the many industries involved, our economy as a whole, our education system and our children. We cannot afford to take that kind of risk. As the impact of the CPSIA is already starting to cripple many companies, there is a great deal of urgency in acting both sensibly and quickly.

I am happy to participate in any meeting, hearing, roundtable or discussion to help reach an acceptable outcome for all parties. Learning Resources has had an outstanding track record in safety for 25 years and we take these matters very seriously.

Respectfully,

Etienne Veber
President/CEO
Learning Resources, Inc.
Educational Insights, Inc.
380 N. Fairway Drive
Vernon Hills, Illinois 60061
eveber@learningresources.com
W (847) 573-8422
C (312) 493-8985